In this chapter, the concept of jurisdiction as exercised by states (or regional organizations such as the European Union) is analysed. Such jurisdiction is concerned with the reach of a state's law: what link, if any, is required for a state to apply its laws to situations and persons? Jurisdiction is an aspect of a state's sovereignty, as the right to prescribe and enforce laws is an essential component of statehood. In the classic Westphalian understanding, this right has been limited to a state's territory, a limitation that at the same time ensures that no state intervenes in another state's affairs (2.1). This idea is no longer strictly applied, if it ever was. Exceptions that allow for limited extra-territorial jurisdiction have been carved out, and, moreover, the territoriality principle has been construed rather liberally (2.2). To be true, some states employ a rather strict presumption that the legislature does not normally intend to apply its laws extra-territorially, but such a presumption does not limit the discretion of the legislature to do just that if it so desires (2.3). The overlapping assertions that result from multiple states' invocation of permissive principles of jurisdiction may almost unavoidably result in international friction. This friction may be mitigated by a 'rule of reason', which instructs courts and regulators to balance the interests and connections of the case with the different states involved (2.4).
Under international law, there is no single legal body with the power to generate norms that are binding on all subjects without their consent. There is no centralized executive authority entrusted with implementation, while international adjudicating bodies have no compulsory or comprehensive jurisdiction. Apart from the absence of a centralized law-making and law-enforcement authority, most publicists insist that with the exception of jus cogens, there is no a priori hierarchy of sources under international law. This state of play is of particular relevance when one assesses the role of international adjudicating bodies as they settle disputes between states. International case law, like the writings of publicists, is not a formal source of international law but, rather, provides 'evidence' of the applicable norms in the circumstances. Decisions of the International Court of Justice (ICJ) and other international adjudicating bodies are binding only upon the parties to the dispute. Nevertheless, by taking as an example the conservation of living marine resources beyond national jurisdiction, this article attempts to demonstrate that the contribution made by the ICJ and other international tribunals to the development of international law may be more significant, especially when one considers the scenario referred to earlier. This article will examine various judgments of the ICJ and other international tribunals and assess their role and relevance in the development of the international regulation of living marine resources occurring beyond national jurisdiction. The way states interpret the freedom of access over living resources on the high seas determines the manner in which they exercise regulatory and enforcement jurisdiction over them as well as the kind of conservation measures states obligate their nationals to take when fishing in marine areas beyond national jurisdiction. Bodies adjudicating international disputes over the exploitation of living marine resources have considered various legal issues in this field of international law, the following being among the most common. First, states tend to disagree on how they interpret the legal implications of freedom of fishing and the obligation to take conservation measures as a qualification to it. The article will examine those fisheries cases that have discussed to what extent the flag state's freedom of access over living marine resources on the high seas is subject to the rights, duties, and interests of coastal states and of other flag state participants in the same fishery. Second, another contentious legal issue relates to the interpretation of the exclusive enforcement jurisdiction of the flag state and to whether international law allows other states any right to act against states that either fail to adopt conservation measures on the high seas or that choose less stringent ones than those agreed upon via international co-operation agreements. This legal question revolves around the abuse of the flag state's exclusive enforcement jurisdiction on the high seas. It affects both coastal states that have painstakingly developed a conservation plan for their exclusive economic zone (EEZ) or their exclusive fishing zone (EFZ) as well as states that are participants in the same high seas fishery and that have negotiated conservation measures via a co-operation agreement. In the first case, the coastal state expects flag states to exercise compatible conservation measures when their nationals fish on the high seas, and, in the second case, flag states, whose nationals are participating in a fishery, find it particularly frustrating and counter productive when another flag state who is not a party to the conservation agreement reached via co-operation takes no action against its fishing vessels that violate the conservation measures established in the agreement or else adopt inferior ones. Third, another question that often arises in international fisheries disputes relates to the legal status of living marine resources occurring beyond national jurisdiction and whether international law obligates all states to ensure the conservation of living marine resources on the high seas whether they are harvestable or not. The debate surrounding the legal status of these resources also questions whether the obligation to take conservation measures on the high seas is vested in the international community at large as an erga omnes obligation. The cohort of rules regulating the conservation of marine living resources on the high seas has developed on an ad hoc basis, as a reaction to the historical and political developments that have occurred throughout the centuries. As it has become more and more specialized, this branch of international law has suffered from fragmentation, which has led to ambiguity and uncertainty when states have sought to interpret and apply applicable norms. The decisions of international adjudicating bodies provide the judges with an opportunity to identify what is the position of international law from the myriad of norms that have accumulated over time. This article will attempt to examine various international cases that have discussed the position of international law in fisheries disputes. Occasionally, it will also refer to some other landmark cases that have treated an entirely different subject matter whenever the legal arguments made by the judges therein may elucidate the interpretation of applicable international norms relating to the legal questions listed earlier. ; peer-reviewed
" . an address by Kenneth W. Dam, Deputy Secretary of State, before the American Society of International Law, Washington, D.C., April 13, 1983." ; "April 15, 1983." ; Caption title. ; Mode of access: Internet.
