Jurisdiction In International Law Research Articles

Pros and Cons of Application of Extraterritorial Jurisdiction in International Law: Various Practices in Southeast Asian Countries

Extraterritorial Jurisdiction (ETJ) is the legal ability of the government to exercise authority beyond its normal limits. Any authority can claim the ETJ over any external territory they wish. However, for the claim to be effective in the outer region (except by the exercise of force), it must be agreed either with the jurisdiction in the outer region, or with the jurisdiction covering both areas. When not eligible, the ETJ is usually referred to as an agreed jurisdiction, or what will be referred to as an ETJ claim. At the implementation level, the application of the principle of extraterritorial jurisdiction will certainly encounter a number of obstacles, especially when dealing with the jurisdictions of other countries. The principle of extraterritorial jurisdiction may not be fully implemented because a country cannot in fact exercise its power in the territory of another country even though it has jurisdiction over a legal act, legal subject/object, and certain legal interests.

The international law of jurisdiction: A TWAIL perspective

AbstractThe concept of jurisdiction is a relatively undertheorized category of international law. Mainstream international law scholarship advances an ahistorical and asocial account of the rules of jurisdiction in international law. The present article contends that any serious understanding of the categories and rules of jurisdiction, in particular that of extraterritorial jurisdiction, calls for deep appreciation of the evolving material structures over time. It argues that the key factors that have influenced the evolution and development of the doctrine, rules, and practices of jurisdiction are the emergence of the modern state, capitalism, and imperialism. In order to appreciate this contention there is a need to undertake on the one hand a genealogical analysis of modern state and capitalism and on the other hand problematize the categories ‘territory’ and ‘extraterritorial’. The internal relationship between capitalism and imperialism has meant that, despite the territorial organization of the international system, a process of harmonization of legal rules has taken place across geographical spaces in both colonial and postcolonial eras. The outcome is a critical loss of policy and legal space for nations of the Global South. In the colonial era the outcome was achieved through legislation in the instance of colonized nations and through capitulation regimes in the case of semi-colonies. The strategy of advanced capitalist states in the postcolonial era for achieving harmonization of laws has been multi-layered and multi-dimensional. The article concludes by touching on two models of reform of the rules and practices of jurisdiction viz., liberal and subaltern internationalism.

Способы преодоления фрагментации международного права в деятельности римского Сената и народного собрания в V–III веках до н. э.

The article deals with the problem of fragmentation of international law on the example of the collision of jurisdictions of two main courts that operated in the field of international disputes in Rome of V–III centuries BC: the court of the Senate and the court of the people. Starting from the characteristics of the judicial functions of the Senate and the people of Polybius, the author distinguishes three periods of confrontation between the courts of the Senate and people in V–III centuries BC. The first period, from the beginning to the middle of V century BC, characterized by the fact that the patrician Senate did not recognize the authority of the court of the people. However, the case 446– 442 BC showed that the Senate court finally recognized the supremacy of the people's court. The second period, from the middle of the V to the beginning of the III centuries BC, represented by the cases of 446 and 391 BC, is characterized by the dominance of the people's court, which, however, in comparison with the senatorial court showed its low professional qualities: ignorance of international law and arbitration and making decisions based on their own interests, ignoring the legitimate interests of other peoples, neglect of the professional knowledge of the fathers-senators. The third period, from the middle of the III century BC to the last quarter of the II century BC, represented by the case of 204 BC, shows that the court of the people finally recognized the authority and professionalism of the senatorial jurisdiction in international law, which allowed Polybius to speak about the non-interference of the people in the judicial affairs of the Senate. However, the Senate case of 204 BC is one of the first examples of the prosecution of Roman magistrates brought to trial on charges of Roman-allied city-States. In conclusion, the author considers Cicero's recommendations for overcoming fragmentation in the activities of the two courts. As regards Senators, he advised them to maintain high moral and professional level, and the people's suffrage in tribunal he advises to rely on the opinion of optimaton, the most authoritative from the point of view of morals and professional qualities.

