This chapter contains sections titled: Endnotes.

This paper provides a philosophical critique of the principles that govern extraterritorial punishment under international law. It advocates an interest-based theory of punishment that accounts for states' right to punish offences committed on their territory or against their sovereignty, security or important governmental functions. Yet, it criticizes the states' well-established right to punish crimes committed extraterritorially on grounds of the nationality of the offender or that of the victim. Indeed, it shows that the arguments on the basis of which these (...) jurisdictional bases are commonly defended either beg the fundamental question they are meant to answer or are simply committed to much broader rules than those currently in force. The last section of this paper examines whether competing justifications for legal punishment based on other grounds have more promise in terms of being able to better explain how the international law currently regulates extraterritorial punishment. It suggests that even refined consequentialist and deontological theories ultimately do not fare as well as the argument advocated here in accounting for certain core intuitions regarding the practice of legal punishment. (shrink)

The international community has yet to develop a broadly accepted philosophical rationale for the extraterritorial adjudication of war crimes. Instead, several justifications exist in a state of tension that produces uncertainties in the applicable legal doctrines and policies. This article explains how the competition between the “atrocities” approach on the one hand, and the statist and humanitarian rationales on the other, causes instability in the regime. It advocates for increased attention to the philosophical grounding of extraterritorial war crimes trials, particularly (...) in light of the increasing frequency of such trials before international courts as well as national courts exercising universal jurisdiction. (shrink)

Since the early 2000s, the United States’ different administrations of justice have been prosecuting foreign companies suspected of violating US laws on bribery of foreign public officials and of failing to respect embargoes and economic sanctions. Even if these violations take place outside US borders, the American prosecution authorities consider themselves legitimate to intervene. European multinationals have been particularly sanctioned. For instance, in 2014, fines reached up to 9 billion dollars for the French bank BNP, which was accused of using (...) dollars in its transactions with certain countries sanctioned by the US. Punishing companies and hitting them in the wallet are not the only objectives of the American administration. The United States takes advantage of legal procedures against foreign companies to collect millions of bytes of data, sometimes including sensitive information on them as well as on their partners and markets. Facing this legal offensive, Europe is still struggling to provide responses to protect its companies. (shrink)

In this article, I interrogate how the UK government constructs and manipulates the idiom of the vulnerable female, trafficked migrant. Specifically, I analyse how the government aligns aspects of its anti-trafficking plans with plans to enhance extraterritorial immigration and border control. In order to do this, I focus on the discursive strategies that revolve around the UK’s anti-trafficking initiatives. I argue that discourses of human trafficking as prostitution, modern-day slavery and organised crime do important work. Primarily, they provide the government (...) with a moral platform from which it can develop its regulatory capacity overseas. It is not my intention to suggest that the government’s anti-trafficking plans are superficial, and that extraterritoriality is the sole driver. On the contrary, I argue that complex interrelationships exist and while the government’s interest in protecting vulnerable women from sexual exploitation may seem to be paramount, I assert that in fact it intersects with other agendas at key points. I consider how government action to protect vulnerable women in trafficking ‘source’ and ‘transit’ countries such as development aid and repatriation schemes relate to broader legal and political concerns about protecting the UK from unwanted ‘Others’. (shrink)

This book provides the first full account, explanation, and critique of extraterritorial punishment in international law.

Book Review: Noam Lubell, Extraterritorial Use of Force against Non-State Actors.

Citizenship and residency are basic conditions for political inclusion in a democracy. However, if democracy is premised on the inclusion of everyone subject to collectively binding decisions, the relevance of either citizenship or residency for recognition as a member of the polity is uncertain. The aim of this paper is to specify the conditions for being subject to collective decisions in the sense relevant to democratic theory. Three conceptions of what it means to be subject to collectively binding decisions are (...) identified and examined, referring to those subject to legal duties and legal powers or to those subject to legal duties and state institutions. The contrast between them is most clearly illustrated in relation to non-residents, those not present in the territory of the state. The extraterritorial dimension of the law thus highlights a fundamental ambiguity in the theory of democracy concerning the extension of political rights. (shrink)