This Article provides the first application of the emerging mixed jurisdiction jurisprudence to a comparative analysis of international law. Such a comparative law analysis is important today as the growth and increasing vitality of international juridical, administrative and legislative institutions is placing demands on international law not previously experienced. International law is unsure where to look for help in coping with these new stresses. In significant part this isolation can be attributed to a general view among international law scholars that international law is sui generis, and hence there is little to be gained from national legal systems. This Article seeks to rectify this problem by showing substantial congruence between international law and those national legal systems that may share many characteristics. The Article argues that those states that fit best with international law are those that have been classified as mixed jurisdictions. The result of this showing will be to open international law to the lessons leaned over the centuries by such mixed jurisdictions as Scotland, Louisiana, Quebec, South Africa and Israel.
As a process of raising monetary contributions from a large number of persons, crowdfunding may take many forms: from traditional benefit events and television fundraising campaigns to increasingly popular internet platform fundraising. The online environment in which the newest forms of CF emerge facilitates its unprecedented ability to cross borders and attract persons from various countries. This having been said, the same environment complicates legal assessment. The issues that inevitably arise in cross-border dealing are particularly intricate: which court decides and which law applies? At the outset, one must differentiate between various types of CF models. Furthermore, the tripartite structure of the CF model involving the specialised internet platforms adds another layer of complexity because the conflict of laws analysis demands the preliminary identification of legal relationships and their legal characterisation. Finally, there is a constant debate about whether investors may be legally characterised as consumers or not, which may significantly affect conclusions on jurisdiction and applicable law. In answering these questions, the author considers national and supranational legal instruments containing provisions on international jurisdiction and applicable law, with the focus on the EU ones. In the course of legal analysis, the interpretational principles set by the Court of Justice of the European Union will be taken into account. Since no such principle is directly related to the internet-based CF, they need to be assessed in terms of their relevancy and potential to be used as starting points in analogical reasoning. Besides drawing a clearer image about the conflict of laws issues for participants in CF, the aim of this article is also to assess the validity of some of the legal terms under which these participants join the CF process.
Over the last few decades, a global trend of extending the reach of domestic penal power can be observed, namely driven by the changing face of crime as it becomes increasingly transnational in nature. It is demonstrated in this article that the Swiss legislature has clearly followed this global trend of broadening the extraterritorial reach of domestic criminal law, most notably since the 1980s. It has acted with particular resolve in the last decade, adding jurisdictional bases to the Swiss Criminal Code by virtue of which Swiss criminal law can be applied to many instances of conduct taking place abroad. Certain offences – specified crimes against minors and female genital mutilation – have even been subjected to an absolute and unrestricted universality principle. The Swiss legislature is not indifferent to the problems that such an expansive approach to jurisdiction may create, notably in terms of conflicts of jurisdiction. Yet, the rules it adopted to temper the effects of applying Swiss criminal law to extraterritorial conduct only partially remedy the situation. This development in Swiss law begs the question whether such an expansive approach towards jurisdiction is permissible – or even encouraged or requested by international law. Hence, this article explores to what extent international law informs the reach of domestic penal power and concludes that international law is Janus-faced with regard to the question of the geographical scope of domestic criminal law. While some of its rules push for long-arm jurisdiction, others put limits on the domestic legislature's endeavour to expand the reach of its domestic criminal law. In light of this, the idea of adopting, on an international level, general principles governing the definition of the scope of domestic prescriptive and adjudicative jurisdiction for transnational cases is tempting, albeit difficult to realize.