Rethinking Adjudicative Jurisdiction in International Law

The contribution of national courts to international law has long been doubted in the international law literature. As an aspect of the state’s power to prescribe, courts have been conceived as organs that merely apply the state’s laws, which may give effect to an international law norm. According to this conception, national courts merely apply and operate within the state’s national legal system and rarely have a direct contribution to international law. However, in enforcement proceedings for international arbitral awards, arising at the intersection between the law of state immunity and the law governing the enforcement of arbitral awards, a number of cases challenge this interpretation. In this area, adjudicative jurisdiction may be emerging as a specific manifestation of the state’s enforcement jurisdiction –– that is, the power to induce or compel compliance with a state’s laws. In view of the lack of clarity regarding the lawful scope of a state’s enforcement jurisdiction in international law, which is arising increasingly in a globalized world where jurisdictional disputes cross territorial borders, the approach put forward in this study may be useful for uncovering potential state practice which may crystallize as customary international law. This article seeks to draw attention to this practice, illustrating how a conception of adjudicative jurisdiction as enforcement jurisdiction is not only timely and useful, but also potentially reflective of emerging state practice. It sets some normative foundations for how such an approach may be defensible and identifiable, thereby proposing that this topic is worthy of further exploration.

A Proposal for the International Law Commission to Study Universal Criminal Jurisdiction

The principle of universal jurisdiction is a unique ground of jurisdiction in international law that may permit a State to exercise national jurisdiction over certain crimes in the interest of the international community. This means that a State may exercise jurisdiction regarding a crime committed by a foreign national against another foreign national outside its territory. Such jurisdiction differs markedly from the traditional bases of jurisdiction under international law, which typically require some type of territorial, nationality or other connection between the State exercising the jurisdiction and the conduct at issue. Due to the definitional and other ambiguities surrounding the universality principle, which has in its past application strained and today continues to strain relations among States at the bilateral, regional and international levels, this paper successfully made the case for the inclusion of "Universal Criminal Jurisdiction" as a topic in the long-term program of work of the International Law Commission during its Seventieth Session (2018). It was submitted that taking up a study of this timely topic, which has been debated by the Sixth Committee of the UN General Assembly since 2010, could enhance clarity for States and thereby contribute to the rule of law in international affairs.

International Criminal Court

The principle of domestic jurisdiction in international law makes national governments responsible for protecting their citizens, investigating alleged abuses of human rights in their countries and bringing the perpetrators to justice. They governments may also extradite those accused of abuse of human rights to any other states prepared to give them a fair trial. Problem arises however, when governments are unable or unwilling to perform this duty or are themselves perpetrators of these crimes. Thus, millions of people have fallen victims of genocide, crimes against humanity and serious violations of humanitarian laws. But only very few of these perpetrators have been brought to justice in national courts as many governments claim sanctuary under the principle of domestic jurisdiction. The need therefore arises for the international community to act in order to protect helpless or defenseless citizens from being victims of crimes against humanity and human rights abuses, by bringing the perpetrators of these crimes to justice. The thrust of this article therefore, is that the creation of the International Criminal Court (ICC) fills this void by fulfilling a central and pivotal goal in international jurisprudence. This article, therefore, provides insights and lessons into the history and prospects of the International Criminal Court. These are insights and lessons that are too important and too costly to ignore in the 21st century understanding of international criminal justice system.

Universal civil jurisdiction in international law

Universal jurisdiction in international law allows states to exercise jurisdiction over particularly egregious conduct regardless of connection to the crime or its perpetrators. Universal civil jurisdiction (UCJ) is similar except that it applies civil, rather than criminal, jurisdiction, but to similar conduct. This article assesses the recognition of universal civil jurisdiction and finds that it is dubious at best. There is considerable evidence against the recognition of universal civil jurisdiction in international law: several states have explicitly and vehemently voiced their opposition to instances of exercise of UCJ. There is very limited evidence in favour of the recognition of UCJ in international law: rigorous analysis of over one hundred international and municipal decisions and instruments commonly cited in favour of UCJ reveals that few of these instruments actually provide such support. On balance, therefore, UCJ is not recognised in international law, or, at best, finds very limited recognition in international law.

Extra-Territoriality and the Conflict of Laws: Section 23(1) of the Labour Act

The application of Nigerian laws to situations with foreign (international) elements has generated debates in some quarters. Notably, the controversy has recently surfaced in Labour related matters particularly with respect to the application and scope of Section 23(1) of the Labour Act. This paper explores the legal principles that sit behind extraterritoriality of statutes, and how such measures have come to be justified. In particular, this paper explores the impact of this principle vis-a-vis the recruitment of Nigerian citizens when conducted by persons outside Nigeria as contemplated under the Labour Act. This paper proceeds to also consider the principle of extraterritorial jurisdiction in international law.

