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The international law of jurisdiction: A TWAIL perspective

Published online by Cambridge University Press:  17 November 2021

B. S. Chimni
B. S. Chimni*
Affiliation:
151 Uttarakhand, Jawaharlal Nehru University, New Delhi110067, India Email: bschimni@hotmail.com
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Abstract

The 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.

Keywords

capitalismextraterritorial jurisdictionliberal internationalismstateTWAIL
Type
ORIGINAL ARTICLE
Information
Leiden Journal of International Law , Volume 35 , Issue 1 , March 2022 , pp. 29 - 54
Copyright
© The Author(s), 2021. Published by Cambridge University Press

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Footnotes

•

Distinguished Professor of International Law, O.P. Jindal Global University, Haryana, India. I wish to thank the two anonymous reviewers of the article for their helpful comments. I also wish to express my gratitude to participants at the Max Planck Institute of Comparative and International Law, Heidelberg and the Graduate School of International Studies, Geneva where I presented earlier drafts of the article. I wish to especially thank Michal Swarabowicz who was discussant at the Geneva Seminar, as also Dorothea Endres, Yilin Wang, Joshua Niyo, Daniel R. Quiroga-Villamarin, Aliki Semertzi, and Abhimanyu George Jain who gave brief written comments on the article. Last but not least I wish to thank Cedric Ryngaert, Maïa Pal, and Umut Özsu for giving their views on different versions of the article. The usual caveat applies.

References

1 Mills calls it the most ‘underdeveloped’. He notes that the subject ‘has not received extensive scholarly attention’. See A. Mills, ‘Rethinking Jurisdiction in International Law’, (2014) 84 BYIL 187, at 188.

2 MILS may be defined as ‘an ensemble of methods, practices, and understandings in relation to the identification, interpretation, and enforcement of international law’ which among other things does not recognize their links with deep structures of capitalism, imperialism, and patriarchy. See B. S. Chimni, ‘An Outline of a Marxist Course on Public International Law’, (2004) 17 LJIL 1, at 1–2.

3 Mills, supra note 1, at 188. The ritualized account can be found in most textbooks of international law. There are also few books on the subject of jurisdiction in international law that offer from a mainstream perspective ‘an overarching study’ of its theory and practice. See C. Ryngaert, Jurisdiction in International Law (2015), 1.

4 A. Kaushal, ‘The Politics of Jurisdiction’, (2015) 78 MLR 759, at 791.

5 See the pioneering work of M. Pal, Jurisdictional Accumulation - An Early Modern History of Law, Empires, and Capital (2020). See also the following illuminating writings: D. S. Margolies et al. (eds.), The Extraterritoriality of Law: History, Theory, Politics (2019); U. Özsu, ‘The Ottoman Empire, the Origins of Extraterritoriality, and International Legal Theory’, in A. Orford and F. Hoffmann (eds.), The Oxford Handbook of the Theory of International Law (2016), 125; P. S. Berman, ‘The Globalization of Jurisdiction’, (2002) 151 University of Pennsylvania Law Review 311; R. T. Ford, ‘Law’s Territory: A History of Jurisdiction’, (1999) 97 Michigan Law Review 843; A. Mills, ‘Private Interests and Private Law Regulation in Public International Law Regulation’, in S. Allen et al. (eds.), Oxford Handbook on Jurisdiction in International Law (2019), 330.

6 Such an account has recently been advanced by Maïa Pal for the early modern period, drawing links between the development of capitalism and the doctrine and practices of international law of jurisdiction. The present article is an effort to narrate and problematize an aspect of the linkages between capitalism and international law of jurisdiction over time. See Pal, supra note 5. On TWAIL see A. Anghie and B. S. Chimni, ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflict’, in S. R. Ratner and A. M. Slaughter (eds.), The Methods of International Law (2004), 185; A. Anghie and B. S. Chimni, ‘Third World Approaches to International Law: A Manifesto’, in A. Anghie et al. (eds.), The Third World and International Order: Law, Politics and Globalization (2003), 47; J. T. Gathii, ‘International Law and Eurocentricity’, (1998) 9 EJIL 184; O. C. Okafor, ‘Critical Third World Approaches to International Law (TWAIL): Theory, Methodology, or Both?’, (2008) 10 International Community Law Review 371.

TWAIL scholarship reflects a great degree of internal diversity, with some scholars relying on a range of social science theories that include postcolonial theory, feminism, Marxism, and postmodernism. The present article draws on Marxism and postcolonial theory to advance an account of the international law of jurisdiction. For an elaboration of that theoretical standpoint see B. S. Chimni, International Law and World Order: A Critique of Contemporary Approaches (2017).

7 For such an effort see Pal, supra note 5.

8 For a critique of this position see Pal, ibid., at 103.

9 L. Oppenheim, International Law (1992), 456; I. Brownlie, Principles of Public International Law (2008); F. A. Mann, ‘The Doctrine of International Jurisdiction Revisited after Twenty Years’, (1984) 186 RCADI 9, at 20; A. V. Lowe, ‘The Problems of Extraterritorial Jurisdiction: Economic Sovereignty and the Search for a Solution’, (1985) 34 ICLQ 724, at 724.