ABSTRACT In this paper we explore how a public national media outlet, the British BBC, represents an international legal case which has a highly political nature. The case is US versus Huawei/meng Wanzhou, which took place between 2018 and 2021. Accusations were that the Chinese technology company committed fraud, leading the global HSBC bank to breach US sanctions against Iran. The charges were made by the US using what is called an ‘extraterritorial law’, which, while rejected as law by governments (...) around the world, is policed by US economic powers and control over international finance. Using Critical Discourse Analysis we show that, while the BBC presents much detail of legal process, the actual nature of the law the US uses to bring criminal charges against international companies and banks, is neither considered nor questioned. Our interest is how such a law, which has a huge influence over global trade and politics, is presented to the public in this particular case. We contribute to the position that the nature of laws, how they are used and known, must always be understood within the prevailing discourses of the moment. (shrink)

The United Nations Guiding Principles on Business and Human Rights, resulting from the work of John Ruggie and his team, largely depend on state action and corporate good will for their implementation. One increasingly popular way for states to prevent and redress violations of human rights committed by companies outside their country of registration is to adopt measures with extraterritorial implications, some of which are presented in the article, or to assert direct extraterritorial jurisdiction in specific instances. Some United Nations (...) human rights bodies and non-governmental organisations are clearly supporting the use of extraterritoriality and have argued that international human rights law places an obligation on states to embrace extraterritoriality so as to better control the activities of companies registered on their territories. In this context, the article aims to determine whether extraterritoriality is the magic potion that will help enhance corporate accountability for human rights violations committed overseas. The article explores whether such obligation exists and, beyond this, whether extraterritoriality should be further encouraged. (shrink)

International human rights law has struggled to define a standard for determining the extraterritorial applicability of its norms that would reconcile the ethos of universal entitlement, on the one hand, with the centrality of borders in delineating state powers and responsibilities under international law, on the other hand. The case law of the UN Human Rights Committee and the European Court of Human Rights favors barring states from engaging in conduct outside their borders that would be impermissible if undertaken inside (...) their borders. Still, attempts to demarcate the precise scope of extraterritorial application through allusion to degrees of control over individuals or areas, or by the nature of the obligation itself – have led to unsatisfactory, if not arbitrary results. This article opines a move to functionalism as the basis for extraterritorial applicability – requiring states to protect IHRL in situations they can do so. Under this approach, which takes universality seriously, borders lose much their normative significance. I suggest limiting the functional approach to extraterritorial applicability in accordance with two key notions: the intensity of power relations – factual relations of power entailing direct, significant and foreseeable potential impact – should result in the application of IHRL obligations; or, alternatively, special legal relations – relations of power that put the state in a unique legal position to afford IHRL protection would also justify the imposition of extraterritorial obligations. (shrink)

A lo largo de la siguiente conversación se discutirán algunas de las condiciones e implicaciones que acompañan a la noción de exilio, tanto para la historia del pasado como para su representación desde el presente. La categoría de exilio —como forma de extraterritorialidad— ha jugado un rol central en la reflexión del historiador italiano Enzo Traverso. Desde la perspectiva que nos ofrece, el exilio no fue solo una condición compartida por las masas y los intelectuales del pasado siglo. Al contrario, (...) el potencial semántico de esta categoría refleja las tensiones diacrónicas y sincrónicas que surgen cuando nos enfrentamos a los problemas de nuestro pretérito y nuestro presente. Su generalización, al fin y al cabo, nos permite apreciar algunos rasgos básicos del siglo XXI. Sobre esta multiplicidad de significados del exilio gira el texto que presentamos. (shrink)

Many affluent states seek to discharge their responsibilities to refugees through extraterritorial policies, which limit the number of refugees that they admit whilst contributing to protection in...

Offering a political optic on transnationalism, this article shows how the Partido Acción Nacional from Guanajuato, Mexico, seeks to reconstitute Guanajuatense transnational migrants as clients and funders of state policies, as political subjects with “dual loyalty” but limited political autonomy. To co-opt migrants into development projects designed bythe state but financed bythe migrants, partyelites reconfigure the meanings of “migrant,” “region,” and “citizen.” This is contested by migrant leaders whose views of extraterritorial citizenship, translocal community, and partyloy alty differ from views (...) of the partyelites. The migrants see the state as diverting their energies from true civil societyand local development initiatives across borders. (shrink)

