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Jurisdiction in International Law, 2nd Edition by Ryngaert, Cedric (1st April 2015)

2 Public International Law Approaches to Jurisdiction

From: Jurisdiction in International Law (2nd Edition)

Cedric Ryngaert

Subject(s):
International courts and tribunals, jurisdiction — Permanent Court of International Justice (PCIJ) — International Court of Justice (ICJ) — Customary international law

(p. 29) Public International Law Approaches to Jurisdiction

Under public international law, two approaches could logically be taken to the question of jurisdiction. Either one allows States to exercise jurisdiction as they see fit, unless there is a prohibitive rule to the contrary, or one prohibits States from exercising jurisdiction as they see fit, unless there is a permissive rule to the contrary. The first approach was taken by the Permanent Court of International Justice (PCIJ) in the 1927 Lotus case (section 2.1). The second approach, which purportedly reflects customary international law, has been taken by most States and the majority of the doctrine. Under this approach, States are not authorized to exercise their jurisdiction, unless they can rely on such permissive principles as the territoriality, personality, protective, and universality principles (section 2.2). It is unclear which doctrine has the upper hand. Not surprisingly, for purposes of shifting the burden of proof to the other party, States who assert their jurisdiction tend to rely on Lotus, whereas States who oppose another State’s jurisdictional assertions tend to rely on the permissive principles approach.

In practice, a consensus opinion has crystallized. This opinion seems mainly informed by the restrictive approach, in that it requires States to justify their jurisdictional assertion in terms of a permissive international law rule. Indeed, leaving States almost unfettered jurisdictional discretion may run counter to the very regulating purpose of the international law of jurisdiction: delimiting States’ spheres of action and thus reducing conflicts between States.1 However, because a strict categorization of permissive principles may fail to do justice to legitimate State interests threatened by unfriendly foreign action (a categorization which requires that States wait for a norm of customary international law authorizing a new jurisdictional assertion to crystallize),2 this opinion has construed the permissive principles rather broadly: (p. 30) States are generally considered to be authorized to exercise jurisdiction if they can advance a legitimate interest based on personal or territorial connections of the matter to be regulated. The indeterminacy of “connections” and “interests” has made States’ room for action actually very broad, and has led to an internationally sanctioned system of possibly harmful concurring jurisdiction. In Chapters 5 and 6, a way out of the conundrum of concurring jurisdiction engendered by the broadly construed permissive principles approach will be sought.

2.1  The Lotus Case

In 1923, the PCIJ held, in passing, in the case of the Nationality Decrees in Tunis and Morocco, that “jurisdiction which in principle, belongs solely to the State, is limited by rules of international law.”3 Four years later, in the Lotus case, a case directly concerning the question of jurisdiction, the Court elaborated on this reference in an opinion which still constitutes the basic framework of reference for questions of jurisdiction under international law. Since Lotus, the PCIJ and the International Court of Justice (ICJ) have not directly addressed the doctrine of (extraterritorial) jurisdiction. This is not to say that this doctrine has not been developing, on the contrary. Yet the development has come about solely in national legal practice, without supervisory guidance by an international court or regulator.4

In 1926, the PCIJ was requested to settle a dispute between Turkey and France with regard to a collision on the high seas.5 On 2 August 1926, the French mail steamer Lotus had collided with the Turkish collier Boz-Kourt, as a result of which eight Turkish sailors had perished. When the French steamer arrived in Constantinople the next day, Turkish authorities started investigations into the case. Two days later, Lieutenant Demons, the officer of the watch of the Lotus, a French national, was placed under arrest. On 15 September 1926, A Turkish criminal court sentenced him to 80 days’ imprisonment and a fine of twenty-two pounds. During the proceedings, France lobbied heavily, and contended that, by bringing Demons to justice, Turkey acted in conflict with the principles of international law.6 On 12 October 1926, France and Turkey signed a special agreement (p. 31) in which they submitted the question of jurisdiction that had arisen in the Lotus case to the PCIJ. In 1927, in a controversial verdict, decided by the president’s casting vote, the PCIJ ruled that Turkey was indeed entitled to institute criminal proceedings against the French officer. Even though the case could barely be considered as representative for jurisdictional conflicts, Lotus soon became the main standard of reference for such conflicts in all legal areas. It will also be treated as such in this study (although with quite a few reservations). It is therefore useful to discuss the Court’s holdings in greater detail.

In Lotus, the PCIJ made the important distinction between enforcement and prescriptive jurisdiction. Whereas States would be precluded from enforcing their laws in another State’s territory absent a permissive rule to the contrary, international law would pose no limits on a State’s jurisdiction to prescribe its rules for persons and events outside its borders absent a prohibitive rule to the contrary. The Court held as to enforcement jurisdiction:

[T]‌he first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.7

A State cannot use coercive power to enforce its rules outside its territory. Stating the contrary would mean shattering the sacrosanct principle of sovereign equality of nations. A State cannot use military force to compel another State to abide by its laws. Likewise, a State cannot resort to legal implementation measures such as penalties, fines, seizures, investigations, or demands for information to give extraterritorial effect to its rules.8

In contrast, the Court held that international law would permit jurisdiction to prescribe rules extraterritorially:

It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general (p. 32) prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property, and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.9

Thus, under Lotus, States could set rules for persons, property and acts outside their territory in the absence of a prohibitive rule, provided that they enforced those rules territorially (in keeping with the ban on extraterritorial enforcement jurisdiction). Indeed, the Court held that “the territoriality of criminal law … is not an absolute principle of international law and by no means coincides with territorial sovereignty.”10 Territorial sovereignty would relate to enforcement jurisdiction, but not to prescriptive jurisdiction. States would be free to exercise their jurisdiction extraterritorially absent a prohibitive rule to the contrary. Such a rule might emerge through abstract declarations of opinio juris made before the claim to extraterritorial jurisdiction is made, and by protesting the claim once it is made.11

On the face of it, it may require some imagination to separate extraterritorial prescriptive or legislative jurisdiction from its logical complement enforcement jurisdiction. Surely a State that enacts rules governing conduct outside its territory (prescriptive jurisdiction) also wants to have them implemented there, under the threat of sanctions (enforcement jurisdiction)? This is no doubt true. However, a State can use indirect territorial means to induce the conduct it desires. As Jennings observed, “. . . the excessive devotion to legalism has often blinded us to the fact that the exercise of straight jurisdiction over a person present in the territory may—albeit indirectly—be in fact the most effective way of exercising the State’s power extraterritorially.”12 If a person outside the territory does not abide by the norm prescribed extraterritorially, he could be sued in the territory of the enacting State. If he does not pay the fine, his assets in the territory could be seized. Similarly, he could be precluded from entering the territory or registering with a government agency. Thus, territorial enforcement jurisdiction could compel persons to comply with norms prescribed extraterritorially. When a person has no assets in the territory of the prescribing State and does not entertain contacts with that State, extraterritorial jurisdiction will ordinarily prove ineffective.

