1. Introduction
The concept of jurisdiction is a relatively undertheorized category of international law.Footnote 1 Mainstream international law scholarship (MILS) advances an ahistorical and asocial explanation of the doctrine, rules and practices of jurisdiction in international law.Footnote 2 Its discussion involves ‘a fairly ritualized account of the standard ‘heads’ of jurisdiction, principally based on territoriality and nationality …’.Footnote 3 There is insufficient acknowledgment that jurisdiction is a ‘multivalent concept’ and that ‘it sits at the intersections of political and legal theory, technical doctrine, sovereignty studies, and critical social theory’.Footnote 4 Insofar as critical international law scholarship is concerned a beginning has been made but it is yet to gather significant mass and depth.Footnote 5
This article seeks to offer, from a third world approaches to international law (TWAIL) perspective, a distinct account of the meaning, history, rules, and implications of international law of jurisdiction. Footnote 6 The purpose of the article is not to give a positivist account of the rules of jurisdiction or extraterritorial jurisdiction. Instead, it advances the following arguments: that MILS overlooks the fact that jurisdiction is a complex social and political concept and its doctrine, rules and practices can have significant class, gender, race and caste effects; that there is an intimate relationship between the rules and practices of jurisdiction and the historical evolution and development of capitalism and the phenomenon of imperialism; that the historical exercise of extraterritorial jurisdiction by advanced capitalist states in its different forms is not an atypical exception to the general principle of territoriality; and that the justification for the use of extraterritorial jurisdiction rooted in the idea of liberal internationalism allows advanced capitalist states to pursue a neo-colonial agenda. In its place TWAIL proposes the principle of subaltern internationalism as it has the potential to address the concerns of subaltern groups and states. Since the aim of the article is to offer an alternative way of thinking about the historical evolution of international law of jurisdiction, and to suggest a new line of research by linking it to the phenomenon of universalizing capitalism, a degree of linearity and generalization is inevitable. The objective is to abstract from complex developments that have taken place over centuries to underscore a broad trend in history in order to open up space for unorthodox analyses of international law of jurisdiction.Footnote 7
The article proceeds as follows: Section 2 contends that since MILS does not engage with the social and political dimensions of the doctrine, rules and practices of jurisdiction, or problematize the foundational concept of ‘territory’, it fails to delineate the material realities that inform and flow from the exercise of jurisdiction. It is thus hardly noticed for instance that the rules and practices of jurisdiction facilitate imperialism or can reinforce internal and international class, gender, race and caste divides.
Section 3 argues that a crucial reason why MILS fails to understand multivalent aspects of the doctrine, rules, and practices of jurisdiction is the absence of genealogical analysis. Among other things, it fails to appreciate the deep links between the emergence of the modern state, the development of capitalism and the international law of jurisdiction. While a range of factors contributed to the emergence of the modern state in Europe, and the accompanying territorial doctrine of jurisdiction, the advent of capitalism provided a critical impulse. A significant factor in the period of transition from feudalism to capitalism was the emerging bourgeoisie in Europe which needed to overcome the hurdles to its growth posed by excessively fragmented territories and laws. While the history of that transition is an intricate story involving class struggle between receding and rising social forces and their interaction with evolving political and legal structures in different territorial entities, there is sufficient evidence to support the hypothesis that mercantile capitalism, and later industrial capitalism, encouraged consolidation of legal spaces.Footnote 8 Once capitalism became the dominant mode of production in nineteenth century Europe, the rules and practices of jurisdiction were framed to facilitate its expansion abroad. The essential argument advanced is that the rules of extraterritorial jurisdiction were framed to address the tension between the universal thrust of capitalism (the ‘logic of capitalism’) and the existence of separate political entities in non-European spaces (the ‘logic of territory’).
Section 4 offers an illustrative sketch of the history of the exercise of extraterritorial jurisdiction in the colonial and postcolonial eras to show how a principal manifestation of universalizing capitalism was and is the exercise of extraterritorial jurisdiction to harmonize laws across geographical spaces. This objective was achieved in the case of colonies by legislation, treaties with local rulers, the activities of chartered companies, and some forms of consular practices, and in the instance of semi-colonies (or what are also termed the ‘semi-periphery’ or ‘semi-civilized’ states) through capitulation agreements. The section focuses on capitulation agreements, not with a view to narrate or document the complex and contested nature of the historical record in each semi-colonial jurisdiction, but to show that a principal goal of these agreements was harmonization of laws in non-capitalist spaces with those in so called civilized capitalist states. In the postcolonial era the process of harmonization of legal rules and institutions continued but was now achieved through a multifaceted and multidimensional strategy that includes the ‘direct’ exercise of extraterritorial legislation.
Section 5 contends that existing international law of jurisdiction cannot promote the interests of weak groups and states. The proposal to reform it from the standpoint of liberal internationalism may only go to further a neo-colonial agenda, as is the case with Ryngaert’s ‘new theory of jurisdiction’ which calls upon the state to act as an agent of the international community to promote global common good. Instead, a principle of subaltern internationalism is proposed that is best suited to promote the interests of marginalized groups and states. The principle requires that the limits of the exercise of extraterritorial jurisdiction be so determined as to enhance, above all, the legal and policy space of developing nations, giving substance to the principle of self-determination. The section goes on to identify the bare theoretical and policy elements that may inform and flow from the principle of subaltern internationalism.
Section 6 offers some final remarks.