10 Mills, supra note 1, at 195ff.

11 G. R. Watson, ‘The Passive Personality Principle’, (1993) 28 Texas International Law Journal 28.

12 M. Garrod, ‘The Protective Principle of Jurisdiction Over War Crimes and the Hollow Concept of Universality’, (2012) 12 International Criminal Law Review 763, at 766.

13 V. Lowe, International Law (2007), 171

14 K. C. Randall, ‘Universal Jurisdiction under International Law’, (1988) 66 Texas Law Review 785, at 785; M. C. Bassiouni, ‘Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice’, (2001) 42 Virginia Journal of International Law 8; R. O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’, (2004) 2 Journal of International Criminal Justice 735.

15 A. J. Simmons, ‘On the Territorial Rights of States’, (2001) 11 Philosophical Issues 300, at 306.

16 Ford, supra note 5, at 853–4.

17 Ibid., at 854 (emphasis added).

18 Ibid., (emphasis added).

19 Ibid., at 916.

20 A. Addis, ‘Community and Jurisdictional Authority’, in G. Handl et al. (eds.) Beyond Territoriality: Transnational Legal Authority in an Age of Globalization (2012), 13, at 13–14.

21 Ford, supra note 5, at 922.

22 As Haskell remarks, ‘when adopting a technical legal approach to extraterritoriality, one often presents oneself as apolitical or operating in accordance with the law, with the focus being placed on strict interpretation of traditional sources in order to derive the most correct possible legal outcome’. The technical approach also ‘minimise(s) ideological and theoretical considerations’. See J. Haskell, ‘Ways of Doing Extraterritoriality in Scholarship’, in Margolies et al., supra note 5, 14, at 18.

23 Addis, supra note 20, at 23.

24 On TCC see Chimni, supra note 6, at 507–9.

25 T. M. Franck, ‘The Emerging Right to Democratic Governance’, (1992) 86 AJIL 46.

26 R. Michaels and N. Jansen, ‘Private Law Beyond the State? Europeanization, Globalization, Privatization’, (2006) 54 American Journal of Comparative Law 843; A. G. Scherer et al., ‘Global Rules and Private Actors: Toward a New Role of the Transnational Corporation in Global Governance’, (2006) 16(4) Business Ethics Quarterly 505; T. Bartley, ‘Transnational Governance as the Layering of Rules: Intersections of Public and Private Standards’, (2011) 12(2) Theoretical Inquiries in Law 517; L. C. Backer, ‘Private Actors and Public Governance Beyond the State: The Multinational Corporation, the Financial Stability Board and the Global Governance Order’, (2011) 18 Indiana Journal of Global Legal Studies 751, at 760.

27 N. Brenner, ‘Urban Governance and the Production of New State Spaces in Western Europe, 1960–2000’, (2004) 11 Review of International Political Economy 447, at 447. Or, as Stuart Elden observes, ‘[a]lthough it is a central term within political theory, geography, and international relations, the concept of territory has been under examined’. S. Elden, The Birth of Territory (2013), 3 (emphasis in original).

28 B. Jessop et al., ‘Theorizing Sociospatial Relations’, (2008) 26 Environment and Planning D: Society and Space 389, at 391.

29 Ford, supra note 5, at 856. In the words of Elden, ‘territory is not simply an object: the outcome of actions conducted toward it or some previously supposedly neutral area. Territory is itself a process, made and remade, shaped and shaping, active and reactive’. See Elden, supra note 27, at 17. In the same vein Brighenti writes that ‘territory is better conceived as an act or practice rather than an object or physical space’. See A. M. Brighenti, ‘On Territorology: Towards a General Science of Territory’, (2010) 27 Theory Culture Society 52, at 53.

30 C. Raffestin, ‘Space, Territory, and Territoriality’, (2012) 30 Environment and Planning D: Society and Space 121, at 121.

31 Brighenti, supra note 29, at 53.

32 Ibid., at 54.

33 Ryngaert, supra note 3, at 49. He writes that ‘In the ancient world, composed of communities rather than territories, allegiances based on religion, race or nationality prevailed over those based on territoriality’. Ibid., at 51. ‘Even in the Roman time, a high-water mark of legal culture, “personal sovereignty” often seemed to prevail over territorial sovereignty’. Ibid., at 51. For further discussion see ibid., at 50–65.

34 S. Elden, ‘How Should We Do the History of Territory?’, (2013) 1 Territory, Politics, Governance 5, at 7. See also Elden, supra note 27.

35 L. Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400-1900 (2010), 287.

36 Ibid., at 288.

37 D. E. Khan, ‘Territory and Boundaries’, in B. Fassbender and A. Peters (eds.), The Oxford Handbook of the History of International Law (2012), 225, at 234.

38 N. Brenner and S. Elden, ‘Henri Lefebvre on State, Space, Territory’, (2009) 3 International Political Sociology 353, at 365.

