Extraterritorial Jurisdiction Research Articles

Impact of the amended Chinese Marine Environmental Protection Law on the law enforcement action of the Coast Guard — With a focus on the discharge of ballast water after Japan’s releasing of nuclear wastewater into the sea

After Japan released nuclear wastewater into the Pacific Ocean, China amended and promulgated the Marine Environmental Protection Law (MEPL) on October 24, 2023. The 2023 MEPL grants the Coast Guard extraterritorial jurisdiction over marine environmental protection. Meanwhile, it removes the content related to immunity for the disposal of radioactive substances and strictly prohibits the discharge of such substances into the sea. It is suggested that the 2023 MEPL will impact Coast Guard law enforcement actions, particularly in cases involving the punishment of marine pollution caused by nuclear wastewater. Additionally, China's Civil Procedure Law on jurisdiction over foreign-related infringement cases was also amended in 2023. Chinese courts have gained broader jurisdiction in foreign-related tort cases. As a result, Japanese parties will face the risk of civil damage compensation litigation due to the disposal of nuclear wastewater.

Comparing universal jurisdiction in Europe and in Latin America: a vehicle for international justice or for colonial reckoning?

ABSTRACT A particular concern in recent years has been the limited options for prosecutions of persons responsible for atrocities in States not amenable to ICC jurisdiction. The need for accountability for atrocities builds on long histories of human rights and humanitarian law practice, both treaty-based and customary in nature, which has been driven also by the work of the ECtHR and the IACtHR mechanisms. At the domestic level, ever since the Pinochet decision, universal jurisdiction (UJ) has been considered a promising way to fill the lacuna. Indeed, some commentators have observed a resurgence in the use of UJ in recent years based on a number of trials of ex-ISIS and Syrian regime members in European courts. Yet UJ as it has been practised has serious limitations. While there are exceptions, many European states are steadily turning the exercise of UJ into the application of extraterritorial jurisdiction based on active or passive personality, especially in relation to their former colonies. In Latin America too, there have been some recent examples of investigations and prosecutions on the basis of ‘pure’ UJ, but the vast majority of exercises of jurisdiction are in furtherance of extraditions, particularly at the behest of former colonial powers. This article compares the recent uptick in European and Latin American usages of UJ, concluding that to date both regions still exhibit little appetite for pursuing ‘pure’ UJ. It warns that significant colonialist pressures in both regions threaten to limit this crucial mechanism for international justice.

The Twilight of the Law of the Fairs: Inventing International Cooperation on Bankruptcies in Early Modern Europe (Lyon, 1660–1710)

Abstract Bankruptcy was a key institution in the development of markets in Europe. However, the territoriality of jurisdictions and legal systems made international insolvencies difficult to manage. In the middle of the seventeenth century, cities such as Lyon developed networks of cooperation by granting foreign merchants equal rights to local creditors on a reciprocal basis. However, courts were reluctant to give foreign authorities control over assets and creditors on their territory. The article examines how the Lyon commercial court changed its policy towards international insolvencies during the second half of the seventeenth century. Whereas equal treatment of foreign creditors was conditioned on the recognition of an extraterritorial jurisdiction in the medieval fairs system, it now depended on the reciprocity of the legal status granted to merchants abroad. This system of cooperation between equally sovereign courts prefigured in many ways the current situation of private international law in bankruptcy matters.

Multinational Enterprises and Human Rights Protection

Multinational enterprises are playing an important role in economic globalisation. Meanwhile, it is common for multinational enterprises to violate human rights overseas while it is difficult for victims to seek remedies. The international law which can regulate human rights violations by multinational corporations are mostly soft laws, but there is a lack of guarantees for the implementation of soft law. In domestic law, most host countries are developing countries that cannot regulate multinational enterprises effectively. And home states lack the will to regulate multinational enterprises because their interests are so closely linked. There are also obstacles like the exercise of jurisdiction and the corporate veil which prevent the multinational enterprises responsible for human rights overseas. Therefore, this essay clarifies the extraterritorial jurisdiction, the non-harm principle and the human rights due diligence to support the responsibility of multinational enterprises. Eventually, this essay clarifies that it is necessary to narrow the gap between the ideal of hard law and the reality of soft law in international law. In the meantime, host states and home states should both strengthen the legislation of human rights due diligence and protection for high-risk industries. Harmonious interaction and co-development of international and domestic law should also be considered and the non-governmental organisation should issue guidelines, and strengthen the regulatory role.