2. The concept and doctrine of jurisdiction: Legal, social and political dimensions
It is generally agreed that jurisdiction ‘is an aspect of sovereignty and refers to judicial, legislative, and administrative competence’ whose exercise is regulated by public international law.Footnote 9 It means that the jurisdiction of a sovereign state is determined at three levels: prescriptive, adjudicatory, and enforcement.Footnote 10 The territorial principle is at the heart of the rules of jurisdiction. A sovereign state has the right to exercise jurisdiction over persons, property, and events on its territory. The nationality principle is the other significant principle. It allows, for example, jurisdiction over an offender even when a criminal act takes place abroad. Together, the territorial and nationality principles have given rise to other bases for exercising jurisdiction such as the contested passive personality principle which allows jurisdiction to be exercised on the basis of the nationality of the victim.Footnote 11 Besides, there is the protective principle which is said to permit a state to exercise jurisdiction over crimes committed by foreign nationals outside its territory if these threaten the states’ vital interests. However, there is no consensus over the meaning and scope of the protective principle in doctrine or state practice.Footnote 12 The general rationale of these bases of jurisdiction is a certain connection with the state exercising jurisdiction. Where there are connections with more than one state it can be the subject of conflicting claims. The validity of a claim will then rest on the quality and thickness of the connections.Footnote 13 Over and beyond, there is the concept of universal jurisdiction which ‘allows any nation to prosecute offenders for certain crimes even when the prosecuting nation lacks a traditional nexus with either the crime, the alleged offender, or the victim’; its contours and limits continue to be debated.Footnote 14
In examining and analysing these different bases of exercising jurisdiction what is not sufficiently appreciated by MILS is that while jurisdiction is a legal doctrine it also has critical social and political dimensions. In order to grasp the implications of the different aspects of the doctrine of jurisdiction it is important to note the significant set of claims that a modern state makes. These include a right within the borders of the state to determine the system of governance, have the authority to exercise control over land and natural resources, regulate commerce and investment, define citizens and aliens, levy taxes, adopt civil and criminal justice systems, and regulate movement into and out of state territory.Footnote 15 A review of these prerogatives shows that the exercise of legislative, adjudicative and enforcement jurisdiction allows a state to regulate essential social and political relations in society. But the general rules for the exercise of jurisdiction advanced by MILS abstract from the social and political realities that both underlie and flow from them. As Ford points out, ‘the space of a jurisdiction is conceived of independently of any specific attribute of that space’.Footnote 16 A positivist-formalist narrative of jurisdiction portrays its exercise as being, unless otherwise intended, relatively neutral towards groups and communities.Footnote 17 Such a view ignores the fact that the exercise of jurisdiction takes place amidst pre-existing social and political divides in society.Footnote 18 In the event a state can through the exercise of jurisdiction either strengthen or weaken prevailing social and political relations that can be captured using categories such as class, gender, race, and caste. Thus, for example, as Ford points out, ‘South African apartheid was unique in its comprehensiveness, its ruthlessness and the sophistication of its jurisdictional strategy’.Footnote 19 A state can equally sustain the institution of patriarchy through the promulgation of jurisdictional rules. To put it differently, as Addis explains, ‘to prescribe or adopt jurisdictional rules is to assert that, for this purpose, a particular entity is deemed to be a community of interest, or “a community of principle”’.Footnote 20 It is thus by relying on territorial and nationality principles of jurisdiction, that states naturalize the categories of nationals and aliens. But if it could be demonstrated that the incidence of the exercise of extraterritorial jurisdiction by a state is of equal salience as territorial jurisdiction, it may destabilize the relationship between territory, nationals, and aliens. In short, ‘jurisdictional boundaries [may] help to promote and legitimate social injustice, illegitimate hierarchy and economic inequality’ and play ‘an important role in shaping our social and political world and our social and political selves’.Footnote 21 To be sure, rules of jurisdiction are not the principal reason why there is inequality or injustice in society, but these are often implicated in their production and reproduction. It is only the methodological inability of MILS to integrate the insights of social sciences and give sufficient weigh to the differential social and power relations in society that allow the description of jurisdictional rules in relatively neutral legal language.Footnote 22
In the same manner as the exercise of jurisdiction can lead to the formation or strengthening of particular domestic communities, its exercise can also help constitute and promote the interests of certain communities on the international plane. As Addis points out:
a community is not a mere collection of individuals occupying a space or a territory. What transforms a collection of individuals (or other actors) into a community is that those individuals [or other actors] are tied by a network of interest, values and expectations.Footnote 23
Through the exercise of jurisdiction, a state or states can produce or reproduce transnational communities by advancing the interests, values and expectations of particular actors. Thus, for instance, by privileging the interests etc of the transnational fraction of the capitalist class in the process of exercising jurisdiction, states can contribute to the constitution of a transnational capitalist class (TCC).Footnote 24 In sum, the exercise of jurisdiction by a state takes place amidst race, gender, class, and caste divides and struggles that can be displaced, weakened or strengthened both on the domestic and international planes.
2.1 Social and political meaning of territory
In order to further clarify the meaning and implications of the rules of jurisdiction it may help to problematize the concept of ‘territory’ as it is fundamental to their framing and articulation. The following reasons among others underscore the need for such an exercise. First, there is a growing view in the international community that the legitimate exercise of territorial jurisdiction by a sovereign state is linked to the existence of a democratic system of governance; the connection between ‘territory’ and ‘democratic mode of governance’ diminishes the independent significance of the former as a basis for exercising jurisdiction, whether territorial or extraterritorial.Footnote 25 Second, a critical review of the concept of ‘territory’ allows a focus on the relationship between power and the exercise of territorial jurisdiction. It facilitates the insight that the economic and cultural territory of powerful nations extends far beyond their physical territory with a significant bearing on the right of self-determination of weak nations. Third, a critical examination of the concept of ‘territory’ helps to show that there is no internal relationship with the concept of jurisdiction. Therefore, jurisdiction can be exercised by actors without territory. Thus, for instance, multi-national companies (MNCs) arguably exercise jurisdiction in the universe of private transactions.Footnote 26
It is therefore not surprising that the concept of ‘territory’ is coming to be closely interrogated by social scientists. Hitherto, as Brenner points out, ‘territoriality has been treated within mainstream social science as a relatively fixed, unproblematic, and inconsequential property of statehood’.Footnote 27 But there is growing awareness that territory and territoriality are as much physical or natural phenomenon as social. There is therefore a need to avoid, to borrow a phrase from Jessop, Brenner and Jones, ‘methodological territorialism’, that is, equating territory with a discrete geographical space.Footnote 28 It is more insightful to think of territory as a social institution that is mutable and produced and reproduced over time through a set of cultural, social, and political practices.Footnote 29 Thus, for instance, ‘territory’ can be productively defined on the internal plane as the ensemble of social relations that constitute a particular social formation and on the external plane as a facet and segment of global social relations or ‘the ensemble of relations that humans maintain with exteriority and alterity’.Footnote 30 In this view ‘territories can be explained as the outcome of a complex, heterogeneous composition (an assemblage) including legal, political and economic dimensions’ at both internal and international planes.Footnote 31 It points to the need for ‘a territorology of law’ in the field of law and legal relations.Footnote 32
If ‘a territorology of law’ is to be produced, the genealogy of the concepts of territory and jurisdiction call for attention. A genealogy of the two concepts helps for instance to remind that the territorial principle has not always been the basis on which political entities have exercised jurisdiction. Historically speaking, ‘personality rather than territoriality was the basic principle of jurisdictional order’.Footnote 33 Elden writes that ‘territory emerges in Western thought relatively late as a concept, not taking on a recognisably modern sense until the late middle ages, and not appearing as a central theme in political theory until the seventeenth century’.Footnote 34 Bodin in his well-known sixteenth century work on ‘sovereignty’ did not pay any attention to ‘territory’, not even mentioning it.Footnote 35 As Benton observes:
Bodin did not omit territory as a category through some oversight. His view was consistent with an early modern construction of sovereignty as spatially elastic. Because subjects could be located anywhere, and the tie between the sovereign and subject was defined as a legal relationship, legal authority was not bound territorially.Footnote 36
Further, as Khan reminds us in the context of Europe:
[I]t was only in the late 19th century that the existence of a territorial basis took centre stage in the perception of statehood. Indeed, as far as the spatial element as a condition sine qua non for statehood is concerned, Georg Jellinek’s seminal ‘three-element theory’ (territory, population, ultimate ruling power) and other similar definitions from that period find no equivalent in 17th- and 18th-century post-Westphalian writings.Footnote 37
In order to appreciate the reason for the absence of territorial principle of jurisdiction, the relationship between the emergence of capitalism, the formation of modern state, and the principle of territorial jurisdiction have to be traced, a theme dealt with in Section 3.