39 Ibid., at 367 (emphasis added).

40 F. R. Teson, ‘The Mystery of Territory’, (2015) 32(1) Social Philosophy and Policy 25, at 25.

41 A. Orford, ‘Constituting Order’, in J. Crawford and M. Koskenniemi (eds.), The Cambridge Companion to International Law (2012), 271, at 279.

42 M. Moore, ‘A Precis of a Political Theory of Territory’, (2016) 6 Philosophy and Public Issues (New Series) 3, at 4.

43 Ibid. But as Szigeti has observed: ‘In the end, territoriality has very little to do with geography: It does not correspond to any natural geographical phenomena and is better thought of as a type of legal category that is independent of physical space’. See P. D. Szigeti, ‘The Illusion of Territorial Jurisdiction’, (2017) 52 Texas International Law Journal 369, at 372.

44 In sum ‘territory is a multi-faceted concept and practice, one which encompasses economic, strategic, legal and technical aspects …’. See S. Elden, ‘Territory without Borders’, Harvard International Review, 5 December 2019, available at hir.harvard.edu/territory-without-borders/ (accessed 22 December 2020).

45 S. Sassen, ‘When Territory Deborders Territoriality’, (2013) 1 Territory, Politics, Governance 21, at 39.

46 E. Augusti, ‘From Capitulations to Unequal Treaties: The Matter of an Extraterritorial Jurisdiction in the Ottoman Empire’, (2011) 4 Journal of Civil Law Studies 285, at 290.

47 K. Raustiala, Does the Constitution Follow the Flag? (2009), 138–40.

48 In the late seventeenth and eighteenth centuries the East India Company became a ‘virtual state’ ‘waging war, administering justice, minting coin, and collecting revenue over Indian territory’. N. Dirks, Autobiography of an Archive: A Scholar’s Passage to India (2015), 176. It has therefore been called a company-state, underscoring pluralistic notions of sovereignty.

49 As Backer puts it:

Transnational nonstate governance theories suggest a fundamental break with the three-legged stool of legitimate governance-state, law, and territory. Nonstate entities now govern through regulatory techniques that might mimic and sometimes supplement or supplant, but are not effectuated through law, nor are grounded in jurisdictional limits measured by “metes and bounds”.

See Backer, supra note 26, at 760.

50 See Section 4, infra.

51 J. Agnew, ‘The Territorial Trap: The Geographical Assumptions of International Relations Theory’, (1994) 1 Review of International Political Economy 53.

52 H. L. Buxbaum, ‘Territory, Territoriality, and the Resolution of Jurisdictional Conflict’, (2009) 57 American Journal of Comparative Law 631, at 643.

53 Ford, supra note 5, at 856.

54 Buxbaum, supra note 52, at 635. Emphasis added. See also A. J. Colangelo, ‘What Is Extraterritorial Jurisdiction’, (2014) 99 Cornell Law Review 1303, at 1304.

55 S. Subrahmanyam, ‘Connected Histories: Notes towards a Reconfiguration of Early Modern Eurasia’, (1997) 31 Modern Asian Studies 735, at 737.

56 G. K. Bhambra, ‘Comparative Historical Sociology and the State: Problems of Method’, (2016) 10 Current Sociology 335, at 346.

57 J. Bernstorff, ‘Georg Jellinek and the Origins of Liberal Constitutionalism in International Law’, (2012) 4 Goettingen Journal of International Law, 659, at 659. However, as d’Aspremont points out, the ‘… German parentage of the Montevideo definition is … unsettling because it does not seem that the work of Jellinek actually influenced the jurists who did the groundwork for 1933 Montevideo Convention’. See J. d’Aspremont, International Law as a Belief System (2018), 84.

58 T. Ertman, ‘State Formation and State Building in Europe’, in T. Janoski et al. (eds.), The Handbook of Political Sociology: States, Civil Societies, and Globalization (2005), 367, at 375; T. Ertman, Birth of the Leviathan: Building States and Regimes in Medieval and Early Modern Europe (1997), 317. See also W. G. Grewe, The Epochs of International Law (2000), 171 ff.

59 B. Teschke, ‘Debating the “Myth of 1648”: State Formation, the Interstate System and the Emergence of Capitalism in Europe: A Rejoinder’, (2006) 43 International Politics 531, at 550 .

60 Ibid., at 550.

61 E. Kadens, ‘The Medieval Law Merchant: The Tyranny of a Construct’, (2015) 7 Journal of Legal Analysis 251 . According to Kadens, ‘the known evidence indicates that the specific phrase “lex mercatoria,” the “law merchant,” did not appear until the late 13th century, and its use was unique to England’. Ibid., at 253.

62 Ibid., at 270.

63 A. S. Sweet, ‘The New Lex Mercatoria and Transnational Governance’, (2006) 13 Journal of European Public Policy 627, at 630.

64 Ibid.

65 P. Anderson, ‘The Absolutist States of Western Europe’, in D. Held et al. (eds.), States & Societies (1983), 137, at 145.