An Urgent Suggestion to Pour Old Wine into New Bottles: Comment on “A New Jurisprudential Framework for Jurisdiction”

Dan Svantesson is quickly establishing himself as a leading voice in the field or jurisdiction. Coming to this field from Internet and data protection law, he is surely well placed to criticize the current legal framework of international jurisdiction in light of technological evolution, which has made territoriality lose its salience as the cornerstone of jurisdiction. I myself have recently been characterized as one of the border guards of territoriality, on the basis of my earlier monograph on Jurisdiction in International Law. Accordingly, the informed reader might believe that I will severely criticize as iconoclastic such a proposal as Svantesson’s namely, doing away with territoriality as the very linchpin of jurisdiction. As it happens, however, I largely concur with Svantesson’s ideas, at least to the extent they apply to cross-border transactions via the Internet. In this contribution, I argue that the reality of a de-territorialized Internet necessitates jurisdictional rethinking, but that this rethinking in fact heavily relies on previous scholarship, predating the Internet era. The advent of the current era, however, has lent particular urgency to those earlier proposals.

Piracy, the Protection of Vital State Interests and the False Foundations of Universal Jurisdiction in International Law

It is widely asserted by courts and in legal scholarship that for hundreds of years universal jurisdiction has applied to the crime of piracy. However, the alleged historical legal foundations of universality need challenge. The central argument of this analysis is that jurisdiction over “piracy” is better understood under the protective principle, which arose out of the necessity of maritime Powers roughly between the seventeenth and eighteenth centuries to protect certain of their vital interests, not least their overseas trade routes and colonial trade and settlements. It follows that there is a need to re-conceptualise jurisdiction over piracy as the protection of vital State interests shared by the international community, a concept misinterpreted as universal jurisdiction.

Realspace Sovereigns in Cyberspace: Problems with the Anticybersquatting Consumer Protection Act

This Article seeks to fill a critical gap in the current literature relating to the international ordering of cyberspace: the link between jurisdictional assertions by realspace sovereigns and their effects on the global effort to administer the Internet. We analyze the United States' response to disputes over domain names, the Anticybersquatting Consumer Protection Act (ACPA), which permits a trademark owner to seek cancellation or transfer of the domain name by proceeding in rem against the domain name itself, thereby expanding the scope of the ACPA to encompass disputes with little direct connection to the United States. Congress appears to have developed 15 U.S.C. § 1125(d)(2) based on a misunderstanding of the constitutional requirements for adjudicative jurisdiction in the U.S. courts; and early court decisions interpreting the provision have perpetuated the misunderstanding. This Article argues that there exist no cases of foreign cybersquatting (aside from certain cases involving anonymous registrants) as to which the in rem provision will be both applicable and constitutional. The ACPA is notable for its aggressive approach to jurisdiction, and its expansive view of jurisdiction reveals the extent to which realspace sovereigns have a critical, and yet overlooked, role in the continued viability of a global unsegmented domain name system. By mapping the logical control over the domain name system-the distributed hierarchy that is the basis of the system's design--onto realspace territory, the potential for sovereign regulation of the system becomes apparent, either under the recognized principles of prescriptive jurisdiction in international law or as a de facto result of the geographic facts of the domain name system. We contend that the ACPA exemplifies uncoordinated actions that are likely to result in segmentation of the domain name system and thus a decline in social welfare. t Assistant Professors University of Pennsylvania Law School. We thank Stuart Benjamin, Paul Berman, Stephen Burbank, Dan Burk, Michael Froomkin, Edward Hartnett, Geoffrey Hazard, Mark Lemley, Curtis Reitz and participants at the 29th Research Conference on Communication, Information and Internet Policy. Remaining mistakes are our own. BERKELEY TECHNOLOGY LAW JOURNAL

Rethinking Jurisdiction in International Law

Jurisdiction has traditionally been considered in international law as purely a question of the rights and powers of states. Conceived in this way, the rules on jurisdiction serve the important function of delimiting (while accepting some overlap of) state regulatory authority – the question of when a person or event may be subject to national regulation – a function which is shared with the cognate discipline of private international law. This article suggests that the idea and the rules of jurisdiction in international law require reconceptualisation in light of three developments. The first is the growing recognition that in a range of circumstances the exercise of national jurisdiction may, under international law, be a question of duty or obligation rather than right. The second development is the increased acceptance that such jurisdictional duties may in some circumstances be owed not only to other states but also to private parties, particularly through the emergence and strengthening of the doctrines of denial of justice and access to justice. The third development is the widely recognised phenomenon known as party autonomy, under which private parties in civil disputes have the power to confer jurisdiction on national courts and to determine themselves which law governs their relationships. In combination, these developments suggest the necessity of rethinking the concept of jurisdiction in international law, to reflect the more complex realities of an international legal order under which states possess both jurisdictional rights and obligations and are no longer the exclusive actors.