In contemporary social sciences it is critical geographers who have pointed to the relationship of capitalism with territory. Thus, for instance, considering and interpreting Lefebvre’s reflections on the subject, Brenner and Elden draw attention to how ‘state, space and territory’ are ‘at once a medium, and an outcome of capitalism’.Footnote 38 They have also noted the important role of the state in reproduction of capitalist relations of production and what may be called ‘capitalist territory’. In the words of Brenner and Elden, ‘territory is always being produced and reproduced by the actions of the state and through political struggles over the latter’.Footnote 39 It implies among other things that the rules of jurisdiction under capitalism are shaped by the interests of dominant social forces that are challenged from time to time by subaltern groups. The struggles of these groups often pertain to the domain of private property rights which are central to the functioning of capitalism and modern states ‘… have an obligation to exercise their (putative) territorial powers consistently with the respect for private property’.Footnote 40 In other words, the deep historical links posited between the capitalist state and the protection of private property rights impacts the nature and character of jurisdiction exercised by it in the domestic and international arenas.Footnote 41 Be that as it may, the fact that there is an inextricable relationship between the protection of property rights and the exercise of territorial jurisdiction reveals the umbilical cord between the modern state, capitalism, and imperialism. To be sure, in the abstract, ‘… jurisdictional rights conceptually precede property rights since the state typically defines the kind of property relations that are legal in the state: they define the rules surrounding acquisition, transfer and the like’.Footnote 42 But in historical terms the two are mutually constitutive, so much so that the bourgeois state – in its varied and unfinished incarnations over time – is deemed the only form of legitimate state.
It is no accident that social scientists have come to make a distinction between different types of territory: physical, legal, cultural, and economic territory. The boundaries of non-physical territories are not limited by corporeal boundaries but determined by power, calling for a relational concept of territory. To put it differently, the concept of legal, cultural and economic territory under capitalism is distinct from physical or land territory which ‘… [is] the part of the earth’s surface that is not covered by water …’.Footnote 43 In fact, even ‘physical’ territory can contract or expand depending on legal regimes regulating global spaces such as has been adopted for the oceans and outer space respectively. But cultural, economic and legal territory can extend as far as the reach of power, and can give rise to the practice of cultural, economic and legal imperialism.Footnote 44 The era of hyper globalization has produced further changes to the notion of territory. Sassen, for instance, points out that in this phase ‘territory, as an analytic category, cannot be confined to its national instantiation’ as globalization ‘deborders territoriality’.Footnote 45
Since physical and legal (or cultural or economic) territories are conceptually and operationally distinct, it is possible to conceive of the exercise of ‘jurisdiction without territory’. Historically, the category of ‘jurisdiction without territory’ has had three manifestations all of which have a presence today in one form or another. These are firstly, the direct exercise of extraterritorial jurisdiction by a state exemplified by the capitulation or consular regimes in semi-colonies. It gave rise to a model of an informal empire in which territorial jurisdiction was defined to exclude local jurisdiction over individuals and commerce of imperial western powers.Footnote 46 In contemporary times the informal empire can be seen working for example in the State of Forces Agreement signed by the US to protect its armed forces personnel or a civilian component of it.Footnote 47 Secondly, there can be the exercise of ‘jurisdiction’ by private firms, historically exercised by chartered companies such as the British East India Company.Footnote 48 Today, MNCs exercise jurisdiction by using their power to construct a transnational non-state governance system in which they enjoy authority.Footnote 49 Thirdly, there is ‘jurisdiction without territory’ exercised by the international community through international organizations. The Mandate System of the League of Nations was an example of the exercise of jurisdiction sans territory. In contemporary times it has inter alia assumed the form of International Territorial Administration (ITA).Footnote 50 To put it differently, in thinking about jurisdiction there is a need to avoid the ‘territorial trap’.Footnote 51
In sum, jurisdiction is a profoundly social and political concept. But it is given a relatively technical and neutral colour and meaning by MILS to derive rules for the exercise of state jurisdiction. However, what are seemingly neutral rules turn out to be partisan rules when these play out in internal and international relations. In order to understand this, international lawyers need to deconstruct the concepts of ‘territory’ and ‘jurisdiction’.
2.2 A further word on demystifying extraterritorial jurisdiction
A few more words may be said in this regard on the concept of ‘extraterritorial jurisdiction’. According to MILS, the exercise of extraterritorial jurisdiction implies ‘an excess of jurisdictional reach’ and is therefore justified only in exceptional cases.Footnote 52 Its exercise is in general acceptable in the instance of prescriptive and adjudicatory jurisdiction but objectionable in the case of enforcement jurisdiction as it requires active intervention in a third state. But even in the instance of prescriptive and adjudicatory exercise of extraterritorial jurisdiction differences can arise depending on the interpretation given to the traditional grounds for exercising jurisdiction, i.e., the territorial, personal, protective, and universal principles. But in reality, it is a dynamic social institution which is produced and reproduced through a set of social, cultural, and political practices and strategies embedded in particular social formations and the differential power of states.Footnote 53 The conclusion may be drawn that ‘“territoriality” and “extraterritoriality” … are legal constructs. They are claims of authority, or of resistance to authority, that are made by particular actors with particular substantive interests to promote’.Footnote 54
A telling of the history of the exercise of extraterritorial jurisdiction requires that the narrative be rooted in what Subrahmanyam calls ‘connected histories’ between advanced capitalist nations and other nations.Footnote 55 But given the primary focus of MILS on the national rather than the imperial state, the history and relevance of colonial and neo-colonial eras to the development of international law of jurisdiction has been somewhat ignored; even when for instance colonialism is condemned, its bearings on the doctrines of jurisdiction are not adequately recognized.Footnote 56 As a result, it is overlooked that since many of the first modern states were imperial states the exercise of extraterritorial jurisdiction was seen as a natural extension of the rules of territorial jurisdiction. The accompanying episodes of the exercise of extraterritorial jurisdiction are rendered invisible by MILS through the use of ahistorical and reified concepts of territory and jurisdiction. The aim may be to formulate parsimonious rules that are easy to apply, but the move has concealed the widespread exercise of extraterritorial jurisdiction over time. While even the mainstream rendering and understanding of the rules of extraterritorial jurisdiction has social and economic consequences for weak nations, their real significance and impact have been grossly underestimated.
The first time imperial states exercised jurisdiction without the presence of colonial or semi-colonial territories was in the postcolonial era. In order to cope with the new situation, i.e., the emergence of independent sovereign states, a different set of means were adopted for the exercise of extraterritorial jurisdiction and the harmonization of laws. The impulse for the exercise of extraterritorial jurisdiction remained the same as in the colonial era: resolving the tension or mismatch between the logic of capital and the logic of territory. While capital is extraterritorial by nature the logic of territory limits legal sovereignty and jurisdiction to a physical space. The postcolonial situation therefore necessitated a set of fresh strategies that ensured suitable legal conditions for universalizing capital which requires larger geographical spaces with harmonized laws for effective operation. The effort of the capitalist states in this direction over time has meant legal imperialism.