In claiming jurisdictional freedom for States, Lotus reaffirmed the voluntary nature of international law. Reflecting on the nature of international law, the Court recalled that “[t]‌he rules of law binding upon States … emanate from their (p. 33) own free will,” and that “[r]estrictions upon the independence of States cannot therefore be presumed.”13 It paid no, or at least only marginal, attention to the sovereignty or independence of another State that might possibly be encroached upon by the assertions of the regulating State. While this may appear lamentable, one should nonetheless concede that the PCIJ in fact anticipated the increasing irrelevance of physical borders in a time of exploding transnational mobility of persons and activities.14 In the modern era, genuine sovereign equality of States may not imply that States always refrain from exercising extraterritorial jurisdiction, but, rather on the contrary, that “the people whom that sovereignty protects” ought not to be placed “at the mercy of the internal acts and politics” of another sovereign.15 Consequently, “[a] consensual legal system could not, in logic or practice, contain a rule prohibiting a sovereign state from prescribing rules against activities outside its borders that have harmful effects within the state’s territory,” that is from exercising (effects-based) jurisdiction.16

The flipside of the Lotus holding is an inflation of possible assertions of concurrent jurisdiction by different States.17 Moreover, if States could, at the level of exercising jurisdiction, do as they please as long as no prohibitive rule to the contrary has crystallized, the very regulating role of international law may be negated.18 Aware of this danger, in the 1970 Barcelona Traction case before the ICJ (which did not directly revolve around issues of jurisdiction), Judge Fitzmaurice therefore implicitly amended, albeit cautiously, the Lotus holding, emphasizing jurisdictional limits and restraint under international law, without, however, indicating the existence of particular international norms.19 In (p. 34) the field of criminal law, a number of jurisdictional principles have been derived from joint State practice and convictions. They arguably constitute customary international law. Their underlying structure appears as a scathing indictment of the Lotus theory of jurisdiction unbound. The basic norm is not the Lotus-like jurisdictional merry-go-round with States doing whatever they like, but the prohibition of extending a State’s jurisdiction beyond its physical borders. Other jurisdictional principles merely function as exceptions to the territoriality principle (see Chapters 3 and 4).

2.2  Customary International Law

(a)  Persisting influence of Lotus

The Lotus judgment has been vehemently criticized in the doctrine. It is nowadays often considered as obsolete,20 and even as never having been a precedent at all.21 Nevertheless, States continue to rely on it, as it is the only judgment of an international court directly relating to the problem of jurisdiction. In 1984, Kuijper stated that “insufficient research has been done so far to decide with any degree of certainty whether or not the Lotus decision has been set aside by subsequent developments in international customary law.”22 This statement probably still holds true today. Jurisdictional assertions based on the universality principle, which rose to prominence in the 1990s, are often implicitly premised on the permissive scheme of Lotus. Assertions of economic jurisdiction, for their part, are often only nominally premised on the principle of territoriality, with protesting (p. 35) States in practice bearing the burden of establishing that the territorial effects of a business-restrictive practice are insufficient to justify jurisdiction.

(b)  The priority of territorial jurisdiction under customary international law

It is widely submitted that, whilst Lotus permits extraterritorial prescriptive jurisdiction as a principle, arguably even as an a priori theoretical construction,23 customary international law based on actual State practice turns Lotus upside down. Under the customary international law of jurisdiction, as historically developed, extraterritorial prescriptive jurisdiction is arguably prohibited in the absence of a permissive rule.24 Although both the Lotus approach and the customary international law approach could yield the same outcome in a particular case,25 the fact that the Lotus approach places the burden of proof on the State assailing the jurisdictional assertion of another State, doubtless has the effect of widening the scope for extraterritorial jurisdiction.

In particular, the 1935 Harvard Research on International Law has been instrumental in the permissive principles approach becoming the main framework of reference for assessing the legality of jurisdictional assertions.26 Its Draft Convention on Jurisdiction with Respect to Crime has, however, never been translated into a treaty, given the sensitivity of limitations on a State’s jurisdiction.27 The proper scope ratione loci of a State’s laws thus remains a matter of customary international law, with the concomitant problems of ascertaining what that law actually is at a given moment in time.28

(p. 36) The permissive principles approach, as inductively derived from the practice of States, usually links sovereignty with territoriality (“territorial sovereignty”). It views territorial jurisdiction as the fundamental rule of the international jurisdictional order.29 In the 1928 Island of Palmas arbitral case for instance, arbiter Max Huber held:

Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the function of a State. This development … of international law [has] established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations.30

The primacy of territorial jurisdiction is usually premised on the principle of sovereign equality of States and the principle of non-intervention (or non-interference).31 These render unlawful “such legislation as would have the effect of regulating the conduct of foreigners in foreign countries.”32 Territoriality in essence then serves as a shield to prevent others from encroaching on their sovereignty,33 but also as a basic norm that prevents the State from encroaching on other States’ sovereignty.34

(p. 37) Other grounds of jurisdiction than the territoriality principle (“extraterritorial jurisdiction”) are not logically deduced from that principle. Instead, they function as exceptions to the cornerstones of international law—territoriality, sovereign equality, and non-intervention35—“based upon ideas of social expediency.”36 Still, they are no less manifestations of a State’s sovereignty.37

It is interesting to point out here that both the expansive view taken by Lotus (based on prohibitive rules) and the restrictive view of the permissive rules approach are both underpinned by the principle of sovereignty. Jurisdiction is indeed, as the PCIJ held in the Legal Status of Eastern Greenland case, “one of the most obvious forms of the exercise of sovereign power.”38 The former view, however, takes the perspective of the prescribing State, emphasizing its absolute sovereign right of unilaterally exercising jurisdiction,39 whereas the latter view takes the perspective of the State feeling the adverse effects of the jurisdictional assertions of the prescribing State, a view emphasizing notions of reciprocity that are necessary for any viable concept of sovereignty.40

It may finally be noted that it is sometimes submitted that the PCIJ in Lotus did not mean to impose the burden of proof upon those objecting to assertions of jurisdiction,41 or if it meant to, it was either plainly wrong or its holding is by now obsolete.42 States may indeed not have given themselves unlimited discretion in the matter of extraterritorial jurisdiction.43 Espousing a historical reading of the Lotus (p. 38) case, ICJ Judge Guillaume even argued in his separate opinion in the Arrest Warrant case that “[t]‌he adoption of the United Nations Charter proclaiming the sovereign equality of States, and the appearance on the international scene of new States, born of decolonization, have strengthened the territorial principle.”44 By the same token, three other ICJ judges considered, in their separate opinion in Arrest Warrant, Lotus to “represent … the high water mark of laissez-faire in international relations, and an era that has been significantly overtaken by other tendencies.”45 Probably, Lotus should be construed as principally authorizing jurisdiction on the basis of the objective territorial principle—which the Court repeatedly referred to (in casu jurisdiction based on the effects caused on a Turkish vessel which is to be assimilated to Turkish territory)46—or at least in cases with a strong nexus with the State, and not as a general matter.47

As we shall see in this study, States—in particular the United States and the European Union and its Member States—have never primarily substantiated their claims of economic jurisdiction in Lotus terms. Instead, they relied upon the classical principles of jurisdiction, although such required stretching them at times.48

(c)  Legitimate interests, foreign harm, power, and reasonableness

The permissive principles of jurisdiction are entwined in that they all put forward a link between the situation they govern and the competence of the State. This (p. 39) link is not necessarily the territory, although it classically was.49 It can as well be one of the two other constituent elements of the definition of a State, namely its population or its sovereign authority.50 More generally, it may be submitted that a State may not exercise its jurisdiction when it has no legitimate interest in or when it is not affected by an activity.51 Ramsey has termed this the “none of your business” rule.52 This may arguably be traced to the thirteenth century Italian jurist Bartolus.53

If a State does not have a link with, or an interest in, a subject-matter, it could not exercise its jurisdiction over that matter, even if foreign protest against a jurisdictional assertion remains absent. However, even if a link or interest could be discerned, and a State could rely on an accepted permissive principle, the legality of the exercise of jurisdiction under international law might depend on the harm that such exercise causes to other sovereigns.54 As Beale held as early as 1923, the legal wrongfulness for a sovereign to exercise his will derives from his infringing (p. 40) upon the rights of other sovereigns.55 Similarly, in 1972, Akehurst stated that “[t]‌he acid test of the limits of jurisdiction in international law is the presence or absence of diplomatic protests”56 stemming from the harm purportedly caused to them by a particular jurisdictional assertion.