66 The need for lex mercatoria only re-emerged in the twentieth century with the growth of transnational commercial society. Ibid., at 632.

67 See Ford, supra note 5, at 910.

68 But see Ford, ibid., at 866–7 (emphasis added); J. Agnew, ‘Capitalism, Territory and “Marxist Geopolitics”’, (2011) 16 Geopolitics 230, at 231.

69 See J. Banaji, A Brief History of Commercial Capitalism (2020).

70 Teschke supra note 59, at 549.

71 A. D. Morton, ‘The Age of Absolutism: Capitalism, the Modern States-System and International Relations’, (2005) 31(3) Review of International Studies 495, at 50 1.

72 E. M. Wood, The Origin of Capitalism: A Longer View (2002), 171.

73 Ibid., at 173.

74 Teschke, supra note 59, at 546.

75 Ibid.

76 See, for instance, M. Dobb, Studies in the Development of Capitalism (1946), 7; R. Brenner, ‘Dobb on the Transition From Feudalism to Capitalism’, (1978) 2 Cambridge Journal of Economics, 121; G. Lefebvre et al., The Transition From Feudalism to Capitalism (1985); C. J. Katz, ‘Karl Marx on the Transition from Feudalism to Capitalism’, (1993) 22 Theory and Society 363.

77 The British economist Dobb captures the essence of Marx’s definition of capitalism: ‘Capitalism was not simply a system of production for the market—a system of commodity production as Marx termed it—but a system under which labour power had “itself become a commodity” and was bought and sold on the market like any other object of exchange. Its historical prerequisite was the concentration of ownership of the means of production in the hands of a class, consisting of only a minor section of society, and the consequent emergence of a propertyless class for whom the sale of their labour power was their only source of livelihood.’ Dobb, ibid., at 7.

78 There was a long period of transition which led to many changes including in the notion and practice of extraterritoriality. Pal thus speaks of ‘the importance of agrarian capitalist social property relations and class dynamics for the shaping of different doctrines of extraterritoriality in the early modern period …’. See M. Pal, ‘Early Modern Extraterritoriality, Diplomacy, and the Transition to Capitalism’, in Margolies et al., supra note 5, 69, at 71.

79 While pre-modern political entities also exercised territorial jurisdiction their defining feature was, as we have seen, the exercise of personal jurisdiction. Khan observes that ‘[t]o establish territory as the pivotal sounding board for the exercise of sovereign powers was in fact the very idea behind the paradigm shift away from the (medieval) concept of governance (personal jurisdiction)’. See Khan, supra note 37, at 237. Wood also writes that:

The precapitalist unity of economic and political powers, such as that of feudal lordship, meant, among other things, that the economic powers of the feudal lord could never extend beyond the reach of his personal ties or alliances and extra-economic powers, his military force, political rule, or judicial authority. Nor, for that matter, could the economic powers of the absolutist state or any pre-capitalist empire exceed its extra-economic range.

See Wood, supra note 72, at 177.

80 Grewe, supra note 58, at 167.

81 Ibid., at 168.

82 Ibid. On other counts see M. Koskenniemi, ‘Review: Wilhem Grewe, the Epochs of International Law’, (2002) 51 ICLQ 746.

83 K. Marx, Capital (1977), vol. 1, 703.

84 C. Tilly, Coercion: Capital and Modern States A.D. 990-1990 (1990). He, of course, stresses the variations in state building in Europe as against a singular master narrative.

85 Benton, supra note 35, at 280.

86 See J. Kocka, Capitalism: A Short History (2016).

87 Thus, for instance Ryngaert writes that ‘exceptionally … national laws may be given extraterritorial application, provided that these laws could be justified by one of the recognized principles of extraterritorial jurisdiction under public international law: the active personality principle, the passive personality principle, the protective principle, or the universality principle’. See Ryngaert, supra note 3, at 101.

88 For the evolution of the practice of extraterritoriality in the early modern period see Pal, supra note 5. She has proposed ‘… rethinking early modern extraterritoriality in relation to a fundamental concurring event: the transition to capitalism’. Pal, supra note 78, at 70.

89 T. Kayaoglu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (2010), 2. It is worth stressing that while the section relies on the work of Kayaoglu there is considerable literature on capitulation regimes in semi-colonies. For instance, on the capitulation regimes in the Ottoman empire see J. B. Angell, ‘The Turkish Capitulations’, (1901) 6 American Historical Review 254; L. Ellsworth Thayer, ‘The Capitulations of the Ottoman Empire and the Question of their Abrogation as it Affects the United States’, (1923) 17 AJIL 207; U. Özsu, ‘Ottoman Empire’, in Fassbender and Peters, supra note 37, 229; M. van den Boogert, The Capitulations and the Ottoman Legal System: Qadis, Consuls and Beratlis in the 18 th Century (2020).