3. Development of capitalism, modern state and doctrine of jurisdiction
If MILS does not explore the social and political aspects of the concept of jurisdiction, or appreciate the social forces that underlie the exercise of extraterritorial jurisdiction it is at least in part because of the failure to undertake a genealogical analysis of the origins of the modern state. Such an exercise would have revealed the deep connection of the emergence of modern state in Europe with the evolution and development of capitalism and imperialism and the international law of jurisdiction. Instead, MILS satisfied itself with adopting a positivist notion of a state first articulated by German jurist Jellinek and embodied in the Montevideo Convention on the Rights and Duties of States, 1933.Footnote 57
The role of capitalism in the creation of the modern state (and concomitant rules of jurisdiction) can inter alia be traced to the needs of an emergent bourgeoisie for larger geographical spaces or territorial entities in which common legal standards applied. The factors that shaped these developments began to emerge in the early modern era (1400–1600) when the merchant class felt the need for consolidated legal spaces in the face of nearly five hundred ‘autonomous political entities’ (reduced to 25 by 1900) with multiplicity of customs, laws, and institutions, often in conflict with each other.Footnote 58 Teschke speaks ‘of many territorially disjointed, non-contiguous and institutionally heterogeneous dominions that were held together mainly by the property titles of their ruling dynasts’.Footnote 59 Indeed, ‘early modern territoriality was characterized by the continuous divisions, unification and re-division of territories’.Footnote 60 It is in this period that lex mercatoria emerged, albeit slowly and in specific areas, to inter alia deal with the problem of fragmentation of jurisdictions.Footnote 61 Even Kadens, who is otherwise sceptical of the idea of lex mercatoria emerging in the medieval period, admits that ‘what the late medieval and early modern commercial manuals’ show ‘is that certain commercial practices and techniques—such as the use of bills of exchange, partnership mechanisms to limit liability, insurance, fractional reserve banking, and creditor collective action bankruptcy—did eventually spread across Europe’.Footnote 62 However, by the end of the sixteenth century, as the modern state began to evolve, ‘the private commercial law of the nation state and the state’s law courts had reduced the significance and scope of the Law Merchant, while never quite replacing it’.Footnote 63 The emergence of the absolutist state, such as in France in the seventeenth and eighteenth centuries, and later the unification of Germany and Italy in the nineteenth century, saw ‘national legal regimes govern … transnational commercial activity’.Footnote 64 In the instance of France, Anderson has noted that ‘… mercantilism undoubtedly demanded the suppression of particularistic barriers to trade within the national realm, and [the absolutist state] strove to create a unified domestic market for commodity production’.Footnote 65 In other words, the emerging capitalist mode of production had generated an impulse to unify laws and legal institutions in new territorial and political formations that were modern nation-states.Footnote 66
It is of course reductionist to suggest that the logic of capital was the most crucial factor in the emergence of the modern state.Footnote 67 The process of unification of particular territories presided over by a modern state was determined by many factors such as the science of cartography, linguistic continuities, power and competition between states, need for military preparation, growing urban spaces and markets, and new ideologies such as nationalism. But the drive for unified territorial spaces, which was a complex and long drawn historical process of changing commercial realities and class struggle straddling three to four centuries, was also driven by the emergence and interests of first of mercantile capitalism, and later industrial capitalism, that required the harmonization of laws and legal institutions over a larger territorial complex to work its magic.Footnote 68 To be sure, the movement from merchant and agrarian capitalism to industrial capitalism, including the relationship between them, and the different trajectories it assumed in different European territories is the subject of continuing debate.Footnote 69 Equally, the fact that territorial unification assumed different histories in different lands, or what Teschke terms the ‘variable capitalist strategies of spatialization’.Footnote 70 Thus, for instance, in the case of France and other absolutist monarchies there was, as Morton points out, ‘the recourse to war as a means of “political accumulation” that translated into state-constitutive and state-building wars … bound up with the domestic class structures of pre-capitalist polities linked to absolutism’.Footnote 71 But it can be said that:
Although capitalism did not give rise to the nation state, and the nation state did not give rise to capitalism, the social transformations that brought about capitalism, with its characteristic separation of economic and political spheres, were the same ones that brought the nation state to maturity.Footnote 72
As Wood (quoted above) goes on to observe:
Just as the separation of the “political” and the “economic” in capitalism ended the contestation of sovereignty among competing sites of extra economic power, so it helped to fix the state’s territorial borders by detaching them from the fluctuating fortunes of personal property and dynastic connections.Footnote 73
Likewise, offering a ‘non-reductionist, non-teleological and non-structuralist character of the course of history’Footnote 74 Teschke observes:
Political, geopolitical, technological, ideological and military aspects of society cannot be mechanically reduced to some economic imperatives, but neither can they be dissociated from the ways in which societies organize their collective social metabolism with nature and develop strategies of reproduction in order to defend and advance their modes of existence.Footnote 75
Indeed, there is a rich and complex debate even in the Marxist tradition on the transition from a feudal to a capitalist mode of production in Europe.Footnote 76 Its details need not detain us here. What is of note is that under capitalism surplus is generated in a manner distinct from that under feudalism which relies on the use of extra economic coercion (i.e., direct coercion using military, judicial and political power). On the other hand, capitalism depends on the institution of market to generate surplus value which has at its foundation the historical fact of labour power turning into a commodityFootnote 77 . The reliance on the market led to the relative separation of the economic and political spheres in society and the state.Footnote 78 A political consequence of the emergence of the capitalist mode of production was that territorial boundaries did not vary with group loyalties owed to the ruler that was spread over disconnected geographical spaces.Footnote 79 The function of the state also came to be transformed from that of using extra economic coercion to gather rent and tax to creating appropriate commercial and economic conditions that ranged from establishing banks to the creation of consolidated legal spaces.
In sum, the significant role of capitalist mode of production in the creation of the modern state cannot be underestimated. In the words of Grewe, ‘… the specific linkage of the modern State with the economic system of capitalism was of critical importance’.Footnote 80 Noting that ‘leading social and economic historians and analysts such as Max Weber, Alfred Weber, Werner Sombart and Josef Schumpeter started from the assumption that the beginnings of the economic age of early capitalism lay at the end of the fifteenth and the beginning of the sixteenth centuries’.Footnote 81 Grewe goes on to conclude (and I quote at length):
… the essential element in this development was the mutual penetration and reciprocal promotion which occurred in the relationship between the modern State and the capitalist economy. Only the modern State was capable of producing the organizational efficacy which was the prerequisite for the expansion of the capitalist system. Only it was capable of sustaining the orderly monetary and credit systems as well as the large, unified and securely guarded territories with developed infrastructures for transporting the merchandise, information and money which provided the political and economic pressure necessary for the opening and capitalist exploitation of the colonial world. On the other hand, the modern State gained a good deal of its powers of expansion through the increase in general prosperity which resulted from these economic developments, either in the form of increased tax revenue or through direct participation in public monopolies. As a result, it is clear that the incorporation of capitalist energies into the power base of the modern State was of crucial importance for the concentrated, dynamic force which is integral to this system.Footnote 82
As industrial capitalism came to be established in Europe it looked to expand beyond the nation state to sustain and expand the capital accumulation process. Such a move required the creation of facilitative legal conditions. The big picture or hypothesis is simple: at first the concerns and interests of the merchant class and later the industrial bourgeoisie stimulated the unification of national legal spaces in Europe. The logic of capital was thereafter extended to non-capitalist spaces through the colonial project. But MILS does not sufficiently appreciate the critical role imperialism has played in the construction of doctrines of international law, including that of jurisdiction; it does not integrate the genealogies of imperialism and doctrines of international law.