Over the last few decades, a global trend of extending the reach of domestic penal power can be observed, namely driven by the changing face of crime as it becomes increasingly transnational in nature. It is demonstrated in this article that the Swiss legislature has clearly followed this global trend of broadening the extraterritorial reach of domestic criminal law, most notably since the 1980s. It has acted with particular resolve in the last decade, adding jurisdictional bases to the Swiss Criminal Code by virtue of which Swiss criminal law can be applied to many instances of conduct taking place abroad. Certain offences – specified crimes against minors and female genital mutilation – have even been subjected to an absolute and unrestricted universality principle. The Swiss legislature is not indifferent to the problems that such an expansive approach to jurisdiction may create, notably in terms of conflicts of jurisdiction. Yet, the rules it adopted to temper the effects of applying Swiss criminal law to extraterritorial conduct only partially remedy the situation. This development in Swiss law begs the question whether such an expansive approach towards jurisdiction is permissible – or even encouraged or requested by international law. Hence, this article explores to what extent international law informs the reach of domestic penal power and concludes that international law is Janus-faced with regard to the question of the geographical scope of domestic criminal law. While some of its rules push for long-arm jurisdiction, others put limits on the domestic legislature's endeavour to expand the reach of its domestic criminal law. In light of this, the idea of adopting, on an international level, general principles governing the definition of the scope of domestic prescriptive and adjudicative jurisdiction for transnational cases is tempting, albeit difficult to realize.
Due to the increase in the number of cross-border disputes in arbitration in recent years, the process of ADR and ODR has become international. International commercial arbitration has become a system of private transnational dispute resolution, consisting of multilateral conventions, bilateral agreements, national arbitration rules and principles and rules for resolving private informal disputes. In the 1920s, new legislation regulating international commercial arbitration emerged, and in 1958, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, known as the New York Convention, was adopted. This was followed by the United Nations Commission on International Trade Law of 1976 on Arbitration Rules and the United Nations Commission on International Trade Law on International Commercial Arbitration of 1985 on International Trade Arbitration. The arbitration process was harmonized on the basis of the Model Law.
An everlasting debate in the federal courts field is which branch of the federal government has the power to control federal jurisdiction. While some commentators and judges assert that the judiciary has the implicit authority to refine the boundaries of its jurisdiction, others argue that Article III vests that authority with Congress only and judicial modification of jurisdiction is illegitimate. In focusing almost entirely on the constitutional legitimacy of the question, this debate has overlooked an important consideration: Even if the judiciary may legitimately wield discretion in setting its jurisdiction, is such discretion functionally appropriate? This Article argues that such discretion is not always appropriate. Relying on an empirical analysis of two decades of cases in one area of federal jurisdiction-hybrid law jurisdiction-the Article demonstrates that some jurisdictional questions are better resolved by simple, bright-line rules. Drawing on extensive scholarship studying rules and standards-which until now has not yet been applied in this field-the Article concludes that the particular (and often misunderstood) nature of hybrid law cases calls for a rule rather than a standard. This conclusion, while limited to the field of hybrid law jurisdiction, nonetheless suggests that the debate over judicial discretion in jurisdictional questions is too narrow. Only by considering functionality as well as legitimacy can the proper jurisdictional directives be formulated.
I think in approaching the subject of Jurisdiction it is pertinent to note that anyone exercising authority of the United States Government is from time to time necessarily concerned with problems of jurisdiction.
Considers (86) S. Res. 94. ; Considers S. Res. 94, to require U.S., in effect, to accept jurisdiction of International Court of Justice in legal matters involving breach of treaty or international obligations and questions of international law. ; Record is based on bibliographic data in CIS US Congressional Committee Hearings Index. Reuse except for individual research requires license from Congressional Information Service, Inc. ; Indexed in CIS US Congressional Committee Hearings Index Part VII ; Considers (86) S. Res. 94. ; Considers S. Res. 94, to require U.S., in effect, to accept jurisdiction of International Court of Justice in legal matters involving breach of treaty or international obligations and questions of international law. ; Mode of access: Internet.