Catching Up: The European Court of Human Rights Approximates its Approach to Extraterritorial Jurisdiction Over Digital Surveillance to That of the Human Rights Committee

Catching Up: The European Court of Human Rights Approximates its Approach to Extraterritorial Jurisdiction Over Digital Surveillance to That of the Human Rights Committee

By What Jurisdiction? Law, Settler Colonialism, and the Geographical Assumptions of IR Theory

Abstract In this article, I consider critical writings on territory in International Relations, focusing on recent work on U.S. practices of extraterritorial jurisdiction. I suggest that, while such work has importantly traced the multiple ways in which U.S. authority often exceeds the supposed territorial boundaries of the United States, it has nonetheless failed to reckon with the contested and uneven nature of U.S. authority within such supposed boundaries. In particular, IR scholarship has failed to engage with the ways in which U.S. authority has been, and continued to be, contested by Indigenous people and nations. This failure is the product of an assumption that lies at the heart of the discipline—the assumption that Indigenous people are internal to colonizing or settler states. I suggest that the internalization of Indigenous people and Indigenous political organization that is at play in much IR scholarship is not simply a product of a generalized “state-centrism” or a product of histories of settler colonialism, writ large. Rather, at the heart of the territorial assignations and allotments of IR scholarship are assumptions about legal authority or jurisdiction—about who has jurisdiction to define and assign land, about who does not, and what law means at all. Critiquing these assumptions and their political implications, I show the importance of asking: “by what jurisdiction”? That is, what is the legal authority that we implicitly accept and assert when we designate territory in particular ways? The question insists that there are multiple laws (including multiple international laws) at play in global politics and opens up space for critical and postcolonial IR scholars to better take responsibility for their (often implicit) choices between multiple laws.

Unilateral coercive measures against Cuba, secondary sanctions and “crawling” extraterritorial jurisdiction

Is a retrospective review of the U.S. regulatory policy and sanctions imposed on Cuba, citizens and legal entities of this country, as well as against third countries and persons related to this state. The aim is to comprehensively understand the scope of such restrictive measures. The research provides a brief analysis of the impact of such measures on civil and business relations along with examples of secondary sanctions and the use of extraterritorial jurisdiction, which have a negative and long-term impact on the business partners in terms of excessive compliance with restrictions (overcompliance). The authors offer assessment of concepts of economic coercion, extraterritorial jurisdiction, as well as limits of responsibility of private and public actors for breach of legal obligations due to compliance with sanctions restrictions. Continuing the study of issues related to consequences of unlawful unilateral application of restrictive economic measures against a number of states by the U.S., the EU and imposition by countries of their jurisdiction on the parties of a dispute, including those complicated by a foreign element, in the process of dispute resolution , raised by authors' colleagues on scientific research in their published scientific articles (Tsepova E.A. Unprecedented law: Protecting the Russian financial system against the impact of sanctions. RUDN Journal of Law . 2022. Vol. 26. No. 3, 655-677; Ermakova E.P. When the “pro-arbitration” policy of the United States becomes aggressive . Eurasian Law Journal . 2023. No. 5 (180), 77-80; Rusakova E.P., Frolova E.E. Digital disputes in the new legal reality. RUDN Journal of Law. 2022. Vol. 26, No. 3, 695-704), the authors come to the conclusion that it is necessary to develop obligations directly as the duty of businesses to comply with universally recognized norms regarding property, non-discrimination, legal certainty even under the pressure of secondary sanctions and unlawfully expanding extraterritorial jurisdiction of certain countries imposing sanctions, as well as understanding the complex negative impact on the structure of all levels of the economy and sustainable social relations, as well as de jure existence of already designated legal positions on the need to gain consolidated support from all the actors of international communication to overcome the existing rupture: condemnation and recording of illegality in the public law field and forced compliance with such non-legal requirements of certain jurisdictions in the domain of private law relations.