The role of imperialism in the development of capitalism can be narrated in at least two phases. In the first phase, that is, in the fifteenth and sixteenth centuries wealth (in material and human form) plundered from outside Europe entered metropolitan countries to be turned into capital (what Marx termed the ‘primitive accumulation of capital’):
The discovery of gold and silver in America, the extirpacion, enslavement and entombment in mines of the aboriginal population, the beginning of the conquest and looting of the East Indies, the turning of Africa into a warren for the commercial hunting of black-skins, signalized the rosy dawn of the era of capitalist production.Footnote 83
In this period the establishment of the capitalist order in Europe received impetus from the colonial system. The plunder of colonies contributed to the construction of the modern state in the seventeenth and eighteenth centuries by bolstering its capacity to finance the military and wars and colonial adventures.Footnote 84 However, it is only in the second phase, that is, once capitalism had established itself after the industrial revolution in the second half of the nineteenth century that conscious effort was made to implant European laws in semi-colonies and colonies to facilitate the universalizing thrust of capital. This effort was not one sided as the need for harmonized legal spaces impacted in turn the nature and practices of European states. As Benton observes, ‘recent studies have emphasized the close kinship between European state formation and the political structuring of empires, both understood as open-ended processes …’.Footnote 85 In contrast to this fluid and dialectical understanding of the political and legal formations of Metropolitan and colonial spaces, MILS divorces jurisdictional rules from their economic, social and political contexts and gave them a reified form. The abstract rules of jurisdiction therefore do not tell us anything about the state of international relations that gave rise to particular doctrines of international law, i.e., whether the doctrines and rules emerged in the era of colonialism, high imperialism or neo-colonialism. Put differently, MILS neglects the fact that while the modern state did not emerge solely in response to the rise of capitalism it became subject to the logic of capital once it became the dominant mode of production.Footnote 86 The universalizing impulse of capitalism came to be translated in the legal domain in the period of high imperialism through colonial legislation and practices and in the instance of semi-colonies through the exercise of extraterritorial jurisdiction, or which is the same, ‘legal imperialism’. In order to sustain the latter contention an illustrative sketch of the history of extraterritorial jurisdiction follows.
4. Capitalism, imperialism and extraterritorial jurisdiction
MILS projects the exercise of extraterritorial jurisdiction as a relatively infrequent exception to the territorial principle of jurisdiction.Footnote 87 However, from the perspective of formerly colonized nations it has had an enduring and substantial presence over time. The origin of the doctrine of extraterritorial jurisdiction can be traced back to the early modern period but it was in the nineteenth century that it assumed greater significance through the creation of new capitulation regimes and consular courts in semi-colonies; in the case of regular colonies territorial jurisdiction was exercised by the Metropolitan power.Footnote 88 In this era extraterritoriality referred to ‘a legal regime whereby a state claims exclusive jurisdiction over its citizens in another state’.Footnote 89 A number of capitulation regimes were in operation in semi-colonies of the nineteenth and early twentieth centuries:
During the late nineteenth and early twentieth centuries, Western powers imposed a system known as extraterritoriality in Japan, the Ottoman empire, and China. Western extraterritorial courts—not local courts—had jurisdiction over Westerners in Japan (1856-1899), the Ottoman Empire/Turkey (1825-1923), and China (1842-1943). During the mid-1880s, for example, forty-four Western extraterritorial courts operated in Japan’s treaty ports. In 1895, thirty-two British courts operated in the Ottoman Empire. Three decades later (circa 1926), twenty-six British, eighteen American, and eighteen French courts dotted China’s ports and cities … these states limited, and eventually eliminated in collaboration with groups in the local elite, the authority of the indigenous systems. They replaced them with Western legal categories and practices.Footnote 90
The justification for these regimes was in the final analysis the standard of civilization argument. As Kayaoglu succinctly observes, ‘the categories of extraterritoriality were the categories of civilization’.Footnote 91 It was, to put it simply, a form of ‘legal imperialism’.Footnote 92 The underlying factor that drove the capitulation regimes was the absence of cohesive laws and institutions considered necessary to promote commercial interests of imperial powers. According to Kayaoglu, ‘during the nineteenth century, Asian legal systems were fragmented because state rulers shared legal authority with societal groups and local communities’.Footnote 93 Therefore, it was difficult for foreign traders to learn about local rules and practices to safeguard commercial interests.Footnote 94 The capitulation regimes were ‘a crude form of legal harmonization to facilitate the conduct of international trade and transactions in the early era of global commerce’.Footnote 95 Therefore, the explanation for the eventual abolition of these regimes does not come as a surprise. Kayaoglu writes:
Legal institutionalization explains the timing of the abolition of extraterritoriality. Facing the Asian states’ resistance to extraterritoriality, Western states required the institutionalization of state law, in the form of positive law, as a condition for the recognition of Asian sovereignty.Footnote 96
As he goes on to explain, ‘institutionalized state law compatible with a positive legal order facilitate(d) transnational trade by providing information about legal and property rights, credibly enforcing these rights, and making the state accountable for the legal system within its boundaries’.Footnote 97 In other words, once harmonized laws and institutions were in place it led to the end of the capitulation regimes.Footnote 98 In historical terms, the abolition of extraterritoriality can be traced to ‘Meiji legal reforms in the 1880s, Republican Turkey’s legal transformation under Ataturk in the 1920s … and the Guomindang’s legal reorganization in China in the 1930s’.Footnote 99 It is worth pausing here and noting that the reasons for the exercise of extraterritoriality were the same as those which contributed to the emergence of the modern state in Europe viz., the fragmentation of laws. Or as Kayaoglu puts it, ‘by demanding the institutionalization of state law in non-Western countries, Western states aligned domestic arrangements making them compatible with … capitalism’.Footnote 100
The attempt at harmonization of laws has since been a ceaseless historical process for decolonization once again raised the problem of fragmentation and diversity of laws. The process of harmonization gained momentum in the era of globalization with the ambition of advanced capitalist states being to unify economic space and laws at the regional and global levels. The goal has been realized through the adoption of uniform legal standards in key areas of international social and economic life through means of multilateral arrangements, on which more presently. Of course, the progress towards harmonization or homogenization is not a linear process but comes with twists and turns. Yet the trend over the centuries is clear. The role of capital in shaping the doctrine of extraterritoriality also becomes abundantly clear from the Kayaoglu observation that his thesis on the ending of the exercise of extraterritorial jurisdiction in the colonial era ‘does not adequately explain the Soviet Union’s abolition of extraterritoriality in the Ottoman Empire and Turkey following the revolution in 1917’.Footnote 101 In his view, ‘abolition in this instance occurred as a result of mostly antiimperialist ideological reasons and the new Soviet regime’s desire to break its international relations’.Footnote 102 To put it differently, capitalism, imperialism, and extraterritorial jurisdiction proceed hand in hand in history. The one implies the other.