Issues In The Development, And Enforcement, Of International Humanitarian Law: A Primer

<span>Forster and Forster (2010) reviewed the development of international humanitarian law for the protection of refugees during civil war in Sub-Saharan Africa (SSA). In this paper we consider the development of international humanitarian law for the prevention of genocide and the protection of women and children with reference to SSA. We outline the various courts which have jurisdiction in international law, and consider cases where the relevant laws are being ignored, especially in the case of rape and other sexual abuse of women, and the use of child soldiers. We also discuss the current alleged genocide occurring in the Darfur region of Sudan, and the issuance of warrants for arrest for war crimes, crimes against humanity and the crime of genocide in Darfur. The paper then considers some explanations for the flaunting of the laws including, rent-seeking behavior relative to natural resource assets, and appeals to state sovereignty. The development of the Responsibility to Protect principle is discussed as an alternative to conventional views of state sovereignty.</span>

From Beirut to Brussels: Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres

This paper re-examines the massacres which took place in the Palestinian refugee camps of Sabra and Chatila twenty-five years ago, by analysing the findings of the five separate commissions of inquiry established to look into those events: Namely, The Kahan Commission of Inquiry, the Jermanos Commission of Inquiry, the MacBride Commission of Inquiry, the Oslo Inquiry and the International People's Tribunal at Tokyo. The author points out that none of these commissions were judicial bodies and that no one has ever been prosecuted for the crimes committed in those camps in September 1982 in which approximately 800 - 3,500 unarmed men, women and children were killed. He argues that despite the misgiving scholars have on the nature and the extent of the principle of universal jurisdiction in international law, it is an appropriate basis of jurisdiction for the Palestinian people who are precluded from prescribing or enforcing jurisdiction due to their lack of statehood. This is because the Palestinians cannot at present use the courts in Israel or in the Lebanon to prosecute those persons responsible for the Sabra and Chatila massacres. Consequently, jurisdiction for genocide, crimes against humanity and war crimes in the Lebanon cannot be invoked on the basis of the territorial, national, protective or passive personality principles of jurisdiction.

Realspace Sovereigns in Cyberspace: Problems with the Anticybersquatting Consumer Protection Act (ACPA)

This article seeks to fill a critical gap in the current literature relating to the international ordering of cyberspace: the link between jurisdictional assertions by realspace sovereigns and their effects on the global effort to administer the Internet. We analyze the United States' response to disputes over domain names, the Anticybersquatting Consumer Protection Act (ACPA), which permits a trademark owner to seek cancellation or transfer of the domain name by proceeding in rem against the domain name itself, thereby expanding the scope of the ACPA to encompass disputes with little direct connection to the United States. Congress appears to have developed 15 U.S.C. s. 1125(d)(2) based on a misunderstanding of the constitutional requirements for adjudicative jurisdiction in the U.S. courts; and early court decisions interpreting the provision have perpetuated the misunderstanding. We argue that there exist no cases of foreign cybersquatting (aside from certain cases involving anonymous registrants) as to which the in rem provision will be both applicable and constitutional. In short, the ACPA is notable mainly for its aggressive approach to jurisdiction. This expansive view of jurisdiction reveals the extent to which realspace sovereigns have a critical, and yet overlooked, role in the continued viability of a global unsegmented domain name system. By mapping the logical control over the domain name system - the distributed hierarchy that is the basis of the system's design - onto realspace territory, the potential for sovereign regulation of the system becomes apparent, either under the recognized principles of prescriptive jurisdiction in international law or as a de facto result of the geographic facts of the domain name system. We contend that the ACPA exemplifies uncoordinated actions that are likely to result in segmentation of the domain name system and thus a decline in social welfare.