In this review essay, I offer reflections on three themes. I begin by exploring Alejandro Chehtman’s expressed methodological commitments. I argue that his views move him closer to Lon Fuller and away from the thin accounts offered by HLA Hart and Joseph Raz. Moreover, to make sense of his views, he must offer a more normatively robust theory of law. Second, I turn to his use of Raz’s theory of authority. I argue that Chehtman fails to distinguish between Raz’s views (...) and his own, but more importantly, I maintain that his discussion of Raz is superfluous: in the course of “unpacking” Raz’s views, he leads us back to his own core theses. Finally, I explore Chehtman’s ability to deal with perennial worries that plague any attempt to offer a justification for International Criminal Law in general, and the International Criminal Court in particular (i.e., “victor’s justice”, “show trials”, “peace vs. justice”). I argue that unless Chehtman is able to demonstrate that the enforcement of International Criminal Law is able to impart dignity and security on the most vulnerable, his account will be significantly weakened. (shrink)

In international human rights law ‘jurisdiction’ is the centre of the debate on extraterritorial obligations. The purpose of the present paper is to a) analyse how facts and principles contribute t...

Business actors create and operate in global production networks that bring them in contact with regulatory frameworks across multiple levels and domains. Importantly, they also participate in shaping those regulatory frameworks. But what are the specific interests they pursue in their involvement in regulation? Traditionally, scholars tended to assume that the focus of business actors is primarily on avoiding (stringent) public regulation. Recent developments have highlighted a broader range of business interests, however. Accordingly, this paper investigates business positions on the (...) ascription of duties and rights in regulation, specifically in the fields of due diligence, supply chain liability, and extraterritorial jurisdiction. The paper explores these issues in the context of business regulation in the field of Human Rights, looking at the United Nations Guiding Principles on human rights, their German implementation in the ‘Nationaler Aktionsplan Wirtschaft und Menschenrechte’ and the associated processes, in particular. (shrink)

In anticipation of extraterritorial application of antiabortion laws, many states have enacted laws that attempt to shield abortion providers, helpers, and patients from civil, professional, or criminal liability associated with legal abortion care. This essay analyzes and compares the statutory schemes of the seven early adopting shield states: California, Connecticut, Delaware, Illinois, Massachusetts, New Jersey, and New York. After describing what the laws do and how they operate, we offer reflections on coming disputes, areas of legal uncertainty, and ways to (...) improve future shield laws. (shrink)

Why do most of us consider ourselves free but also believe there is little we can change in the way the world is run - individually, severally, or even collectively? Why has the growth of individual freedom coincided with the growth of collective impotence? Bauman argues that this condition hangs on the agora - the space where private and public meet to seek the creation of 'public good', a 'just society', or 'shared values'. The problem is that little remains of (...) such old style spaces. We cannot, he argues, overcome our collective impotence without resorting to politics and using the vehicle of political agency. Three orientation points for a reconstruction of politics are suggested: the republican model of the state and of citizenship, basic income as a universal entitlement, and re-enabling the institutions of autonomous society by catching up with the controlling extraterritorial powers in an age of globalization. (shrink)

The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the OECD Convention) obligates signatory nations to make bribery of foreign public officials a criminal act on an extraterritorial basis. The purposes of this article are to describe the nature and consequences of bribery, outline the major provisions of the OECD Convention, and analyze its role in promoting transparency and accountability in international business. While the OECD Convention is not expected to totally eliminate the seeking or (...) taking of bribes, there are hopes that a uniform set of rules will curtail corrupt behavior, as long as those rules are both enforceable and enforced. (shrink)

The ‘Guiding Principles on Business and Human Rights’ (Principles) that provide guidance for the implementation of the United Nations’ ‘Protect, Respect and Remedy’ framework (Framework) will probably succeed in making human rights matters more customary in corporate management procedures. They are likely to contribute to higher levels of accountability and awareness within corporations in respect of the negative impact of business activities on human rights. However, we identify tensions between the idea that the respect of human rights is a perfect (...) moral duty for corporations and the Principle’s ‘human rights due diligence’ requirement. We argue that the effectiveness of the ‘human rights due diligence’ is in many respects dependent upon the moral commitment of corporations. The Principles leave room for an instrumental or strategic implementation of due diligence, which in some cases could result in a depreciation of the fundamental norms they seek to promote. We reveal some limits of pragmatic approaches to coping with business-related human rights abuses. As these limits become more apparent, not only does the case for further progress in international and extraterritorial human rights law become more compelling, but so too does the argument for a more forceful discussion on the moral foundations of human rights duties for corporations. (shrink)