The harm test will in practice be the salient test to mediate jurisdictional conflicts.57 Indeed, as States generally do not legislate or exercise jurisdiction when they have no interest in doing so, or when a situation does not somehow have a link with an element of their statehood,58 assertions of jurisdiction are presumptively valid under public international law,59 at least if one construes the classical ground of jurisdiction in a broad manner.60 Accordingly, “a theoretical preoccupation with the lawfulness in abstracto of these broad jurisdictional principles” may eclipse what Bianchi terms “a realistic approach to the complexities of actual cases.”61 Pursuant to the harm test then, it could be examined whether the exercise of jurisdiction in actual cases is reasonable, viz whether it does not amount to an abuse of rights or to arbitrariness. Legal certainty in jurisdictional matters is then not derived from the classical extraterritoriality doctrine,62 but from a case-by-case reasonableness analysis.

(p. 41) Harm is not an objective category. One particular sovereign may feel harmed by assertions of “extraterritorial” jurisdiction, while another sovereign may not feel harmed. This renders extraterritoriality, as Bianchi put it, “also a matter of degree.”63 In practice, the harm caused by an assertion of extraterritorial jurisdiction is a measure of the foreign protest leveled at the assertion. This protest may be regarded “as evidence of the fact that external effects of extraterritorial jurisdiction are being borne by the wrong parties.”64 It may cause the State asserting its jurisdiction to take into account the harmful effects on parties to which it is not democratically accountable, and possibly forgo its assertions, now and in similar future cases. It may be noted that a State ordinarily protests as soon as another State makes undesirable assertions of prescriptive jurisdiction. The former State will not wait until the enforcement of these assertions, because it will believe that the latter will sooner or later go on to effectively enforce its laws.65

Protests will, however, not always prove effective. Only if the affected State can credibly bring pressure to bear on the wrongdoer will he be likely to back down. International practice indicates that States scale back their jurisdictional assertions purportedly harming the interests of other States if the latter States bring pressure to bear on the former States, more in particular by launching a credible threat of retaliation against these States.66 Not all foreign governmental protests will indeed convince the “aggressive” State to forsake its jurisdictional assertions. Only if the foreign State can cause similar or greater reciprocal harm to the aggressive State will the latter probably defer. As far as future cases are concerned, the aggressive State will defer if its expected losses through possible retaliatory action outweigh its expected gains through extraterritorial jurisdiction.67 Deference will obviously depend on the foreign State’s political and economic power.

The efficiency of assertions of extraterritorial jurisdiction is a function of relative power. Put differently, “jurisdiction is grounded on the capacity to coerce (a ‘power’ theory of jurisdiction).”68 Powerful States will be able to impose their legislation on weaker States, while weaker States will almost never be able to impose their legislation on more powerful States. While this may be construed as a general norm of international realist thought, the question arises whether it is also (p. 42) a rule of customary international law. Weaker States might in practice defer to the assertions of stronger States, but they will usually do this only grudgingly, not necessarily because they are convinced that it is the right thing to do from a normative point of view. If conduct is evidenced by State practice, but if it is not buttressed by opinio juris, that is by the conviction that the conduct has legal validity, the conduct (Sein) may not be considered to be a norm of international law (Sollen).

If deference to foreign governmental protests were considered to be a norm of international law, one may conflate an external legal norm with an internal realist norm. States do not defer to foreign governmental protests because they are required to do so by some legal norm “out there” which they comply with in spite of their perception that not complying with it will advance their interests (external legal norm). On the contrary, States defer to such protests precisely because they have no other choice than deferring: foreign retaliation may directly cause them political or economic harm (internal realist norm). Accordingly, it appears that the restraints on the exercise of extraterritorial jurisdiction are not necessarily governed by law, but rather spontaneously by the intricate workings of the balance of power. This obviously hampers the construction of a legal framework of jurisdictional restraint.

The presence or absence of foreign protest is ill-suited as the defining factor to assess the legality of jurisdictional assertions because its argumentative strength is a function of relative power. Attempts have therefore been made at rendering the factors to be used in restraining jurisdiction more objective, with foreign protest being just one factor to be taken into account. Such attempts may face difficulties in obtaining a foothold in the real world of international relations, where various underlying threats and promises of States ordinarily determine the desired reach of a particular State’s law. The danger is real that, even if States and their courts are required to exercise jurisdiction reasonably in light of a number of “objective” although malleable factors, power-based jurisdiction will just masquerade as “reasonable jurisdiction.”

To date, the most commendable attempt to develop a jurisdictional rule of reason has been the American Law Institute’s adoption of § 403 of the Restatement (Third) of US Foreign Relations Law in 1987. This rule draws on the traditional international comity principle, but also on conflict of laws principles that protect private rather than sovereign interests. It operates as an overarching rule of jurisdictional restraint. Although the rule of reason considers the classical principles of criminal jurisdiction under public international law to be first-level principles of reasonableness,69 it sets forth a more intricate reasonableness analysis, since the said principles, given their open-ended nature, may be ill-suited to guarantee reasonableness by themselves. Comity, the rule of reason, and jurisdictional interest-balancing will be discussed in Chapter 5. In the next two chapters, the basic international law principles of jurisdiction (p. 43) (“first-level principles of reasonableness”) will be examined: the territoriality principle (Chapter 3), and the personality, protective, and universality principles (Chapter 4).

(d)  Relevant international law principles

The law of jurisdiction may be guided by a number of international law principles. These principles will be elaborated upon in Chapter 5.2, where an international law basis for the rule of reason is sought. They will be briefly introduced here.

It has been pointed out that the classical principles of jurisdiction are all based on a link of the State invoking the principle with the situation over which jurisdiction is exercised. Put differently, a State should have a genuine connection with the relevant situation. This principle of genuine connection was put forward by the ICJ in the Nottebohm case, a case of diplomatic protection.70 Jurisdiction based on the permissive principles could on the basis of genuine connection be considered as prima facie “reasonable.” The question then arises whether there is no need for a “most genuine connection,” since competing jurisdictional claims may all be based on a genuine connection. The principle of non-intervention may come to the rescue here: it may require that States only exercise jurisdiction when they do not intervene in the internal affairs of other States.

The principle of non-intervention is, however, an ill-defined principle. It requires States to take the legitimate interests of other States into account when they exercise jurisdiction.71 But how they should do so remains an enigma. A dominant line of argument in the doctrine has it that States should balance their contacts with a relevant situation and their interests in regulating it with other States’ contacts and interests. The rule of reason, as set forth in the US Restatement, is in fact based on this weighing of contacts and interests. It may be supported by a number of interrelated international law principles and concepts. The principle of proportionality, for one, may demand that States’ jurisdictional assertions be proportionate to the regulatory aim which they pursue: is the encroachment on other States’ sovereignty proportionate to the advantage that the asserting State secures for itself?72 The related principle of abuse of rights similarly requires that States do not exercise their jurisdictional rights in a way that disproportionately harms other States’ regulatory interests and goals.73 In the final analysis, the exercise of jurisdiction should be equitable, that is it should be substantively just.74

Regrettably, in a jurisdictional context, reasonableness, and the principles that support it, have been construed in a negative manner. In the traditional conception of international law as a law of co-existence, the principle of reasonableness is mainly seen as a principle of restraint, namely as a principle prohibiting States (p. 44) from encroaching on other States’ sovereignty. However, in a more modern conception of international law as a law of cooperation, jurisdictional reasonableness may be seen as a positive responsibility. Rather than being under a duty to refrain from exercising jurisdiction, States may in certain circumstances be under a duty to positively assert jurisdiction. This idea of sovereignty as responsibility will be further explored in Chapter 6.75

(e)  Method of ascertaining customary international law

As this study looks at jurisdiction from an international law perspective, and the law of jurisdiction is, in the absence of treaty law, primarily customary international law, it is useful at this point to set out the method of ascertaining customary international law that will be used.