“I Let Him Have It”: Sex, Anti‐Americanism, and Criminal Justice in Wartime Brisbane, 1942–44

With combat in Second World War shifting to the Pacific region after the 1941 Japanese attack on Pearl Harbour, the Allied General Headquarters was established in Brisbane, Australia, in July 1942. American military personnel in wartime Brisbane were subject to a two‐tier criminal justice system, with the US military claiming extraterritorial jurisdiction over all crimes committed by American troops in Australia. In practical terms, this meant that American soldiers rarely faced local justice, which contributed to existing tensions between the American contingent and the Australian public. Although Americans accused of crimes were typically transferred to US custody, this jurisdictional arrangement did not extend to cases where Americans were victims of crimes allegedly committed by Australians. This article draws on extensive historical research to examine one such case, wherein American soldier Robert L. Norwood was killed by Australian Alma Muriel Morgan. By focussing on this case from the investigatory phase, and through the court process, it is possible to garner insight into the American experience with the Queensland legal system during the Second World War and to consider whether anti‐American tensions (particularly around sex) unduly impacted on securing justice where Americans were victims of crime.

Towards carbon neutrality in shipping: Impact of European Union's emissions trading system for shipping and China's response

Global climate change and the rising volume of world trade have made achieving carbon neutrality in shipping essential for meeting the temperature control targets outlined in the Paris Agreement. Consequently, the European Union (EU) has emerged as a strong advocate for carbon neutrality in shipping and is integrating the shipping industry into its Emissions Trading System (ETS) to enable decarbonisation. The EU's unilateral measure is expected to trigger a series of reactions from the global shipping industry. As a result, China, both a major shipping country and developing nation, could potentially attract significant international attention. This study examines the EU ETS for shipping from the perspective of international law. On one hand, the "Kyoto Protocol" does not exclude parties other than the International Maritime Organization (IMO) from taking unilateral measures to address the issue of carbon emissions from shipping. Furthermore, in accordance with the principle of national territorial sovereignty stipulated in the United Nations Convention on the Law of the Sea (UNCLOS), the EU has the right to reduce shipping emissions only within its national jurisdiction. Therefore, the EU has the legal authority to adopt an ETS for shipping, but the effectiveness of its extraterritorial jurisdiction lacks the support of international law. However, since the EU ETS for shipping applies to all ships without distinction, it may potentially violate the principle of Common but Differentiated Responsibilities (CBDR), which could have negative implications for the shipping industry in developing countries. This study focuses on China as the research subject and offers potential solutions for the country when addressing the EU ETS for shipping.

Conceptualising Extraterritoriality. Public International Law and Private International Law Considerations

Abstract The aim of this article is to analyse extraterritoriality from public international law and private international law perspectives. Although many scholars relate the exercise of extraterritorial jurisdiction to both private and public international law, in practice the topic is mainly considered as belonging to the latter. Moreover, extraterritorial jurisdiction is not a common notion under private international law. Perhaps because the extraterritorial norm is intended to regulate first and foremost state conduct and not relationships between private persons, but this vision does not take into account that the latter are frequently affected by the norm. It is argued here that from a public international law perspective, the legal framework of extraterritorial jurisdiction is unsettled and incomplete. The bottom line is that states are largely free to unfold their power, given that international law does not really regulate extraterritorial jurisdiction but only establishes the negative obligation not to trespass on state sovereignty. Thus, considering extraterritorial jurisdiction from a national perspective, in this paper, under the general framework of private international law is not only necessary but also justified. In addressing the above, this article will first analyse extraterritoriality as an exception under public international law (2). It will reflect on the lawful/unlawful grounds for the exercise of extraterritorial jurisdiction and will show that the abandonment of territoriality in jurisdictional assertions is more desirable than feasible. Then extraterritoriality will be analysed as an inherent feature of private international law, that can be traced in all three domains regulated by the private international law (3). It will also make a case on the extraterritorial reach of national constitutions.

CYBERCRIME LEGISLATION: A COMPARATIVE ANALYSIS OF LEGAL FRAMEWORKS, POLICY RESPONSES AND RECOMMENDATIONS

The World Economic Forum's Global Risk Report 2021 highlights cybercrime as a top global risk, necessitating robust legislation to address its evolving nature. The United States signed two cybersecurity bills into law in June 2022, aiming to enhance the federal cyber workforce and promote coordination on security issues. This paper exams a comparative cybercrime legislation across various jurisdictions, including the United States, reveals divergent approaches, with the United States adopting a decentralized model, while Germany and Singapore opt for centralized regimes. This paper highlights the need for comprehensive legal frameworks to combat cyber threats effectively, key trends and challenges in cybercrime legislation include the need for harsher sanctions, extraterritorial jurisdiction, and balancing legal principles in sentencing. Best practices and recommendations emphasize international collaboration, capacity building, public-private partnerships, technological solutions, and continuous legislative review. Future solutions emphasize the importance of rigorous monitoring and adaptable legal frameworks to address the evolving landscape of cyber threats. By understanding international laws and collaborations, policymakers can develop innovative policies to safeguard digital environments against cybercrime.