In recent years, policymakers, academics, and practitioners have increasingly called for the development of global governance mechanisms for artificial intelligence (AI). This paper considers the prospects for these calls in light of two other geopolitical trends: digital sovereignty and digital expansionism. While calls for global AI governance promote the surrender of some state sovereignty over AI, digital sovereignty and expansionism seek to secure greater state control over digital technologies. To demystify the tensions between these trends and their potential consequences, we (...) undertake a case analysis of digital sovereignty and digital expansionism in China, the European Union, and the United States. We argue that the extraterritoriality embedded in these three actors’ policies and escalatory competitive narratives, particularly those from the US, will likely undermine substantive global AI governance cooperation. However, nascent areas of alignment or compromise, notably in data governance and technical standards, could prove fruitful starting points for building trust in multilateral fora, such as the G20 or United Nations. (shrink)

A number of hugely valuable natural resources fall outside of the borders of any nation state. We can legitimately expect political theory to make a contribution to thinking through questions about the future of these extraterritorial resources. However, the debate on the proper allocation of rights over these resources remains relatively embryonic. This paper will bring together what have often been rather scattered discussions of rights over extraterritorial resources. It will first sketch some early modern contributions to thinking through rights (...) over the ocean. It then discusses the guidance available within more contemporary contributions to debates on resources beyond the state. Finally, it concludes by emphasising the key questions with which future work on this topic must engage. (shrink)

Criticising judges : fair game or off-limits? -- Academics and judges -- Are the judges too powerful? -- Magna Carta and compensation culture -- Does judicial review undermine democracy? -- Liability of public authorities in negligence -- The shifting sands of statutory interpretation -- Time to call it a day : some reflections on finality and the law -- The globalisation of law -- Recent developments in commercial law conference -- The contribution of construction cases to the development of the (...) common law -- What is wrong with human rights? -- Human rights in an age of terrorism -- Religion and the law : some current problems -- The extraterritorial application of the European Convention on Human Rights : now on a firmer footing, but is it a sound one? -- Magna Carta--liberties, customs, and the free flow of trade -- Delay too often defeats justice -- Magna Carta and religion -- Runnymede -- Advocates as protectors of the rule of law -- Litigators--survive and thrive -- The Jackson reforms and civil justice -- Sharpening the public gaze : advances in open justice in England and Wales -- Threats to justice in the twenty-first century -- Halsey 10 years on---the decision revisited -- Arbitration versus litigation -- Arbitration after Brussels I reform -- School speech day -- How my classical education has affected my life -- Valedictory -- Changes in the law in the last 50 years. (shrink)

The present article deals with issues of social recognition in the global and transnational environment. It deals with the issue of solidarity, a form of recognition that has no adequate parallel beyond nation state borders and manifests itself mainly in the transnational economy. We focus on the articulation of the extraterritorial recognition of social rights-holders at the international and transnational levels of justice. It is clear that conditions in developing countries do not allow the people there to express disapproval in (...) ways that are typical for Western societies. We stress that states should strengthen their influence in global and transnational organizations and equally that the media should improve its informative role and should provide information on what is happening in developing parts of the world. (shrink)

Although corruption is ubiquitous, attitudes toward it differ among countries. Until the 1997 OECD Convention, the U.S. had been one of the only two countries with an explicit extraterritorial anti-bribery law, the Foreign Corrupt Practices Act (FCPA) of 1977. The FCPA employs a two-pronged approach to control the supply side of corruption: (1) anti-bribery provisions; and (2) accounting (books and record and internal controls) provisions. I offer evidence, albeit indirect, to show that the FCPA had limited success. The OECD Convention (...) adopts the same two-pronged approach, but, since it is a multilateral treaty, is likely to be more successful provided that enforcement is vigorous enough. The signatory nations effectively form a cartel to reduce the cost of doing business. As with any cartel, however, each multinational corporation has an incentive to deviate. Thus, the mutual enforcement of the agreement is crucial for its success. However, the two-pronged approach is not sufficient, since internal control does not adequately monitor decisions made at the top level. I argue that the two lessons drawn from the U.S. experience are: (1) law enforcement must be credible; and (2) internal controls alone are not sufficient. Stronger and more effective corporate governance within an appropriate regulatory framework is needed to ensure that multinational corporations conduct their business in an ethical manner. (shrink)

Polanyi's and Popper's defenses of the status quo in science are explored and criticized. According to Polanyi, science resembles a hierarchical and tradition-oriented republic and is necessarily conservative; according to Popper's political philosophy the best republic is social democratic and reformist. By either philosopher's lights science is not a model republic; yet each claims it to be so. Both authors are inconsistent in failing to apply their own ideals. Both underplay the extent to which science depends upon the wider society; (...) and neither makes sufficient allowance for the ways it can disrupt the social order. Polanyi even demands extraterritorial exemption for science from the scrutiny of incompetent outsiders. In their different ways, each minimizes the problems of institutionalized science and fails to consider the value, even the long-term necessity, for science of democratic criticism and control. Transnational control of science is an open challenge for democratic polities. (shrink)