It has been argued that a jurisdictional assertion is presumptively valid if a State has an interest in regulation (the “none of your business rule”). This is an approach situated in between the Lotus approach and a strict permissive principles approach. Under Lotus, all jurisdictional assertions are prima facie lawful (unless there is a specific prohibitive rule to the contrary), while under the permissive principles approach, jurisdictional assertions are prima facie unlawful (unless they could be justified under a specific ground of jurisdiction). The approach advocated in this study sees merit in both. It starts from the permissive principles approach, and observes that underlying this approach is a desire by the international community to authorize States to exercise their jurisdiction if they can advance a nexus with or if they entertain an interest in regulating a particular situation (territory, personality, security etc). As States will ordinarily not exercise their jurisdiction if they have no regulatory nexus or interest whatsoever, the bulk of their assertions will be presumptively valid: re-enter Lotus. This presumption of lawfulness of a unilateral assertion of jurisdiction could, however, be refuted if other States signal their objections in a timely manner. If the majority, or at least a significant portion of States that are, or could be, directly concerned by the assertion, indeed signal their objections through “public and continuing protest,”76 a norm of customary international law prohibiting an assertion of that specific kind will come into being. Protest could also consist of verbal or written acts.77 In respect of the law of jurisdiction in particular, it is unclear how a State could signal its disagreement other than by means of lodging a formal, non-physical, protest.

If a jurisdictional assertion is presumptively valid, States will have to signal their disapproval expressly or impliedly. If they remain silent, they may be assumed to consent. As Wolfke has pointed out in his study on custom in international law, “there is no ground for exclusion of abstention as a sort of practice leading to the (p. 45) formation of international custom.”78 Meijers has similarly argued that “participation which brings forth a rule of custom, can consist of positive acts but also could consist of the evident tolerance by a more passive state of the same acts.”79 At any rate, States should, in the present state of international law, not be authorized to hide behind a veil of ignorance: if a particular jurisdictional assertion may have an impact on their territory, nationals, interests etc they should voice their concerns swiftly; they should not be allowed to dispute the legality of an assertion long after its alleged adverse consequences have occurred.80 Abstention often is, and should ordinarily be, seen as “a result of positive decision or action.”81

It is not necessary, for a norm of universal customary international law to come into being, that all States have actively participated in its formation, nor even that they deliberately acquiesced in it.82 It may suffice that the States that are specially affected by such a norm have done so.83 Even if only a limited number of States are specially affected, the State practice requirement for a norm of customary general international law to come into being may be met. If a customary international law norm regarding the exercise of jurisdiction could be identified on the basis of the limited number of States that are specially affected, e.g. in the transatlantic area, newly independent States and “those new to a particular activity” will be bound by the norm as a norm of general customary law, even if these States do not agree with the norm which are bounded by the existing rules of customary law.84 The rule has crystallized, and only to the extent that States have persistently and openly dissented from the rule will they not be bound by it.85 Legal certainty and stability demand nothing less, since customary international law, especially regarding such a basic category of international law as delimiting spheres of State jurisdiction, sets, more than treaty law, the basic “rules of the game.”86

(p. 46) It may eventually be noted that the lawfulness of a jurisdictional assertion in one field of the law has no bearing on the lawfulness of a jurisdictional assertion in another field of the law: the scope of every field of law, and even of every provision of every field of law, has ordinarily to be assessed separately, given the widely diverging interests protected by different substantive legal rules and provisions (and the law of jurisdiction thus not being a monolith). If legal fields are sufficiently similar, however, reasoning on the basis of analogy for lawfulness purposes may be appropriate. The lawfulness of jurisdictional assertions in the field of antitrust law for instance, could be based on the acquired lawfulness of certain assertions in the field of criminal law, while the lawfulness of universal tort jurisdiction over gross human rights violations could be based on the acquired lawfulness of universal criminal jurisdiction over the same violations.

(f)  Giving effect to international jurisdictional rules in the domestic legal order

If a customary norm of jurisdiction has been ascertained, it is not a given that it will also be applied by State courts when they assess the reach of a domestic legal provision. Ideally, the norm is applied, irrespective of a State’s system of giving effect to (customary) international obligations in its internal law (monism, monism nuanced by the requirement of direct effect, or dualism). As Kuijper indeed pointed out, “[t]‌he rules relating to jurisdiction of states are so basic to the very existence of the state system itself, that the courts should not in any way encourage an excess of jurisdiction.”87 Not all legal systems, however, are willing to give effect to customary international law to its full extent.

When the customary norm is a norm which purportedly authorizes the exercise of a pre-existing State jurisdiction, most legal systems may be willing to give effect to it. The European Court of Justice, for instance, has, in the Wood Pulp case, relied on the territoriality principle under customary law so as to justify the application of EC antitrust law to foreign-based cartel agreements implemented in the European Community.88 Similarly, when there is purportedly no customary rule authorizing the exercise of jurisdiction, domestic courts may rely on the absence of such a rule to dismiss jurisdiction. In Jones v Saudi Arabia (2006), for instance, the UK House of Lords predicated its rejection of universal tort jurisdiction over torture offenses on the absence of permissive customary international law.89 It appears that in these instances, international jurisdictional norms are given effect by the courts primarily because they vindicate home-grown restrictive (p. 47) or expansive views of jurisdiction (see also Chapter 3.2), and only secondarily because they guarantee the peaceful co-existence of States.

International law rules that limit or expand pre-existing State jurisdiction, in contrast, face an uphill struggle in being given effect in the domestic legal order. Judges will ordinarily not be willing to expand their statutory jurisdiction on the ground that there is a customary international law norm authorizing them to do so.90 For reasons of democratic legitimacy, judges will understandably refuse to act upon permissive jurisdictional rules of customary international law. It is indeed up to the legislature to decide whether or not to give effect to an authorization to exercise jurisdiction under customary international law.

Somewhat counter-intuitively, courts may also be reluctant to give effect to obligatory international jurisdictional norms. Admittedly, States are ordinarily willing to give effect to (mostly treaty-based) international rules obliging States to exercise their jurisdiction (e.g. to exercise universal criminal jurisdiction over certain terrorist offenses when they do not extradite the perpetrator).91 But States will far less readily give effect to the (mostly customary law-based) international rules that require a State to limit its pre-existing domestic jurisdiction. In the field of international antitrust jurisdiction, the German Bundeskartellamt has given effect to the customary principle of non-intervention so as to restrict the exercise of statute-based German jurisdiction over foreign-based mergers in the Morris/Rothmans case.92 Yet not all legal systems are willing to go as far as setting aside an incompatible statutory norm in favor of a customary international law norm. Article 94 of the Dutch Constitution, for instance, prohibits Dutch courts from doing so. On the basis of this constitutional provision, a Dutch court refused to review Article 3 of the Dutch Criminal Law in Wartime Act (Wet Oorlogsstrafrecht), a provision which grants universal criminal jurisdiction over war crimes (also committed in non-international armed conflicts) to Dutch courts, in light of customary international law rules possibly prohibiting the exercise of universal jurisdiction over certain war crimes.93

(p. 48) It may be noted that the customary law on jurisdiction is essentially limiting in nature. Customary norms may well be incompatible with broad statute-based assertions of domestic jurisdiction, and may thus not be given effect in the domestic legal order. Where different interpretations of a statute are possible, however, courts may opt for the interpretation that is most in line with customary international law.94 This method of “consistent interpretation” undercuts sovereignty-related objections to applying customary international law in the face of incompatible domestic law. Yet where no interpretation in line with customary international law is reasonably possible, courts will need to set contrary domestic law aside if the customary law is to be given effect. Citing constitutional concerns, as in the Netherlands, they may refuse to do so, but in that case the State will be held responsible for the violation of international law.95

In view of US jurisdictional assertiveness, it may be appropriate to briefly discuss the role of limiting customary norms in the US legal order. In the United States, it is rather generally accepted that customary international law is the law of the land, and that US courts could apply customary norms.96 A vocal minority, however, has argued that, after the US Supreme Court’s decision in Erie v Tompkins (1938),97 US federal courts no longer have the power to apply norms of customary international law, as such norms form part of general federal common law, which federal courts can no longer “discover.”98 At any rate, customary international law norms on jurisdiction play an extremely narrow role in circumscribing the reach of US law. Ordinarily, as will be argued below in Chapter 3.3(b), the reach ratione loci of a US statute is based on an analysis of legislative intent, with the legislator being presumed not to have legislated extraterritorially. In some cases, courts seem to have relied, in appraising the reach of a statute, upon vague permissive customary norms so as to justify a jurisdictional outcome that was desirable from a policy perspective (Chapter 3.3(b)).