4.1 Harmonization of laws in the postcolonial era: Multidimensional strategy
The felt need of universalizing capitalism for larger harmonized legal spaces continued in the postcolonial period.Footnote 103 Indeed, an important lesson from historicizing the concepts of ‘territory’ and ‘jurisdiction’ is that while the scope and form of the exercise of extraterritorial jurisdiction changes over time, there is a stability of end purposes. As Raustiala observes:
… extraterritoriality has shown surprising continuity in its purpose even as its form has changed. Extraterritoriality meant very different things to nineteenth-century lawyers than it does to contemporary lawyers. But despite dramatic changes in form, the primary function of extraterritoriality has remained much the same. That function … is to manage and minimize the legal differences entrenched by the Westphalian sovereignty. Footnote 104
A crucial change has been that whereas in the past ‘imperialism mitigated difference by colonizing foreign places’ today this objective is realized primarily through ‘consensually negotiating shared rules’.Footnote 105 A multi-layered and multidimensional strategy or means has been adopted by advanced capitalist states to achieve harmonization goals. There are at least three elements of such a strategy. These may be termed the power, mediation, and revolutionary strategies. The latter two strategies do not involve the classic exercise of extraterritorial jurisdiction, and tend not to be associated with it, but achieve the same objectives. Their exclusion from the discussion of the international law of jurisdiction/extraterritorial jurisdiction demonstrates how positivist legal doctrines and rules, veil the strategies of imperialism, by being divorced from social and political realities or by slicing reality. Instead, the exercise of ‘extraterritorial jurisdiction’ should be defined in historical-sociological terms, that is, as the power advanced capitalist states to influence and shape the standards, laws and institutions in other jurisdictions.
In the first instance advanced capitalist states like the US rely on their economic and political power to enforce their laws extraterritorially, replacing the earlier institution of consular rights, the last of which it gave up in 1956 in Morocco.Footnote 106 As Raustiala writes ‘… just as one form of extraterritoriality was waning, another was waxing’:Footnote 107
By mid-century, the executive branch, Congress, and the courts were all seeking to extend the reach of a burgeoning array of domestic statutes to acts and actors overseas. This new form of extraterritoriality rapidly became a common part of American jurisprudence, and was in many respects more encompassing and powerful than the old extraterritoriality. Like the old, the new extraterritoriality deliberately extended American law beyond the borders of the United States in an effort to minimize the effects of legal difference. This time, however, domestic legal rules penetrated the borders of acknowledged and coequal sovereigns, not merely weak semisovereign powers.Footnote 108
The ‘use of extraterritorial domestic law’ allowed the US ‘… to exert American influence without having to worry about the constraints and mutual obligations that international treaties impose—a particularly strong form of American exceptionalism’:Footnote 109
From antitrust, to copyright, to securities regulation, to trademarks and trade names, to intellectual property, to corporate law and governance, to bankruptcy and tax, to criminal laws, to environmental laws, to civil rights, to labor—the list goes on—the United States has utilized prescriptive (i.e., legislative) jurisdiction to regulate conduct occurring abroad.Footnote 110
US Courts have also resorted to the ‘effects doctrine’ and the doctrine of ‘universal civil jurisdiction’ to regulate conduct abroad.Footnote 111 There have of course been ebbs and flows in the use of these doctrines to exercise extraterritorial jurisdiction. However, recounting the changes is not of significance here, as overall there is little doubt that the US sought to use these doctrines to extend its laws to other geographical spaces.
In the second instance bilateral and multilateral regimes are used to achieve the objective of harmonization of laws. The advanced capitalist states have found multilateral arrangements a significant instrument in seeking the global harmonization of laws. The multilateral regimes are either a part of or a ‘complement to the dense network of American-created post war international institutions’ which ‘sought to harmonize domestic rules on largely American terms’.Footnote 112 In arriving at multilateral arrangements overt coercion exercised by Metropolitan states in the colonial era is replaced by forms of ‘structural coercion’.Footnote 113 The goal of harmonization is realized either through a single instrument such as the WTO Agreement on Trade Related Intellectual Property Rights (TRIPS) or through a set of international agreements as in the field of international investment law. In the former case, as is well known, a set of minimal standards are set out that each WTO member has to observe.Footnote 114 This has meant that in critical areas like patent rights advanced nations like the US and France and less developed nations such as Nepal and Rwanda legislate the same core standards.Footnote 115 These are ratcheted up through TRIPS Plus standards adopted in bilateral and multilateral agreements that include free trade agreements (FTA).Footnote 116 Where foreign investment is concerned, the harmonization has been achieved through a network of agreements that include Bilateral Investment Protection Treaties, the WTO Agreement on Trade Related Investment Measures, the WTO General Agreement on Trade in Services, a number of free trade agreements, and the use of inter-state dispute settlement system to resolve disputes between states and MNCs.Footnote 117 After the end of the cold war comprehensive harmonization was sought to be achieved through an OECD Multilateral Agreement on Investment which was undone by protests of civil society in Europe concerned with its negotiations in secrecy and the idea of global corporate rule.Footnote 118 Currently there are ongoing negotiations on adopting a WTO Agreement on Investment Facilitation.Footnote 119 Arguably, over time the process of harmonization has taken place in most areas of international law including banking and finance, competition, human rights, environment, oceans, space and trade and commerce.Footnote 120 It is not harmonization of standards per se that is problematic but the loss of critical legal and policy space for developing nations with troubling outcomes for the welfare of its peoples.Footnote 121 In instances when the US and other advanced capitalist states do not become party to particular multilateral treaties and institutions or withdraw from them, they resort to the traditional exercise of extraterritorial jurisdiction to defend either local interests or ‘to deal unilaterally with global public goods’.Footnote 122
Finally, there is the revolutionary strategy which is implemented in the name of the ‘international community’, a good example of which is the United Nations undertaking of ITA. The antecedents of ITA can be traced to colonial times, in particular to the Mandate System under the League of Nations.Footnote 123 But the idea of ITA has assumed new forms in the postcolonial era.Footnote 124 Among the two major instances of the implementation of revolutionary strategy have been the creation of ITAs in East Timor and Kosovo. The scope of ‘extraterritorial jurisdiction’ exercised on behalf of the ‘international community’ on these territories can be gauged from UN Security Council Resolution 1272 (25 October 1999) which established the United Nations Transitional Administration in East Timor (UNTAET). It stated that UNTAET will be ‘… endowed with overall responsibility for the administration of East Timor and will be empowered to exercise all legislative and executive authority, including the administration of justice’.Footnote 125 UNTAET was expected to:
set and enforce the law, establish customs services and regulations, set and collect business and personal taxes, attract foreign investment, adjudicate property disputes and liabilities for war damage, reconstruct and operate all public utilities, create a banking system, run schools and pay teachers, and collect the garbage.Footnote 126
It has therefore been aptly observed of the international administrations of Kosovo and East Timor that these ‘constitute the most manifest and extensive contemporary assertions of an international jurisdiction that acts as a substitute for traditional State or territorial sovereignty’.Footnote 127 In both these territories, according to Scobbie, ‘the SG’s Special Representative exercised powers akin to that of the colonial administrator who is ultimately possessed of all legislative and executive authority …’.Footnote 128 Orford is therefore right in observing that ‘international territorial administrations are revolutionary regimes, designed to eliminate any existing laws, property relations and political cultures deemed illegitimate’.Footnote 129 The revolution is carried out by the ‘international community’ to create the social and political conditions that can extend the spatial reign of capital. In fact, ITA missions take on faith ‘the universal purchase of the models of economics and politics they are promoting’.Footnote 130 These spaces became the subject of harmonization of laws and are thereby rendered productive for global capital.