90 Kayaoglu, ibid., at 1.

91 Ibid., at 9.

92 Kayaoglu defines ‘legal imperialism’ of the era as follows:

Legal imperialism is the extension of a state’s legal authority into another state and limitation of legal authority of the target state over issues that may affect people, commercial interest, and security of the imperial state. Extraterritoriality was quintessential legal imperialism; it extended Western legal authority into non-Western territories and limited non-Western legal authority over Western foreigners and their commercial interest.

Ibid., at 6.

93 Ibid., at 12 (emphasis added).

94 Fidler writes:

While various motivations can be attached to the capitulatory regimes established in the nineteenth century, the primary intention was to establish some fundamental conditions for commercial interaction between the United States and European states on one side and non-Western countries and regions on the other. Exempting Americans and Europeans from the application of civil and criminal law in non-Western countries would facilitate trade and economic intercourse because legal uncertainty and risk were removed for American and European enterprises seeking to do business abroad.

See D. Fidler, ‘A Kinder, Gentler System or Capitulations? International Law, Structural Adjustment Policies, and the Standard of Liberal, Globalized Civilization’, (2000) 35 Texas International Law Journal 387, at 390–1.

95 Fidler, ibid., at 391. He further adds:

Capitalism in both Europe and the United States rested on well-established legal systems that supported free enterprise. Capitulations represented the partial exportation of these legal systems to support commerce in the emerging markets of the uncivilized world.

Ibid., at 393.

96 Kayaoglu, supra note 89, at 11–12.

97 Ibid., at 12.

98 Such an ‘… approach links the abolition of extraterritoriality to the institutionalization of state law in non-Western states, or simply, domestic legalization. Domestic legalization includes the codification of rules, the spread of court systems, and the establishment of a legal hierarchy; positive legal scholars deem all three elements to be necessary parts of a legal system that clarifies and enforces legal and property rights’. See Kayaoglu, supra note 89, at 51. The process involved was much more complex and layered. For a glimpse of that process see L. Benton and L. Ford, Rage for Order: The British Empire and the Origins of International Law 1800-1850 (2016); P. Cassel, Grounds of Judgement: Extraterritoriality and Imperial Power in Nineteenth Century China and Japan (2012).

99 Kayaoglu, ibid., at 12.

100 T. Kayaoglu, ‘The Extension of Westphalian Sovereignty: State Building and the Abolition of Extraterritoriality’, (2007) 51 International Studies Quarterly 649, at 651–2.

101 Kayaoglu, supra note 89, at 65.

102 Ibid., at 65.

103 See N. Walker, Intimations of Global Law (2015); B. S. Chimni, ‘International Institutions Today: An Imperial Global State in the Making’, (2004) 15 EJIL 1.

104 Raustiala, supra note 47, at vii (emphasis added).

105 Ibid., at 7.

106 C. M. Bishop, ‘The American Consular Court System in China’, (1992) 8 American Bar Association Journal 223; R. Young, ‘The End of American Consular Jurisdiction in Morocco’, (1957) 51 AJIL 402; T. Ruskola, ‘Colonialism Without Colonies: On the Extraterritorial Jurisprudence of the U.S. Court for China’, (2008) 71 Law and Contemporary Problems 217.

107 Raustiala, supra note 47, at 94.

108 Raustiala, ibid., at 94–5 (emphasis added). He concludes:

Postwar American hegemony … was manifested not only in military power and economic influence, but also in an expansive understanding of the reach of domestic law—an understanding that honored American anti-imperialism while it simultaneously extended American legal rules throughout the globe.

Ibid., at 96.

109 A. L. Parrish, ‘Reclaiming International law from Extraterritoriality’, (2009) 83 Minnesota Law Review 815, at 846.

110 Ibid., at 846–8.

111 The definition of the ‘effects doctrine’ in the Third Restatement of the Foreign Relations Law of the USA is ‘conduct outside [the state’s] territory that has or is intended to have substantial effect within its [i.e., US] territory’. Restatement (Third) of the Foreign Relations Law of the United States (1988), § 402(l)(c). An International Bar Association Report defines ‘universal civil jurisdiction’ as follows:

Universal civil jurisdiction refers to the ability of states to provide civil judicial remedies for violations of human rights and other fundamental norms of international law without requiring a link between the subject matter of the dispute or the parties on the one hand and the forum on the other.

‘Report of the Task Force on Extraterritorial Jurisdiction’, 2009, at 15, available at www.ibanet.org/MediaHandler?id=ECF39839-A217-4B3D-8106-DAB716B34F1E (accessed 6 September 2021).

112 Raustiala, supra note 47, at 95.

113 By ‘structural coercion’ is meant a situation in which developing nations are prevented from exercising choice because it carries too heavy costs. It is a function of the profound inequalities of power between states in diplomatic, economic, and military domains. See generally Johan Galtung, ‘Violence, Peace, and Peace Research’, (1969) 6 Journal of Peace Research 167; T. Pogge, World Poverty and Human Rights (2002), Chs. 4 and 8.

114 See WTO, Intellectual Property: Protection and Enforcement, available at www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm (accessed 6 September 2021).