Footnotes:

1  e.g. JE Ferry, “Towards Completing the Charm: The Woodpulp Judgment,” (1989) EIPLR 19, 21 (stating, in the context of the law of jurisdiction, that “the objective of international law” is to “help to reduce conflicts between states”); J-M Bischoff and R Kovar, “L’application du droit communautaire de la concurrence aux entreprises établies à l’extérieur de la Communauté,” (1975) 102 JDI 675, 712 (stating that “[i]‌l appartient au droit international de s’efforcer de résoudre les conflits susceptibles de naître d’une … pluralité de competences”); HL Buxbaum, “Transnational Regulatory Litigation,” (2006) 46 Va J Int’l L 251, 304 (stating that the very purpose of international law “is to safeguard the international community against overreaching by individual nations”).

2  W Meng, “Neuere Entwicklungen im Streit um die Jurisdiktionshoheit der Staaten im Bereich der Wettbewerbsbeschränkungen,” (1981) 41 ZaörRV 469, 471 (criticizing the permissive principles approach on the ground that under this approach, a State would violate international law “der einen neu aftauchenden Sachverhalt rechtlich regelt, ohne dass hierzu bereits eine entsprechende völkerrechtliche Ermächtigungsnorm bestände. Schätzt man das Trägheitsmoment bei der Bildung von Völkerrechtsatzen realistisch ein, so bestehen bereits unter pragmatischem Gesichtspunkt entscheidende Einwände gegen diese Theorie.”).

3  PCIJ, Nationality Decrees in Tunis and Morocco, Advisory Opinion, PCIJ Reports, Series B, No 4, 23–4 (1923).

4  FA Mann, “The Doctrine of Jurisdiction Revisited after Twenty Years,” (1984-III) 186 RCADI 9, 53 (pointing out that “the material of international origin which has a bearing upon the doctrine of jurisdiction is extremely meager. The material of national origin is enormous.”); CL Blakesley, “Extraterritorial Jurisdiction,” in MC Bassiouni (ed), International Criminal Law II: Procedural and Enforcement Mechanisms (2nd edn 1999) 37 (stating that the international law on jurisdiction is much less developed than the domestic law on jurisdiction).

5  PCIJ, SS Lotus, PCIJ Reports, Series A, No 10 (1927).

6  ibid. 18.

7  ibid. 18–19.

8  Also Alvarez-Machain v United States, 331 F 3d 604 (9th Cir 2003). The United States had argued that the abduction of the plaintiff in Mexico was lawful pursuant to its authority to apply US criminal law extraterritorially under the Controlled Substances Act, 21 USC § 878(a)(3). The Ninth Circuit disagreed, noting that Congress did not authorize the unilateral, extraterritorial enforcement of this provision in foreign countries by US agents. According to the Ninth Circuit, “[e]‌xtraterritorial application, in other words, does not automatically give rise to extraterritorial enforcement authority.” Compare United States v Alvarez-Machain, 112 S Ct 2188 (1992); B Stern, “L’extraterritorialité revisitée: Où il est question des affaires Alvarez-Machain, Pâte de bois et de quelques autres … ,” (1992) 38 AFDI 268–88.

9  Lotus (above n 5) 18–19.

10  ibid. 20.

11  AV Lowe, “Blocking Extraterritorial Jurisdiction: the British Protection of Trading Interests Act, 1980,” (1981) 75 AJIL 257, 263.

12  R Jennings, Extraterritorial Application of Trade Legislation (1964) 311, cited in B Stern, “Can the United States Set Rules for the World? A French View,” (1997) 31 JWT 14. Illustrating that States may prescribe unreasonable laws while enforcing them reasonably, and vice versa, O’Keefe even argues that “[j]‌urisdiction to prescribe and jurisdiction to enforce are logically independent of each other.” He admits nonetheless that the act of prescription and the act of enforcement are, in practice, intertwined. R O’Keefe, “Universal Jurisdiction: Clarifying the Basic Concept,” (2004) 2 JICJ 735, 741.

13  Lotus (above n 5) 18–19.

14  FA Mann, “The Doctrine of Jurisdiction in International Law,” (1964-I) 111 RCADI 1, 36 (pointing out that the rejection of a strict test of territoriality “would not be inconsistent with the requirements of modern life”).

15  HG Maier, “Jurisdictional Rules in Customary International Law,” in KM Meessen (ed), Extraterritorial Jurisdiction in Theory and Practice (1996) 64, 66.

16  ibid.

17  Compare M Inazumi, Universal Jurisdiction in Modern International Law: Expansion of National Jurisdiction for Prosecuting Serious Crimes under International Law (2005) 138 (also drawing a link with the terrorism conventions of the 1970s, which seem to depart from the pre-eminence or even exclusivity of the principle of territoriality).

18  WW Cook, “The Application of the Criminal Law of a Country to Acts Committed by Foreigners Outside the Jurisdiction,” (1934) 40 W Va LQ 303, 326 (arguing that “if states really were fully ‘sovereign,’ … there would be no such thing as ‘international law’ ”); MR Garcia-Mora, “Criminal Jurisdiction Over Foreigners for Treason and Offenses Against the Safety of the State Committed Upon Foreign Territory,” (1958) U Pitt L Rev 567, 568 (terming the postulate of absolute sovereignty “the denial of a community of interests existing in the World Society and the belief that States live in isolation concerned only with interests of their own,” and that “its continuous adherence is highly incompatible with the existence of a World Society fundamentally grounded on the conception of the interdependence of States”).

19  ICJ, Case concerning Barcelona Traction, Light and Power Co. Ltd. (Belgium v Spain), [1970] ICJ Reports 105 (“It is true that under present conditions international law does not impose hard and fast rules on States delimiting spheres of national jurisdiction in such matters—namely bankruptcy jurisdiction (and there are of course others—for instance in the field of shipping, ‘anti-trust’ legislation, etc.)—but leaves to States a wide discretion in the matter. It does, however, (a) postulate the existence of limits—though in any given case it may be for the tribunal to indicate what these are for the purposes of that case; and (b) involve for every State an obligation to exercise moderation and restraint as to the extent of the jurisdiction assumed by the courts in cases having a foreign element, and to avoid undue encroachment on a jurisdiction more properly appertaining to, or more appropriately exercisable by, another State.”). Also Chapter 5.

20  e.g. Mann (above n 14) 35 (stating that Lotus countenances “a most unfortunate and retrograde theory” which “cannot claim to be good law”); ICJ, Arrest Warrant (Democratic Republic of Congo v Belgium), ICJ Rep 3 (2002), diss op van den Wyngaert, § 51 (“It has often been argued, not without reason, that the ‘Lotus’ test is too liberal and that, given the growing complexity of contemporary international intercourse, a more restrictive approach should be adopted today.”).

