Every year The Hague Academy of International Law is organizing a Centre for Studies and Research in International Law and International Relations.
The centre d'étude theme for this year (2019) will be:
Extraterritoriality - L'extraterritorialité
Directors of Research:
Prof. Hannah BUXBAUM (Indiana University Maurer School of Law)
Prof. Thibaut FLEURY GRAFF ( University of Rennes 1)
In its famous Lotus judgment of 1927, the Permanent Court of International Justice held that 'far from laying down a general 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.'
Nearly a century later, this discretion has been widely exercised by States, which have increasingly engaged in extraterritorial interventions - legislative, judicial, and even in connection with enforcement. The practice of the United States - in areas including access to electronic data stored abroad, the fight against corruption, the private enforcement of regulatory law, and sanctions for violation of embargoes - is illustrative, and has become a focal point for discussions of extraterritoriality. But it is only one example of such practices, which today invite us to examine in depth many aspects of international law, both public and private.
The question of extraterritoriality requires the examination, at a very general level, of the allocation of power among States. More specifically, it requires consideration of the factors that are likely (or not) to justify the extraterritorial scope of state action, particularly in areas involving transnational movements and flows: cybersecurity, cyber defense, human rights, migration, global cartels, global capital markets. The members of the 2019 Center will be able to conduct research on the character and limits of a State’s territorial jurisdiction, the traditional connecting factors linking a State’s authority to situations arising outside its borders, and the possibility of 'extraterritorial regimes' in certain areas.
They will also study conflicts of jurisdiction - judicial, legislative and/or enforcement - that may give rise to claims of extraterritoriality, as well as ways to prevent or resolve such conflicts. The question of the extraterritorial scope of international obligations will also be addressed. Lastly, a historical overview of the notion of extraterritoriality will enable us to place it within the context of international law’s development. In the course of our work, and with respect to all topics, we will emphasize concrete examples of extraterritorial action: national or international decisions, State practices, agreements, etc.
Bibliography
- Brilmayer, L., "The New Extraterritoriality: Morrison v. National Australia Bank, Legislative Supremacy, and the Presumption against Extraterritorial Application of American Law", Southwestern Law Review, 40 (2011), No. 4, pp. 655-686.
- Buxbaum, H.L., "The Scope and Limitations of the Presumption against Extraterritoriality", AJIL Unbound, 110 (2016), pp. 62-67.
- Colangelo, A.J., "What Is Extraterritorial Jurisdiction? - Symposium on Extraterritoriality", Cornell Law Review, 99 (2014), No. 6, pp. 1303-1352.
- Chenwi, L.M., Bulto, T.S., Extraterritorial Human Rights Obligations from an African Perspective, Cambridge; Antwerp; Portland, Intersentia, 2018.
- Cremona, M., Scott, J., EU Law beyond EU Borders: the Extraterritorial Reach of EU Law, Oxford, Oxford University Press, 2019.
- Dodge, W.S., "The Presumption against Extraterritoriality in Two Steps", AJIL Unbound, 110 (2016), pp. 45-50.
- Guilfoyle, D., "SS Lotus (France v Turkey) (1927)", in Bjorge, E. and C. Miles (eds.), Landmark Cases in Public International Law, Oxford, Hart Publishing, 2017, pp. 89-109.
- Margolies D.S., (et al), The Extraterritoriality of Law: History, Theory, Politics, Abingdon, Oxon; New York, NY, Routledge, 2019.