Of course, it is important to admit at this point that global capitalism flourishes ‘not only through homogenization or assimilation … but also through the production of difference’.Footnote 131 The existence of difference provides opportunities for exploitation of different standards such as in labour and environmental laws in industrialized and developing nations. Therefore, the continuous discursive production of difference is as essential, but in terms of strategy of secondary significance to the objective of capital accumulation, i.e., in contrast to the harmonization of laws. These differences are part of the legacy of colonialism.
5. Jurisdictional internationalism: Liberal or subaltern?
It is time to assess ways of reforming the international law of jurisdiction, in particular the exercise of extraterritorial jurisdiction, from the standpoint of weak nations and groups. It has been argued that while the logic of territory is about spatial limitations on the exercise of jurisdiction, the logic of capital is inherently extraterritorial in its orientation. Therefore, in order to create facilitative conditions for universalizing capital – which seeks to create a global economic space where uniform global standards apply – advanced capitalist states have had to find a way around the principle of territorial jurisdiction. The effort of these states has translated into legal imperialism resulting in a critical loss of policy space for weak states in the postcolonial era. The move to harmonize laws is justified by advanced capitalist states on the grounds that it will both help promote growth and development in weak states and help realize the global common good. The broad argument has been rejected by many an economist and international lawyer as the loss of policy space deprives weak states of the ability to respond to local and national realities and goes to subserve the parochial interests of powerful capitalist states.Footnote 132 But MILS justifies the exercise of extraterritorial jurisdiction using inter alia the contentions and vocabulary of liberal internationalism, which as is argued below, does not safeguard the interests of subaltern nations or promote global common good. In the final analysis MILS promotes the accumulation of capital on a global scale through among other things unequal exchange promoted by harmonized international trade law and the creation and protection of private property rights, including intellectual property rights, by means of synchronized international investment law.Footnote 133 Indeed, the ‘logic of capital’ demands that the limits of the exercise of extraterritorial jurisdiction are constantly extended, the latest effort involves the creation of a stable international property rights regime in outer space.Footnote 134
5.1 Liberal internationalism
The liberal internationalist position may be illustrated by reference to Ryngaert’s ‘new theory of jurisdiction’ as he has most clearly and cogently articulated that standpoint. He proposes that a state exercising extraterritorial jurisdiction act as an agent of the international community with the goal of promoting global common good. In advancing his version of liberal internationalism Ryngaert is aware that acting on his suggestion can lead to the erosion of the foundational international law principles of sovereign equality and non-intervention.Footnote 135 But he contends that these principles should not stand in the way of advancing the global common good. Instead, the doctrine of jurisdiction must place ‘the interests of the international community, and not of single “sovereign” States … center-stage’.Footnote 136 He goes on to observe:
If the “primary” State fails to exercise jurisdiction, even, if, from a global perspective, this were desirable, the “subsidiary” State has the right—and, it may be argued, sometimes the duty—to step in, in the interests of the global community. Such a jurisdictional system connects sovereign interests—on which the law of jurisdiction was traditionally based—with global interests, and ensures that impunity and globally harmful underregulation do not arise. Sovereignty then becomes a “relative” concept: international law and the international interest determine when States can invoke it … the State with the strongest nexus to a situation is entitled to exercise its jurisdiction, yet if it fails adequately to do so, another state with a weaker nexus (and in case of violations of jus cogens without a nexus) may step in, provided that its exercise of jurisdiction serves the global interest.Footnote 137
His functional stance is not entirely without merit. There is a certain value in casting the state as an agent of the global common good and creating new identities and roles on that basis. But it is difficult not to point to the utopian strain in such thinking. In view of the power differentials between states, and in particular the material and ideological hegemony of advanced capitalist nations, it is their legislators, courts, policy makers and academia or the international institutions that they control that define the meaning of global common good. In doing so the interests of global capital are most often placed centre-stage. To put it differently, what Ryngaert does not offer is a persuasive theory of sociology or history to accompany his proposal of States serving the cause of global common good.Footnote 138 He therefore overlooks the possibility that his proposed liberal jurisdictional internationalism can actually facilitate the realization of the parochial economic and political interests of transnational capital or advanced capitalist states.Footnote 139
In his other writings Ryngaert attempts to justify the exercise of extraterritorial jurisdiction observing that the fact that:
the powerful are more likely to exercise unilateral jurisdiction does not mean … that, when so doing, they are necessarily intent on furthering their own interests. Powerful states could well use their stronger enforcement capacities to protect international community interests.Footnote 140
This is not the first time that a proposal has been advanced to put the fox in charge of the chickens, and with great solemnity. However, to be fair he does call ‘for jurisdictional or substantive limitation of unilateral action to avert false universalism’.Footnote 141 He talks of ‘such jurisdictional mitigating mechanisms as dual illegality, democratic participation, equivalence, and compensation’.Footnote 142 These ideas may help limit the abuse of the exercise of extraterritorial jurisdiction but the fact is that Ryngaert is relying precisely on those actors to further cosmopolitan interests that have historically invoked it to advance legal and political imperialism. To privilege this view against centuries of contrary evidence is to essentially be on the side of imperialism, howsoever disclaimed. While appearing to be reasonable the proposals of liberal jurisdictional internationalism are neo-imperialist in their ambition and design.