21  e.g. R Higgins, Problems and Process: International Law and How We Use It (1994) 77 (“. . . I do feel that one cannot read too much into a mere dictum of the Permanent Court. This is, for me, another example of the futility of deciding law by reference to an unclear dictum of a court made long years ago in the face of utterly different factual circumstances. We have better ways of determining contemporary international law.”); Lowe (above n 11) 263 (believing that it is “likely that the Court in the Lotus case only intended the presumption to apply in cases such as that then before it, where there is a clear connection with the forum”); Mann (above n 14) 35 (noting that “there is no certainty that [the Court] was contemplating the doctrine of jurisdiction in general or any of its ramifications outside the field of criminal law”). Also J Verhoeven, “Remarques critiques sur les lois [belges] du 16 juin 1993 et du 10 février 1999,” in J Wouters and H Panken, De Genocidewet in internationaal perspectief (2002) 188 (“Il est vrai qu’elle deviendrait singulièrement détestable si elle devait permettre à tous les Etats de se doter d’une compétence universelle … ce qui est bien autre chose que leur pouvoir de punir les infractions commises par ou sur un navire qui ne bat pas leur pavillon, seul en cause dans l’affaire soumise à la Cour permanente.”).

22  PJ Kuijper, “The European Community and the US Pipeline Embargo: Comments on Comments,” (1984) GYIL 72, 93.

23  A Bianchi, “Reply to Professor Maier,” in KM Meessen (ed), Extraterritorial Jurisdiction in Theory and Practice (1996) 74, 89.

24  Bradley terms this “the conventional view.” CA Bradley, “Universal Jurisdiction and US Law,” (2001) U Chi Legal F 323. Also ICJ, Arrest Warrant (above n 20), sep op Guillaume, § 4 (“Under the law as classically formulated, a State normally has jurisdiction over an offence committed abroad only if the offender, or at the very least the victim, has the nationality of that State or if the crime threatens its internal or external security. Ordinarily, States are without jurisdiction over crimes committed abroad as between foreigners.”).

25  If, as a principle, international law allows States to exercise extraterritorial jurisdiction, the State that claims jurisdiction need not cite a rule of international law authorizing it to exercise jurisdiction. Lotus, (above n 5) 18–19. This consideration merely implies that the burden of proof shifts to the objecting or complaining State. It is not a blank check for States to apply their rules extraterritorially, as indeed, once a prohibitive rule is identified upon submission of the objecting State, the jurisdiction of the prescribing State is restricted. Harvard Research on International Law, “Draft Convention on Jurisdiction with Respect to Crime,” (1935) 29 AJIL 439, 468 (“The two points of view presented in the case of the S.S. Lotus may be regarded as essentially nothing more than two avenues of approach to a single principle, significant only as the choice between them may determine which contestant should take the initiative in proving the law in the case before the court.”).

26  Harvard Research (above n 25) 444 (pointing out that “the international law of jurisdiction must rest primarily upon a foundation built of materials from the cases, codes and statutes of national law”).

27  Compare GR Watson, “The Passive Personality Principle,” (1993) 28 Tex Int’l LJ 1, 40–1 (noting that “a multilateral convention on jurisdiction would probably be riddled with reservations”).

28  ibid. 39 (noting, discussing United States practice, that “the public, Congress, and even many parts of the Executive Branch may never know whether the United States government repeatedly objects to or acquiesces in other governments’ use of [extraterritorial] jurisdiction,” as “[t]‌he relevant material may consist of confidential diplomatic notes or classified internal memoranda”).

29  However, see Lotus (above n 5) at 20 (holding that “in all systems of law the principle of the territorial character of criminal law is fundamental,” and that “the exclusively territorial character of law relating to this domain constitutes a principle which, except as otherwise provided, would, ipso facto, prevent States from extending the criminal jurisdiction of their courts beyond their frontiers.”); Mann (above n 4) 20 (stating that “in assessing the extent of jurisdiction the starting point must necessarily be [the territoriality of sovereignty] such as it was developed over the centuries”). See also International Bar Association, Report of the Task Force on Extraterritorial Jurisdiction 11 (2009) (“The starting point for jurisdiction is that all States have competence over events occurring and persons … present in their territory.”).

30  Perm Ct Arb, Island of Palmas (US v Netherlands), 2 RIAA 829 (1928). It has been argued that the Permanent Court seemed to limit territorial sovereignty to “the function of a State,” and would thus limit the exclusivity of territorial jurisdiction to the field of public law. The regulation of the relations between private persons through private law would not be a function of a State, and would be subject to the concurring competency of all States. Stern (above n 8) 254; M Akehurst, “Jurisdiction in International Law,” (1972-3) 46 BYIL 145, 190–1.

31  Mann has argued that there exists merely a terminological difference between sovereignty, territoriality, and the principle of non-intervention. Mann (above n 4) 20. Compare I Brownlie, Principles of Public International Law (4th edn 1990) 310 (“Extra-territorial acts can only lawfully be the object of jurisdiction if … (ii) … the principle of non-intervention in the domestic or territorial jurisdiction of other states [is] observed.”). The question obviously arises what the actual content of the principle of non-intervention is. Also section 5.2(a).

32  FA Mann (above n 14) 47.

33  HL Buxbaum, “National jurisdiction and global business networks,” (2010) 17 Ind J Global Legal Stud 165, 171 (submitting that the dominant “paradigm is one that aims at containment and confinement—at bounding the exercise of judicial authority”).

34  HL Buxbaum, “Territory, Territoriality and the Resolution of Jurisdictional Conflict,” (2009) 57 Am J Comp L 631, 668 (discussing the limiting and protective dimension of territoriality in the German system).

35  Compare H Ascensio, “Are Spanish Courts Backing Down on Universality? The Supreme Tribunal’s Decision in Guatemalan Generals,” (2003) 1 JICJ 690, 699 (who severely limits the scope of the principle of non-intervention as a general prohibitive rule in matters of extraterritorial prescriptive jurisdiction: “Considering the customary process which led to the establishment of the principle, ‘intervention’ is usually understood as a concrete, material act, infringing the exclusive jurisdiction of a state over its own territory. A normative act may constitute a kind of immaterial intervention only if it necessarily implies a material implementation in a foreign country, without the agreement of the territorial authorities, or a strong pressure over that country with considerable negative consequences.”).

36  Cook (above n 18) 328.

37  AJ Colangelo, “Spatial Legality,” (2012) 107 Nw UL Rev 69, 107 (noting that while “ ‘sovereignty’ previously was invoked to limit a State’s jurisdiction to its own territory, it now justifies jurisdiction outside a state’s territory and inside the territory of other States”).

38  PCIJ, Legal Status of Eastern Greenland (Denmark v Norway), PCIJ Reports, Series A/B, No 53, 48 (1933).

39  Compare Inazumi (above n 17) 133.

40  e.g. Mann (above n 4) 20 (“[J]‌urisdiction involves both the right to exercise it within the limits of the State’s sovereignty and the duty to recognize the same right of other States.”).

41  AV Lowe, “Jurisdiction,” in MD Evans (ed), International Law (2003) 329, 335; Lowe (above n 11) 263 (rejecting the idea that the Lotus court would have accepted “the view that there is a presumption in favour of the legality of claims to legislative jurisdiction”).

42  Inazumi (above n 17) 134 (“[N]‌owadays, States are expected to indicate the evidence for the legality of their act”); Bianchi (above n 23) 89 (“The Lotus case is too anachronistic and specific to be a starting point for analysis.”).

43  RY Jennings, “Extraterritorial Jurisdiction and the United States Antitrust Laws,” (1957) 33 BYIL 146, 150 (“Are we to conclude then that extraterritorial jurisdiction is a matter left within the discretion of each sovereign State; that it is not governed by international law? The practice of States leans against such a conclusion. For the fact is that States do not give themselves unlimited discretion in the matter.”).