115 ‘The TRIPS Agreement describes the minimum rights that a patent owner must enjoy, and defines the conditions under which exceptions to these rights are permitted.’ Ibid.

116 S. K. Sell, ‘TRIPs Was Never Enough: Vertical Forum Shifting, FTAS, ACTA, and TPP’, (2011) 18 Journal of Intellectual Property Law 447; H. G. Ruse-Khan, ‘The International Law Relation between TRIPs and Subsequent TRIPs-Plus Free Trade Agreements: Towards Safeguarding TRIPs Flexibilities’, (2011) 18 Journal of Intellectual Property Law 325.

117 See generally M. Sornarajah, The International Law on Foreign Investment (2018).

118 See Global Policy Forum, ‘Multilateral Agreement on Investment’, available at www.globalpolicy.org/globalization/globalization-of-the-economy-2-1/multilateral-agreement-on-investment-2-5.html (accessed 6 September 2021); S. Picciotto, ‘A Critical Assessment of the MAI’, in S. Picciotto and R. Mayne (eds.), Regulating International Business: Beyond Liberalization (1999), 82.

119 See WTO, ‘Investment Facilitation’, available at www.wto.org/english/thewto_e/minist_e/mc11_e/briefing_notes_e/bfinvestfac_e.htm (accessed 6 September 2021).

120 See generally M. Andenaes, A. Tonnesson and B. Camilla (eds.), Theory and Practice of Harmonization (2012).

121 Chimni, supra note 103; Ha-Joon Chang, Kicking Away the Ladder: Development Strategy in Historical Perspective (2003); K. Gallagher, Putting development first: the importance of policy space in the WTO and IFIs (2005); D. Rodrik, The Globalization Paradox: Democracy and the Future of the World Economy: Why Global markets, states, and democracy can’t coexist (2011); A. Andreoni, H. Chang and J. Estevez, ‘New Global Rules, Policy Space and quality of Growth in Africa’, in A. Noma, J. E.Stiglitz and R. Kanbur (eds.), The Quality of Growth in Africa (2019), 111.

122 ‘In recent years, the United States has withdrawn from international law and multilateral institutions. Concomitant with the withdrawal has been a dramatic expansion of the use of extraterritorial laws—both in the public and private law contexts. Other countries are now following suit’. See Parrish, supra note 109, at 874. Indeed, Parrish speaks of ‘the rise of global extraterritoriality as an alternative to international law making’. Ibid., at 819. N. Krisch, ‘The Decay of Consent: International Law in an Age of Global Public Goods’, (2014) 108 American Journal of International Law 1, at 8.

123 As Wilde observes, ‘the involvement of international organizations in varying degrees of territorial administration has a long history, stretching back to the start of the League of Nations’. See R.Wilde, ‘From Danzig to East Timor and Beyond: The Role of International Territorial Administration’, (2001) 95 AJIL 583, at 583. See also A. Orford, ‘Book Review: International Territorial Administration and the Management of Decolonization’, (2010) 59 ICLQ 227.

124 The recent history of ‘direct administration over people and territory’ has been described by Benvenisti:

Beginning with the intervention in Somalia in December 1992, the UN Security Council has acted under Chapter VII to authorize the non-consensual administration of territories of member States, in internal or post-conflict situations. The preferred policy remained to rely formally on domestic institutions, as was the case for example, in Cambodia (1991), Haiti (1994), and Bosnia (1995), but when such indigenous institutions were not available or judged untrustworthy, the Security Council assigned responsibility to the foreign forces in control of the direct control over the territory, as in the cases of Kosovo (UNMIK, 1999) and East Timor (UNTAET, 1999).

See E. Benvenisti, The Law of Global Governance (2014), 69.

125 UN Doc. S/RES/1272 (1999), para. 1.

126 Panel on United Nations Peace Operations, Report to the United Nations Secretary-General, UN Doc. A/55/305-S/2000/809 (2000), at ¶ 77 (Brahimi Report), cited in Orford, supra note 123, at 229. Or, as Orford puts it, the international administrators can ‘detain people, establish systems of judicial administration, redistribute property, set and collect taxes, nationalize industry, run schools, adjudicate disputes, allocate resource contracts, create central banks, provide services and so on. International officials undertake all these tasks while benefiting from an extremely broad regime of immunities and privileges developed to enable the conduct of international public service or diplomatic relations’. Ibid., at 243.

127 I. Scobbie, ‘New Wine in Old Bottles or Old Wine in New Bottles or only Old Wine in Old Bottles?: Reflections on the Assertion of Jurisdiction in Public International Law’, in P. Capps et al. (eds.), Asserting Jurisdiction: International and European Legal Perspectives (2003), 17, at 24 (emphasis added).

128 Ibid., at 25 (emphasis added).

129 Orford, supra note 123, at 249 (emphasis added).

130 R. Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (2008), 449.

131 Ford, supra note 5, at 906.

132 See Chimni, supra note 103; D. Rodrik, The Globalization Paradox: Democracy and the Future of World Economy (2011); D. Rodrik, Straight Talk on International Trade: Ideas for a Sane World Economy (2017); J. E. Stiglitz and A. Charlton, Fair Trade for All: How Trade Can Promote Development (2005); J. E. Stiglitz, Making Globalization Work: The Next Steps to Global Justice (2007).