Owning and Owing: Israel’s Law on Extraterritorial Jurisdiction Related to Jews

Owning and Owing: Israel’s Law on Extraterritorial Jurisdiction Related to Jews

Comity & Federalism in Extraterritorial Abortion Regulation

On June 24, 2022, the Supreme Court decided Dobbs v. Jackson Women’s Health Organization and held that states may regulate abortion in whatever manner they wish. In the wake of Dobbs, commentators and laypersons have focused primarily on its implications for reproductive rights and other fundamental rights—such as gay marriage. Less often discussed are the questions that arise regarding state extraterritorial jurisdiction. Since Dobbs, a patchwork of laws has developed: pro-life states have placed greater restrictions on abortion, while pro-choice states have sought to expand abortion access. Questions have arisen regarding whether and to what extent states may regulate the out-of-state conduct of pregnant women who seek abortions, those who provide assistance to pregnant women seeking to terminate a pregnancy, and abortion providers. This patchwork has the potential to generate interstate conflict and creates new urgency for thinking about the legal and constitutional principles that constrain state extraterritorial legislative jurisdiction. This Article first outlines each states abortion laws, then explores state legislative jurisdiction, and the various barriers that constrain expansive legislative jurisdiction, and finally identifies why expansive legislative jurisdiction would be detrimental to both the Union and individual liberties. Ultimately, the current doctrine has gaps that create risks for comity among the states, and for individuals and businesses attempting to conform to the law of a given state. These gaps should be closed, and should be closed in a way that preserves horizontal federalism.

An Exploratory Study of Compensation Management of International Organizations: Focused on the UNMCK Case

This paper compares the UN organization's employee compensation system to Korean government officials' wages, focusing on fairness perceptions among UN-affiliated employees. It analyzes how the International Management Committee's decisions on the compensation level of the UN Memorial Cemetery in Korea (UNMCK) influence employee expectations. Factors like work valuation, capacity, achievement, and pension payments shape fairness perceptions. The study highlights the importance of considering job types in cross-country pay comparisons and emphasizes assessing expertise in reference group formation. Findings reveal UNMCK employees' remuneration exceeds agreed levels for Korean officials due to recruitment methods, rank determination, and wage increases. Critical insufficiencies in severance pay regulations, provided without individual contributions, are noted. The paper recommends a new, fair, and rational compensation system, emphasizing transparency, accountability, and audit practices within extraterritorial jurisdiction. Further research on international organizations' human resource management, aligned with the Korean government's strategies, is proposed for talent attraction and management. In conclusion, the study underscores the importance of a fair UN compensation system, offering implications for international organizations and APEC member economies, emphasizing transparent and accountable compensation systems and effective governance.

Eradicating the exceptional: The role of territory in structuring international legal thought

AbstractThis article examines the idea of the sui generis in international law and explores how these exceptions structure international legal thought. Exceptions are useful to international law theorizing because they create easy manageable narratives which explain situations not fitting traditional paradigms, yet as a category in their own right – specifically how they are structured and how they operate – they are often undertheorized. The two examples explored in this article are sui generis actors and the concept of extraterritorial jurisdiction. I demonstrate the foundational role played by (state-)territorialized thinking in the creation of oppositional categories: state and non-state, and the non-exceptional and exceptional exercise of jurisdiction. The category of exceptions has significantly expanded from the likes of the Holy See and irregular exercise of extraterritorial jurisdiction to a broad array of actors, such as international organizations and transnational corporations, playing growing and varied roles in contemporary law-making and governance and the regular exercise of extraterritorial jurisdiction by states. Rather than continuing with this overextended category, the article argues it is instead possible, by rethinking international law’s spatial imaginary, to first, better understand the spaces of non-state actors and regularized exercise of extraterritorial jurisdiction and second, eradicate the now overstretched legal category of ‘sui generis’.