44  ICJ, Arrest Warrant (above n 20), sep op Guillaume, § 15. Contra ibid. sep op Ranjeva, § 9 (“Sans aucun doute, on peut analyser l’évolution des idées et des conditions politiques dans le monde contemporain comme favorable à une atténuation de la conception territorialiste de la compétence et à l’émergence d’une approche plus fonctionnaliste dans le sens d’un service au profit des fins supérieures communes.” Judge Ranjeva subsequently noted, however, that “[l]‌e caractère territorial de la base du titre de compétence reste encore une des valeurs sûres, le noyau dur du droit international positif contemporain”).

45  ibid. joint sep op Higgins, Kooijmans, and Buergenthal, § 51 (arguing that the “vertical notion of the authority of action [of States as agents for the international community] is significantly different from the horizontal system of international law envisaged in the ‘Lotus’ case”).

46  Lotus (above n 5) 23. It may be noted that international conventions on the law of the sea overruled the Lotus holding: Article 11 of the 1958 Convention on the High Seas and Article 97(1) of the UN Convention on the Law of the Sea (“In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.”).

In Lotus, jurisdiction could also be premised on the passive personality principle, given the Turkish nationality of the victims, although—since the accident happened on the high seas—it may not be regarded as authority for passive personality jurisdiction within the territory of another State. Higgins (above n 21) 66.

47  Also AV Lowe (above n 11) 258–9 (“If [the Court] intended more than this, it was probably wrong.”). Also, although not specifically discussing Lotus, and taking a rather broad view: KM Meessen, Völkerrechtliche Grundsätze des internationalen Kartellrechts (1975), 101, 171; KM Meessen, “Zusammenschlusskontrolle in auslandsbezogenen Sachverhalten,” (1979) ZHR 143 (holding that, in the face of the multiplicity of economic and antitrust conceptions, a general international jurisdictional rule could not be developed, and that international law merely requires there to be a significant nexus).

48  e.g. Lowe (above n 11) 263, citing (1973) Digest of United States Practice in International Law, 197–8.

49  See Buxbaum (above n 34) 632 (“The factual links between particular conduct and a given territory, or between the effects of that conduct and a given territory, determined a state’s lawmaking authority over the conduct.”).

50  B Stern, “L’extraterritorialité revisitée: Où il est question des affaires Alvarez-Machain, Pâte de bois et de quelques autres …” (1992) 38 AFDI 251; Brownlie (above n 31) 310 (arguing that the threshold principle to be observed if extraterritorial acts are lawfully to be the object of jurisdiction is “that there should be a substantial and bona fide connection between the subject matter and the source of the jurisdiction”).

51  e.g. M Morris, “High Crimes and Misconceptions: the ICC and non-Party States,” (2001) 64 Law & Contemp Probs 13, 64 (stating that “the customary international law of criminal jurisdiction is based on a perceptible, if somewhat ill-defined, set of principles regarding the legitimate prosecutorial interests of States.”).

52  MD Ramsey, “Escaping ‘International Comity’,” (1998) 83 Iowa L Rev 893, 920. Also Jennings (above n 43) 152 (“It is reasonable to say … that international law will permit a State to exercise extraterritorial jurisdiction provided that State’s legitimate interests (legitimate that is to say be interests accepted in the common practice of States) are involved …”); AT Guzman, “Choice of Law: New Foundations,” (2002) 90 Geo LJ 883, 894 (“When an activity has no effect on any person within a jurisdiction, that jurisdiction has no reason to regulate the activity,” thereby distinguishing between an interest in permitting and an interest in regulating an activity).

53  D Oehler, Internationales Strafrecht (2nd edn 1983) 69 (stating that with Bartolus’s principle that “statuta sunt jus proprium civitatis,” “die Lehre, dass die Einzelnorm des Strafanwendungsrechts immer einen Anknüpfungs-, besser einen Beziehungspunkt benötige, erkannt und ausgedrückt [wird],” a doctrine which guards against political instrumentalization of the law).

54  Compare ICJ, Barcelona Traction (above n 19) 105, sep op Fitzmaurice (stating that under international law, every State should “exercise moderation and restraint as to the extent of its jurisdiction” so as “to avoid undue encroachment on a jurisdiction more properly appertaining to” another State); Jennings (above n 43) 153 (arguing that against the international law authorization to apply one’s antitrust laws extraterritorially “must be set also the legitimate and reasonable interests of the State whose territory is primarily concerned, for the extraterritorial exercise of jurisdiction must not be permitted to extend to the point where the local law is supplanted: where in fact it becomes an interference by one State in the affairs of another.”); Brownlie (above n 31) 310 (“Extra-territorial acts can only lawfully be the object of jurisdiction if … (iii) … a principle based on elements of accommodation, mutuality, and proportionality [is] applied. Thus nationals resident abroad should not be constrained to violate the law of the place of residence.”); Inazumi (above n 17) 134 (“[A]‌n act of State is generally presumed to be legal until it is proven that it undermines the rights of other States … It should also be remembered that merely because a jurisdiction is legal does not necessarily mean that a State has the absolute right to exercise it.”); Bianchi (above n 23) 78 (stating that “[p]henomena of extraterritorial jurisdiction … vary a great deal in intensity, depending on the potential of collision with other states’ commands and on how intrusive into other legal orders the attempt to exercise authority turns out to be”).

55  JH Beale, “The Jurisdiction of a Sovereign State,” (1923) 36 Harv L Rev 241.

56  Akehurst (above n 30) 176. Also A Colangelo, “The Legal Limits of Universal Jurisdiction,” (2006–7) 47 Va J Int’l L 149, 184 (“the reactions of national and territorial states determine the customary status of the universal jurisdiction court’s definitional expansion”).

57  Compare Ramsey (above n 52) 922.

58  As any “extraterritorial” jurisdictional assertion is aimed at defending the interests of the State as a territorially defined entity, this assertion may be said to always have a territorial nexus. Compare HG Maier, “Jurisdictional Rules in Customary International Law,” in KM Meessen (ed), Extraterritorial Jurisdiction in Theory and Practice (1996) 64, 65 (“Although the presumed limitation of governmental authority to a nation’s territorial boundaries flows from the historic concept of the modern nation state, the proposition that a state may on occasion exercise authority over events beyond its borders also flows, paradoxically, from the principle that the interests of the people that make up the state’s population are territorially defined”) (emphasis added).

59  Inazumi (above n 17) 170; ES Podgor, “ ‘Defensive Territoriality’: a New Paradigm for the Prosecution of Extraterritorial Business Crimes,” (2002) 31 Ga J Int’l & Comp L 1, 13–4 (finding that “the reality is that few prosecutions of extraterritorial criminal conduct will be turned aside as falling outside the boundaries of international law. The bases of jurisdiction leave ample room for courts to find support for permitting the prosecution to proceed with cases premised on extraterritorial acts.”).

60  Construed strictly, they may, as Bianchi pointed out, “fall short of doing justice in many cases,” given the fact that the “internationalization of commercial and financial markets has enormously complicated factual matrices.” Bianchi (above n 23) 85. Indeed, as argued below in the context of inter alia antitrust, a strict reading of territoriality may give corporations free rein to prey on foreign markets.

61  ibid. 83. Also A Bianchi, “Extraterritoriality and Export Controls: Some Remarks on the Alleged Antinomy Between European and US Approaches,” (1992) 35 GYIL 366, 429. Also, in the context of criminal jurisdiction: J Martin, Strafbarkeit grenzüberschreitender Umweltbeeinträchtigungen. Zugleich ein Beitrag zur Gefährdungsdogmatik und zum Umweltvölkerrecht (1989) 137 (“Die Prinzipien des internationalen Strafrechts lassen sich … gewissermassen als Regelbeispiele dafür verstehen, wann die Ausdehnung der Strafgewalt völkerrechtlich gestattet ist. Selbst wenn eine Staat formal unter ein solches Prinzip des internationalen Strafrechts einzuordnen ist, kann es aber sein, das die Anknüpfung im konkreten Fall nicht ausreicht.”).