The dissertation explores the politics of jurisdiction in international law. In order to do so, it reconstructs jurisdictional projects pursued by scholars and experts particularly in the context of 'humanity's law'. The thesis concentrates on (legal) technicalities and argues for the importance to 'open black boxes' such as interdisciplinarity, expertise – or jurisdiction. In a first part, it primarily focuses on the (inter)disciplinary dimension of studying the politics of international law by mapping different interdisciplinary projects between International Relations and International Law, and highlighting core topics among critical scholars in both disciplines. In a second part, the dissertation moves then to analyse the concept of jurisdiction in world politics. It situates discussions about jurisdiction within the discourse on the politics of international legal expertise and argues, by means of problematization and historical inquiry, to leave the common notion of jurisdiction in international law (as exclusive and territorial) behind and instead to grasp jurisdiction as non-territorial, post-Cartesian, multidimensional and non-exclusive. This becomes particularly visible in the context of 'humanity's law'. Therefore, the dissertation ends with two explorations into the politics of jurisdiction in 'humanity's law': first, it analyses the politics of crimes in international criminal law and how by means of widening the scope of international crimes international legal experts attempt to augment this strand of 'humanity's law'; second, it explores how in the broader discourse on humanitarian intervention within and around the United Nations jurisdictional projects expand, through risk-based forms of governance, through time.
I. Introductory. II. Considerations related to the incorporation of international human rights law in domestic jurisdictions: 1. Monists systems v. dualist systems. 2. Capacity to commit a State in the international sphere. Legislative power v. Executive power. 3. Problems connected with the self-executing character of international human rights norms. 4. Hierarchy position of international treaties in domestic jurisdictions. 5. Universal Jurisdiction. III. The development of enforcement mechanisms by the international institutions specialized in human rights. IV. Conclusions. Bibliography. ; Los sistemas de incorporación del Derecho internacional en las legislaciones internas, así como la ejecutabilidad de las resoluciones internacionales, constituyen los elementos esenciales que regulan el grado de cumplimiento del Derecho internacional de los derechos humanos. En este sentido, las relaciones internacionales están controlando el funcionamiento de estos mecanismos convirtiendo estas normas en una herramienta de prueba de acciones adoptadas como resultados de consideraciones de política exterior. Esta tendencia puede ser apreciada en diferentes aspectos. Por un lado, las diferencias entre sistemas monistas y dualistas están desapareciendo. Por otro lado, diversas enmiendas constitucionales y legales han sido promulgadas con el propósito de evitar el cumplimiento de otros compromisos internacionales. Además, la mayoría de las Constituciones no clarifican el estatus de las normas jus cogens de carácter consuetudinario y el criterio que debe prevalecer en caso de que diversas instituciones internacionales mantengan diferencias relativas a un derecho fundamental. ; The incorporation of international law in domestic jurisdictions and the enforceability of international resolutions constitute the key elements that regulate the degree of fulfilment of International Human Rights Law. In this sense, international relations are controlling the operation of these mechanisms converting these norms in an evidence tool of ...
Territory is central to the doctrine of international jurisdiction. However, the use of territory as the jurisdictional linchpin is a political choice, the result of a confluence of historically specific political, material, epistemic, and above all mapping practices. The political contingency of territory begs the question whether alternative, non-territorial jurisdictional concepts could be contemplated. In this contribution, community, temporality, and justice are explored. The territorial imbrications of these jurisdictional alternatives are acknowledged, but it is highlighted how territory can in fact be re-conceptualized in the service of 'its others'. Opting for the 'others' and for a novel conceptualization of territory remains a political choice. However, the political character of jurisdiction is not something to lament, but rather to celebrate, as it creates opportunities for a variety of political actors to have an impact on the actual appli- cation and construction of the un(der)determined notions of jurisdiction and territory, and ultimately on the modes of exercise of public authority. The salience of these theoretical ideas is exemplified by applying them to the case of transnational human rights litigation against corporations, a manifestation of socio-legal globalization that encapsulates the key role played by jurisdiction in negotiating claims of authority.