Doctrinal Effect: Implikasi Yuridiksi Ekstrateritorial Hukum Persaingan Usaha

The Effects Doctrine creates an important basis for the application of local law outside of its territory. It reflects the understanding that in this day and age, actions taken in one jurisdiction can significantly affect other jurisdictions. The use of competition law extraterritorial jurisdiction, based on the effects doctrine, has long been debated. The purpose of this study is to discuss the application of extraterritorial jurisdiction to competition law in Indonesia. This research uses the normative juridical method to analyze legal norms and principles. The approaches used include statutory approach, comparative law approach, and case approach. The result of this research is that regulations regarding the prohibition of monopolistic practices and unfair business competition have not explicitly regulated extraterritorial norms in Indonesia. However, the Business Competition Supervisory Commission made a legal breakthrough by applying the extraterritorial principle to resolve the involvement of foreign business actors and impose sanctions on them. This article argues that Indonesia significantly needs to amend its competition law and increase cooperation with other countries to enforce competition law.

Exploring public support for extraterritorial jurisdiction over natural resource extraction: Survey insights from the United States

Over the past two decades, a number of national policies have been implemented with the aim of holding companies accountable for their actions abroad. While previous studies have examined the political processes leading to the formulation of these policies, there remains a significant gap in our understanding of public support for such measures. This paper seeks to address this gap by examining the extent to which domestic audiences endorse the concept of extraterritorial jurisdiction concerning the conditions under which natural resources are extracted abroad. The analysis presented in this paper is grounded in a representative online survey conducted in the United States, encompassing a sample size of 660 respondents.Overall, the survey findings reveal widespread public endorsement for the notion that U.S. companies should be held answerable under domestic regulations for their activities conducted overseas. When presented with the specific case of conflict minerals and various policy options, approximately half of the respondents identified the governments of end markets as one of the top three responsible actors for addressing this issue. While individuals' political ideologies exhibited a certain degree of correlation with their likelihood of supporting these policies, the link with their broader foreign policy beliefs was stronger. Those individuals who espoused a more cosmopolitan outlook and exhibited less isolationist tendencies were found to be more inclined to support extraterritorial jurisdiction policies.In conclusion, the study's results underscore the fact that the promotion of policies designed to hold domestic companies accountable for their overseas actions enjoys substantial public backing, transcending partisan lines. Furthermore, these findings emphasize the significant role played by broader conceptions of a country's role in international affairs in shaping public opinion on this matter.

Extraterritorial (Automated) Jurisdiction in Writ and Summary Proceedings in the Conditions of the Digital Transformation of the Civil Procedure

Extraterritorial (Automated) Jurisdiction in Writ and Summary Proceedings in the Conditions of the Digital Transformation of the Civil Procedure

Perspectives of Extraterritorial Jurisdiction for Environmental Damage in the Proposal of the European Directive on Corporate Sustainability Due Diligence

Abstract The Proposal of the Directive regarding the Corporate Sustainability Due Diligence provides new judicial protection for environmental damages and climate litigation caused by corporations, even in an extraterritorial context, considering the Directive’s scope of application. This prompts a discussion about the exercise of an extraterritorial jurisdiction by Member States’ courts. At European Union level, the titles of jurisdiction, identified in the Brussels I Recast Regulation, allow foreign victims to proceed before the court of a Member State, but only if the parent company is established in that specific Member State. Otherwise, these criteria are generally considered inadequate and insufficient. The proposed Directive seems to be a new opportunity to reform the European private international law, aligning it with the right to access to justice, as provided by Article 10 of Universal Declaration of Human Rights and Article 6 of the European Convention on Human Rights.

The Chinese Approach to Extraterritoriality

Abstract: China has abandoned its traditional territorially focused approach and has begun to assert extraterritorial jurisdiction by unilaterally regulating and intervening in activities occurring in the territory of other countries. China's view of extraterritoriality is derived from its strong economic power and evolves in the context of recent US–China tension. Its extraterritorial jurisdiction operates as a shield rather than as a sword; guided by pragmatism, however, China has retained the flexibility to utilise extraterritorial jurisdiction for other purposes. Extraterritoriality would serve the international community better if China regarded it as a rebalance of power between nations to form a rules-based international jurisdictional framework and not as an instrument to expand national power abroad.