62  Compare X, Note, “Predictability and Comity: Toward Common Principles of Extraterritorial Jurisdiction,” (1985) 98 Harv L Rev 1310, 1319 (holding that “[e]‌xtraterritoriality doctrine lacks both the coherence imparted by guiding principles and the certainty provided by clear rules”).

63  Bianchi (above n 23) 79.

64  G Schuster, “Extraterritoriality of Securities Laws: An Economic Analysis of Jurisdictional Conflicts,” (1994) 26 Law & Pol’y Int’l Bus 165, 183. In fact, these protests are not so much directed against the exercise of legislative jurisdiction but rather against the likelihood of enforcement. Mann (above n 14) 14 (stating that “it is not difficult to visualize circumstances in which the exercise of legislative jurisdiction so plainly implies the likelihood of enforcement that foreign States are entitled to challenge its presence on the statute book”).

65  Bianchi (above n 61) 427.

66  e.g. the rationale of restricting jurisdiction in Lauritzen v Larsen, 345 US 571, 582 (1953) (US Supreme Court stating that it “cannot be unmindful of the necessity for mutual forbearance if retaliations are to be avoided”), and in McCulloch v Sociedad Nacional de Marineros de Honduras, 372 US 10, 21 (1963) (US Supreme Court stating that upholding jurisdiction in that particular case would “invite retaliatory action from other nations as well as Honduras”).

67  Schuster (above n 64) 189.

68  X (above n 62) 1319.

69  § 402 of the Restatement (Third) of US Foreign Relations Law.

70  ICJ, Nottebohm (Liechtenstein v Guatemala), ICJ Rep 4 (1955). For elaboration: Chapter 5.2(b).

71  For elaboration: Chapter 5, section 5.2(a).

72  See discussion in Chapter 5, section 5.2(d).

73  See discussion in Chapter 5, section 5.2(e).

74  See discussion in Chapter 5, section 5.2(c).

75  See also discussion in Chapter 5, section 5.2(f).

76  H Meijers, “On International Customary International Law in the Netherlands,” in IF Dekker and HG Post (eds), On the Foundations and Sources of International Law (2003) 88.

77  ibid. 84 (“Oral and written discourses are acts, too.”). Contra K Wolfke, “Some Persistent Controversies Regarding Customary International Law,” (1993) 24 NYIL 1, 3.

78  K Wolfke, Custom in Present International Law (2nd edn 1993) 61.

79  Meijers (above n 76) 86 and 88.

80  Also Wolfke (above n 78) 8–9 (“The argument sometimes raised that the omission of any protest may be due to a reason other than the tacit acceptance of the practice is unconvincing. Whatever the reason for such an omission, nowadays a State does this at its own risk”) (footnote omitted).

81  Wolfke (above n 78) 61.

82  International Law Association (ILA), Committee on Formation of Customary (General) International Law, Final Report, Statement of Principles Applicable to the Formation of General Customary International Law, Report of the 69th Conference (2000) 734, Rule 14(ii).

83  ICJ, North Sea Continental Shelf Cases (Germany v Denmark; Germany v Netherlands), ICJ Rep 3, 42, § 73 (1969).

84  ILA (above n 82) 735, commentary (b) to Rule 14.

85  ibid. 738, Rule 15.

86  While this is the generally accepted rule, it may appear as unfair. For one, the rules governing State succession to treaties sometimes allow newly independent States to start with a clean slate in respect of treaty obligations (Vienna Convention on Succession of States in Respect of Treaties, 22 August 1978, 1946 UNTS 3). For another, one cannot expect that States track the development of customary international law in relation to activities which they do not have an interest in at present; developing countries already lack resources to monitor the development of customary law relating to activities which they do have an interest in. e.g. AE Roberts, “Traditional and Modern Approaches to Customary International Law: A Reconciliation,” (2001) 95 AJIL 757, 767 (criticizing the “democratic deficit” of traditional custom). It may be noted, obviously, that, if the jurisdictional rule has a merely regional character, States belonging to another region could argue that no customary rule authorizing the jurisdictional assertion has crystallized as a matter of general international law.

87  PJ Kuijper, “From Dyestuffs to Kosovo Wine: from Avoidance to Acceptance by the European Community Courts of Customary International Law as Limit to Community Action,” in Dekker and Post (above n 76) 169.

88  ECJ, Joined Cases 89, 104, 114, 116, 117 & 125 to 129/85, A Ahlstrom Osakeyhtio v Commission, [1988] ECR 5193, § 18.

89  Jones v Saudi Arabia, [2006] UKHL 26, § 34 (citation omitted) (“The court asserted what was in effect a universal tort jurisdiction in cases of official torture for which there was no adequate foundation in any international convention, state practice or scholarly consensus …”).

90  e.g. Court of Appeal of Paris, Case of Javor, (1996) 127 ILR 126, at 131 (holding that “[t]‌he [jurisdictional] provisions [of the Geneva Conventions’ grave breaches regime] are of too general a character to create directly rules of extra-territorial jurisdiction,” since “[s]uch rules must necessarily be drafted in a detailed and precise manner”). Contra Investigating Magistrate Brussels, Pinochet, 6 November 1998, (1999) Revue (belge) de droit pénal 278 (investigating judge holding that universal jurisdiction, even in absentia, obtained over crimes against humanity under international law, even though Belgian law at the time did not provide for universal jurisdiction over such crimes, on the ground that “in international humanitarian law, the risk does not so much seem to reside in national authorities reaching beyond their jurisdiction but rather in their looking for pretexts to justify their having no jurisdiction, thereby leaving the door open for impunity for the gravest crimes (which is surely contrary to the raison d’être of rules of international law)”) (own translation).

91  e.g. Article 12bis of the Preliminary Title of the Belgian Code of Criminal Procedure (awarding obligatory jurisdiction to Belgian courts if international law obliges Belgium to establish its jurisdiction).

92  BKartA, WuW/E 1943, 1953 (Morris/Rothmans).

93  LJN: AZ9366, Gerechtshof ‘s-Gravenhage, 09-751005-04, 29 January 2007, § 5.4.2. For an appraisal: C Ryngaert, “Universal Jurisdiction over Genocide and Wartime Torture: an Appraisal of the Afghan and Rwandan Cases (2007),” (2007) Hague Justice Journal 13. In the field of jurisdiction, this impossibility of reviewing statutory law in light of incompatible customary international law was affirmed by the Dutch Supreme Court (Hoge Raad) in the Bouterse judgment, reprinted in (2001) 32 NYIL 287. Citing constitutional concerns, the Court refused to ascertain whether a norm of customary international law authorized the exercise of universal jurisdiction over torture as early as 1982.

94  On consistent interpretation: G Betlem and A Nollkaemper, “Giving Effect to Public International Law and European Community Law Before Domestic Courts: a Comparative Analysis of the Practice of Consistent Interpretation,” (2003) 14 EJIL 569.

95  A court is an organ of the State under Article 4 of the ILC’s Draft Articles on State Responsibility. Court decisions may entail the international responsibility of that State.

96  The Paquete Habana, 175 US 677, 700 (1900) (“International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.”).

97  304 US 64 (1938).

98  Notably CA Bradley and JL Goldsmith, “Customary International Law as Federal Common Law: a Critique of the Modern Position,” (1997) 110 Harv L Rev 815; CA Bradley, “Universal Jurisdiction and US Law,” (2001) U Chi Legal F 323, 329–30.