133 In simple terms ‘unequal exchange arises when spatial production of value is disjointed from its geographical distribution, in the same way as social production of value diverges from its distribution between social classes. Production and capture of value by locations are two different things, and trade is one of the ways of their uncoupling’. A. Ricci, ‘Unequal Exchange in the Age of Globalization’, (2019) Review of Radical Political Economics 1–21, at 2; A. Ricci, Value and Unequal Exchange in International Trade: The Geography of Global Capitalist Exploitation (2021), at 14; J. Smith, Imperialism in the Twenty-First Century: Globalization, Super-Exploitation, and Capitalism’s Final Crisis (2016); J. G. Sprankling, The International Law of Property (2014); S. K. Sell, Private Power, Public Law: The Globalization of Intellectual Property Rights (2003); the footnotes at Ford, supra note 5.

134 S. Coffey, ‘Establishing a Legal Framework for Property Rights to Natural Resources in Outer Space’, case Western Reserve Journal of International Law, available at scholarlycommons.law.case.edu/jil/vol41/iss1/6 (accessed 30 September 2021).

135 Ryngaert, supra note 3, at 231.

136 Ibid., at 230.

137 Ibid., at 231 (emphasis added). See also Berman, supra note 5, at 322.

138 Consequently, he also does not explore the notion of ‘global economic and value interests’. See Ryngaert, ibid., at 190.

139 As Parmar puts it, ‘the LIO [liberal international order] is a class-based, elitist hegemony—strongly imbued with explicit and implicit racial and colonial/imperial assumptions—in both US domestic and foreign relations’. I. Parmar, ‘The US-Led Liberal Order: Imperialism by Another Name?’, (2018) 94 International Affairs 151, at 152.

140 C. Ryngaert, ‘Unilateral Jurisdiction and Global Values’, 2015, at 32, available at unijuris.sites.uu.nl/wp-content/uploads/sites/9/2014/12/Inaugural-Lecture.-Unilateral-Jurisdiction-and-Global-Values.pdf (accessed 22 December 2020). He goes on to write:

Admittedly, in practice, unilateral jurisdiction in the global interest is, at least in the socio-economic field, often only exercised when the integrity of domestic regulation is undermined, and domestic actors’ rights and interests are affected by foreign activity (“levelling the playing field”). This tends to create an impression of self-centeredness, arbitrariness, exclusivity to the detriment of less powerful actors, domination, or outright legal imperialism. But one should not forget that most of the time, these so-called “hegemonic” actors may just be enforcing shared values or challenges of the international community, even if they have technically not yet risen to the level of public international law norms: there is undeniably a global interest in accountability for international crimes, transnational corruption, antitrust conspiracies, securities fraud, or in addressing climate change. These global interests are, moreover, often laid down in various binding or non-binding international instruments. It is somewhat disingenuous then to blame states for enforcing these instruments.

Ibid., at 33–4.

141 Ibid., at 74.

142 Ibid.

143 Ryngaert, supra note 3, at 194.

144 Ibid.

145 Ibid.

146 Ibid., at 195, 208–15. The Ryngaert proposal is also echoed by Judge Breyer of the U.S. Supreme Court who writes:

‘… when interpreting the statutes, the Court sought not simply to avoid conflict but also to harmonize analogous American and foreign law so that the systems, taken together, could work more effectively to achieve common aims … The Court’s changing approach tracks a similar change in its conception of comity—from one emphasizing the more formal objective of simple conflict avoidance to the more practical objective of maintaining cooperative working arrangements with corresponding enforcement authorities of different nations. It is also consistent with the efforts in the executive branch to harmonize regulatory rules with foreign authoritis.’

See S. Breyer, The Court and the World: American Law and the New Global Realities (2015), 133.

147 Ryngaert, supra note 3, at 195, 204.

148 Ibid., at 199–200, 204–8. See generally on the export of US legal model and the variables and complexities involved: Y. Dezalay and B. G. Garth, ‘Legitimating the New Legal Orthodoxy’, in Y. Dezalay and B. G. Garth (eds.), Global Prescriptions: The Production, Exportation, and Importation of a New Legal Orthodoxy (2002), 306.

149 Ryngaert, ibid., at 208–9.

150 In case of elements that have not been discussed earlier in the article the footnotes refer the reader to readings that might help illuminate them.

151 See Chimni, supra note 103.

152 B. S. Chimni, ‘The Limits of the All Affected Principle: Attending to Deep Structures’, (2018) 3 Third World Thematics: A TWQ Journal 807; J. von Bernstorff, ‘New Responses to the Legitimacy Crisis of International Institutions: The Role of “Civil Society” and the Rise of the Principle of Participation of “The Most Affected” in International Institutional Law’, (2021) XX EJIL 1–33.