Jurisdiction in International Law, The Library of Essays in International Law: Edited by W Michael Reisman (Ashgate/Dartmouth, Aldershot, 1999, 637 pp)

Jurisdiction in International Law, The Library of Essays in International Law: Edited by W Michael Reisman (Ashgate/Dartmouth, Aldershot, 1999, 637 pp)

Some Legal Problems of Support Role in International Law: Tanzania and Uganda

THE incident leading to the overthrow of President Amin in Uganda by means of external support has given rise to considerable political and legal controversies and indeed has opened a new vista in certain provinces of international law. The question of the legitimacy of the external support and its ramifications in the province of domestic jurisdiction in international law have received a new dimension and hence a discussion of this incident will certainly focus attention on a contemporary current political and legal problem.

Studies in International Law

1. The Doctrine of Jurisdiction in International Law 2. Reflections on a Commercial Law of Nations 3. The Law Governing State Contracts 4. The Proper Law of Contracts Concluded by International Persons 5. About the Proper Law of Contracts between States 6. State Contracts and International Arbitration 7. State Contracts and State Responsibility 8. The Enforcement of Treaties by English Courts 9. The Assignability of Treaty Rights 10. International Delinquencies before Municipal Courts 11. Judiciary and Executive in Foreign Affairs 12. The Sacrosanctity of the Foreign Act of State 13. The Legal Consequences of Sabbatino 14. Prerogative Rights of Foreign States and the Conflict of Laws 15. The Effect of Changes of Sovereignty upon Nationality 16. The Effect of State Succession upon Corporations 17. International Corporations and National Law 18. The 'Interpretation' of the Constitutions of International Financial Organizations 19. The Interpretation of Uniform Statutes 20. The Present Legal Status of Germany 21. Germany's Present Legal Status Revisited

State Jurisdiction over Ice Island T-3 : The Escamilla Case

The matter of State jurisdiction over ice islands in the Arctic Ocean is no longer only an academic question raised by professors of international law. A recent incident involving the killing of a member of an American research team on Ice Island T-3 raises that question in a very realistic way. The purpose of this short paper is to review the relevant facts and to offer a few comments on the issue of jurisdiction in the light of the legal nature of the Arctic Ocean and of Ice Island T-3. On 16 July 1970, the shooting of the leader of a 20-man joint government-industry research team, one Bennie Lightsy of Louisville, Kentucky, took place in a hut on Ice Island T-3 (the third ice island sighted as a radar target, hence its name T-3), floating in the Arctic Ocean at 84° 47' North latitude and 106° 28' West longitude, within the so-called Canadian sector. Lightsy had gone to the hut to attempt to settle an argument over a jug of wine when he was shot with a rifle by one Mario Escamilla, a Mexican-born American citizen from California. Following a radio report about the incident, an American investigation team, composed of Naval and Coast Guard Intelligence officers and an Assistant U.S. Attorney, flew to Thule, an American Air Force Base in Greenland, and then to the ice island in question. Upon completion of the investigation, Escamilla was brought to the United States, after a change of plane at Thule, and landed at Dulles airport in Virginia. He was initially charged with murder in the first degree before a magistrate in the District Court for the Eastern District of Virginia, within which Dulles airport is located, and was subsequently indicted by a grand jury for the lesser offence of second degree murder. The issue raised is whether the United States or Canada, or both, had jurisdiction over the alleged crime committed on Ice Island T-3. The complaint stated that the ice island was floating on the high seas within the special maritime and territorial jurisdiction of the United States of America and out of the jurisdiction of a particular State. The only other State which could have claimed jurisdiction, since the incident took place well within its arctic sector, was Canada. Having examined the possible bases for state jurisdiction in international law, the conclusion is that the United States has properly exercised its personal jurisdiction over the T-3 incident. It is submitted that the legal status of the Arctic Ocean is essentially the same as for any other ocean and that Ice Island T-3 may, for the present purposes at least, be assimilated to a ship. Consequently, the incident may be deemed to have taken place on an American ship on the high seas. It might be added, however, that a further question may arise under American domestic law, as distinguished from international law, whether the term "vessel" in the United States Code is capable of a sufficiently liberal construction as to include an ice island. If it is not, the United States should be able to assume its personal jurisdiction on the basis of the nationality of the accused person and the national character of the research station.

International Law—Jurisdiction of International Court of Justice—Protection of Shareholders in Foreign Company

International Law—Jurisdiction of International Court of Justice—Protection of Shareholders in Foreign Company