The events of 11th September 2001 have many meanings. Although seen as a turning point in a number of historical sequences, perhaps their longest-lasting significance will prove to be that they mark the symbolic end to the era of space.. The article explores the consequences of this in terms of global space, which now becomes a new frontierland, where refugees, in a caricature of the new power elite, have come to epitomize extraterritoriality, and where floating coalitions and confluent enmities (...) are both the promoters and beneficiaries of the new global disorder. (shrink)

Globalization challenges the state-centric realist view of space and authority within International Relations. Using multifaceted concepts of territoriality and non-territoriality, this article goes into three versions of current territorial fragmentation or connectivity – deterritorialization, extraterritorialization and reterritorialization. They are to enable us to reveal the proliferation of globally relevant social and power dynamics above, below and within the state domain. At the same time, they are to illuminate the ambivalent role of states played in an era of global interconnectedness.

The last decade of the Qing dynasty and Republican period saw intensive efforts to revise the Qing Code, promulgate modern legal codes based on Japanese and German law, establish a modern system of courts, and develop a professional corps of lawyers and jurists. These institutional reforms were implemented as part of the drive to have extraterritoriality rescinded and safeguard the sovereignty of the Qing dynasty and then Republic of China. The reforms were accompanied by new categories within civil and (...) criminal law, new conceptions of legal knowledge and expertise, and rich discussions over sources of law which took place within the legal realm as well as the readership of Republican newspapers and journals. If, as Roger Berkowitz writes in his study of scientific codification in continental Europe, “in a legal system, there must be some way that the law comes to be known,” how did ways of knowing law change during this period of legal reform and broader intellectual change? Through a survey of jurisprudence textbooks and other legal publications, this paper argues that writers in early 20th-century China came to define jurisprudence in positivistic terms, ultimately using new conceptions of science and social science to identify its place within a new ordering of modern knowledge. (shrink)

Depuis 2011-2012, les milieux de migrants russes en France se mobilisent politiquement. On peut observer, d’une part, une mobilisation liée aux mouvements de protestation en Russie à la suite des élections jugées « truquées » et, d’autre part, une mobilisation encouragée par la politique de l’État russe envers « ses » émigrés. L’histoire, le passé, jouent un rôle primordial dans ces mobilisations. Du côté des autorités russes, les concepts et moments clés de l’histoire nationale sont mobilisés pour une construction consensuelle (...) qui est par la suite « imposée » aux migrants, perçus comme les messagers de la parole des autorités russes dans les pays d’accueil. Cependant, cette reconstruction historique par l’État russe se confronte à des contradictions qui sont à la fois internes au projet de l’État russe et relatives aux temporalités subjectives des migrants. Ces dernières fournissent autant de contrepoints et de formes de contestation, explicite ou non, au récit historique unifié que s’efforcent de bâtir les autorités russes. Ces temporalités subjectives se traduisent par des identifications : avec les années 1990 qui, dans le discours politique sur l’histoire russe, sont perçues comme des « années noires » ; avec une « classe sociale » qui appartient au passé ; et enfin, avec des segments spécifiques de l’histoire et de l’espace russes, loin des conceptions totalisantes forgées par le projet extraterritorial des autorités. (shrink)

In times of crisis, when democracies are under threat, our lessons of justice and equality are best learnt from those who are marginalized or oppressed. There could be hope for democracy if responses to the attacks of September 11, for example, were characterized not by blind revenge but by democratic solidarity. To think of democracy in terms of non-realized ideals does not adequately challenge the failures of its promises. ‘Not to respond’ is often a strategic necessity for democratic discourse, which (...) recognizes failure as part of its evolutionist and utopian narrative. The internal dialectic of the unrealized finds in the negative instance of failure a strange moral coherence. Thus it is proposed to consider democracy as something de-realized rather than unrealized. The term ‘de-realized’ places the democratic experience at a distance, in a context not of its making, in order to de-familiarize it and to block its natural or normative reference. The idea is to see the potential of democracy in translation or in an extraterritorial sense. Democracy’s potential lies not in its failure but in its frailty. (shrink)