153 The exercise of extraterritorial jurisdiction on the basis of these doctrines represents contested fields. Thus, for instance, one observer notes with respect to the exercise of universal civil jurisdiction that its deployment by US courts ‘is mistaken’. D. Wallach, ‘The Irrationality of Universal Civil Jurisdiction’, (2015) 46 Georgetown Journal of International Law 803, at 804 – 5 , 834–5. Others have also suggested that ‘though the principle of universal jurisdiction is well established in the criminal sphere, it is still regarded as novel in the civil context’. See D. F. Donovan and A. Roberts, ‘The Emerging Principle of Universal Civil Jurisdiction’, (2006) 100(1) AJIL 142, at 142. See also A. G. Jain, ‘Universal Civil Jurisdiction in International Law’, (2015) 55(2) Indian Journal of International Law 209.

154 P. S. Berman, ‘Global Legal Pluralism’, (2007) 80 Southern California Law Review 1155, at 1237.

155 Ibid., at 1190–1.

156 See Kiobel v. Royal Dutch Petroleum Co., 569 U. S. 108 (2013), at 108; Jesner et al. v. Arab Bank PLC, 138 S.Ct. 1386 (2018), at 1389.

157 L. C. Backer, ‘Governance Without Government: An Overview and Application of Interactions Between Law-State and Governance-Corporate Systems’, in G. Handl, J. Zekoll and P. Zumbansen (eds.), Beyond Territoriality: Transnational Legal Authority, in An Age of Globalization (2012), 87; J. G. Ruggie, Multinationals as Global Institution: Power, Authority and Relative Autonomy, (2018) 12 Regulation and Governance 317.

158 F. Pasquale, ‘Tech Platforms and the Knowledge Problem’, (2018) 2 American Affairs 3, at 8. See generally K. Klonick, ‘The New Governors: The People, Rules, and Processes Governing Online Speech’, (2017) 131 Harvard Law Review, 1598–1670.

159 Case decision 2021-001-FB-FBR: Suspension of Trump Facebook Account, available at oversightboard.com/decision/FB-691QAMHJ/ (accessed 6 September 2021). See generally S. Vaidhyanathan, ‘What If Regulating Facebook Fails?’, WIRED, 7 February 2021, available at www.wired.com/story/what-if-regulating-facebook-fails/?utm_source=pocket-newtab-intl-en; S. Vaidhyanathan, ‘Facebook is pretending it cares how its platform affects the world’, Guardian, 6 May 2021, available at www.theguardian.com/commentisfree/2021/may/06/facebook-donald-trump-ruling-oversight-board (accessed 6 September 2021); N. Alkiviadou, ‘Freedom of Expression and Its Slow Demise: The Case of Online Hate Speech (and Its Moderation/Regulation)’, Opinio Juris, 25 July 2021, available at opiniojuris.org/2021/07/25/freedom-of-expression-and-its-slow-demise-the-case-of-online-hate-speech-and-its-moderation-regulation/ (accessed 7 September 2021).

160 Chimni, supra note 6, at 202–11; C. Storr, ‘Denaturalising the Concept of Territory in International Law’, in J. Dehm and U. Natarajan (eds.), Locating Nature: Making and Unmaking International Law (2020). The term ‘Capitalocene’ was first used by Swedish academic Andreas Malm.

161 J. Dehm, ‘Carbon Colonialism or Climate Justice? Interrogating the International Climate Change Regime from a TWAIL Perspective’, (2016) Windsor Yearbook of Access to Justice 129–61.

162 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, Judgment of 9 July 2004, [2004] ICJ Rep. 136, at 180, para. 111.

163 Inter-American Commission on Human Rights, Indigenous Peoples, Afro-Descendent Communities, and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation, and Development Activities, Organization of American States Inter-American Commission on Human Rights, OEA/Ser.L/V/II Doc. 47/15 (2015), available at www.oas.org/en/iachr/reports/pdfs/ExtractiveIndustries2016.pdf (accessed 6 September 2021).

164 United Nations Economic and Social Council Committee on Economic, Social and Cultural Rights, ‘General Comment 24 (2017) on State obligations Under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities’, UN Doc. E/C.12/GC/24 (2017).

165 S. Miller, ‘Revisiting Extraterritorial Jurisdiction: A Territorial Justification for Extraterritorial Jurisdiction under the European Convention’, (2009) 20 EJIL 1223; M. Milanović, ‘From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties’, (2008) 8 Human Rights Law Review 411.

166 ETO Consortium, Maastricht Principles on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights (2013), available at www.etoconsortium.org/nc/en/main-navigation/library/maastricht-principles/?tx_drblob_pi1%5BdownloadUid%5D=23 (accessed 6 September 2021). See also the recent decision of the Supreme Court of Canada in Nevsun Resources Ltd v. Araya, 2020 SCC 5, 28 February 2020, available at scc-csc.lexum.com/scc-csc/scc-csc/en/18169/1/document.do (accessed 6 September 2021).