It is true that in some instances related to the promotion and protection of human rights a state can represent the international community to advance global common good. In such cases perhaps ‘extraterritoriality is [not] at odds with the principles of democracy and representation’.Footnote 143 A principle of subaltern internationalism that seeks to further the interests of weak nations and groups would concede this. But the lesson of history is that powerful states are less inclined to invoke extraterritoriality to pursue a genuine human rights agenda as against geopolitical agendas. In the instance of international economic law Ryngaert himself admits that ‘the democratic deficiencies of extraterritorial jurisdiction should be taken seriously’.Footnote 144 But his response to the unjust situation has once again a utopian flavour to it:
The democratic deficit of extraterritoriality could possibly be overcome when legislatures, courts, and regulators embark on a dialogue with foreign corporations [the subjects of regulation], regulators, and courts, either through institutionalized channels, or through amicus curiae briefs or statements of interest, when exercising jurisdiction over foreign situations.Footnote 145
While the solution of dialogue, co-operation and amicus curiae has appeal, in practice weak states and their civil society organizations are unlikely to be heard. The reference at one point to the role of ‘transnational judicial networks’ only aggravates the problem as it is used as a means for transmitting first world solutions to the third world, the classic goal of the exercise of extraterritorial jurisdiction.Footnote 146 Furthermore, the power differential between states means that when democratic deficit in the exercise of extraterritorial jurisdiction fails to be addressed ‘reciprocity might not serve as a restraining principle’.Footnote 147 On the other hand, Ryngaert correctly rejects the ‘better law approach’ as he rightly recognizes that it will work only if it serves national interests of powerful states and will therefore go against weaker states.Footnote 148 Yet he insists that the only way forward is to:
… devise a rigorous rule-based system of international jurisdiction, modulated depending on the subject matter to be regulated, to which all states have to adhere, weaker nations are more likely to go along with it. Such a system, administered by independent courts, may restrict powerful States’ sphere of action and delegitimize their protest against weaker States’ own jurisdictional assertions.Footnote 149
The refusal to engage with the problematic nature of the global order again comes to the fore. The solution Ryngaert recommends may at best work among the advanced capitalist states. In any case, given his positivist legal definition of extraterritorial jurisdiction, as against the historical and sociological understanding, Ryngaert does not take cognizance of its expanded domain through treaty regimes in the areas of trade, money and finance and decisions of international bodies such as the UN Security Council. His proposal has therefore a limited scope of application. In the final analysis Ryngaert’s ‘rationality’ turns out to be ‘capitalist rationality’.
5.2 Subaltern internationalism
A more productive response to the undemocratic and unjust exercise of jurisdiction and extraterritorial jurisdiction may be termed the principle of subaltern internationalism (PSI). While it would require a separate paper to explore its meaning, scope and implications, some of the bare theoretical and policy elements that will inform and flow from the application of PSI are indicated below.Footnote 150
First, as opposed to a positivist understanding, PSI would proceed to make recommendations on the basis of a historical and sociological reading of the international law of jurisdiction. Such a view will help demonstrate that at least since the nineteenth century the exercise of jurisdiction/extraterritorial jurisdiction, has helped imperial nations create legal conditions for the expanded accumulation of capital at the expense of weak states.
Second, noting that the harmonization of international laws disadvantages weak nations and their marginalized groups, PSI would call for a review of harmonized rules in all areas of international life – finance, investment, trade, environment, oceans, space – to assess their impact. The aim will be to call for the restoration of critical policy space by making suitable changes in relevant international law regimes such as investment, intellectual property rights, trade and environment regimes.Footnote 151
Third, PSI would invoke the all affected principle (AAP) to allow civil society organizations to voice the concerns of groups significantly impacted by the exercise of extraterritorial jurisdiction or the harmonization of international laws.Footnote 152 In other words, going beyond weak states PSI will allow transnational marginalized and oppressed groups to have a say in the shaping of international laws relating to jurisdiction.
Fourth, PSI would call for the adoption of an international declaration or convention on jurisdiction that specifies among other things the limits of the unilateral exercise of extraterritorial jurisdiction. The declaration or convention will set out the conditions for the exercise of extraterritorial jurisdiction on the basis of doctrines such as the ‘effects doctrine’ or the doctrine of ‘universal civil jurisdiction’.Footnote 153 The declaration or convention would also attempt to codify principles that ‘inculcate ideals of tolerance, dialogue, and mutual accommodation’ in the process of regulation and adjudication of the exercise of extraterritorial jurisdiction.Footnote 154 For as has been aptly observed, ‘universalism inevitably erases diversity…such erasure may involve the silencing of less powerful voices’.Footnote 155 It is encouraging in these respects that the US Supreme Court has itself attempted in the recent past to inter alia curb the exercise of universal civil jurisdiction.Footnote 156
Fifth, PSI will seek to limit the private exercise of extraterritorial jurisdiction by MNCs through the conduct of intra-firm trade and the adoption of voluntary codes of conduct, and make them more amenable to the tax and regulatory jurisdiction of host states.Footnote 157 PSI will seek a special regime for the regulation of digital platforms like Amazon, Facebook, and Google which are becoming ‘functionally sovereign’ and are ‘playing a quasi-governmental role as they adjudicate conflicts between consumers, marketers, content providers, and an expanding array of third and fourth parties’.Footnote 158 The recent decision of the Facebook Oversight Board in the Trump Twitter suspension case points to the limits of self-regulation.Footnote 159 There is also a need to, among other things, help address the question of divergent responses of digital platforms in different national jurisdictions.
Sixth, PSI would call for the structural reform of the concept of ‘international territorial administration’, and accompanying practices, which allows powerful states to exercise extraterritorial jurisdiction over ‘new’ nations in the name of the ‘international community’. In other words, PSI would call for full adherence to the principle of self-determination.
Seventh, PSI would help reimagine the promotion of environment protection in the Anthropcene (better termed ‘Capitalocene’) by transcending the binary of territorial and extraterritorial jurisdiction to seek the global regulation of the production and distribution activities of private actors that result in war against NatureFootnote 160 . It will also attempt to articulate alternatives to market based measures to address the problem of climate change as these result in ‘carbon colonialism’ and ‘green grabbing’.Footnote 161
Eighth, in the matrix of a historical-sociological understanding of the extraterritorial exercise of jurisdiction, PSI would relativize the distinction between citizens and aliens and encourage advanced capitalist states to adopt a more liberal policy towards asylum seekers. In other words, in view of the exploitation of weak peoples and nations through the exercise of extraterritorial jurisdiction these states have the responsibility to welcome refugees fleeing threats to their life and freedom.
Ninth, PSI will seek to, and here it is one with liberal internationalism, strengthen the principle of solidarity in the matrix of international human rights law by taking seriously the observation of ICJ in its advisory opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: ‘the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory’.Footnote 162 The Inter-American Commission on Human Rights has also drawn attention to the need for extraterritorial obligations of home states.Footnote 163 The UN Committee on Economic, Social, and Cultural Rights has also underlined the need for observance of extraterritorial obligations in General Comment 24 (2017) on ‘State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities’.Footnote 164 There is growing literature on the extraterritorial application of human rights treaties.Footnote 165 In 2011, 40 international law experts from all regions of the world went further and adopted the Maastricht Principles on Extraterritorial Obligations underscoring its importance in the area of economic, social and cultural rights.Footnote 166
6. Conclusion
The international law of jurisdiction has long been the subject of technical and neutral description. In presenting the triad of sovereignty, territory, and jurisdiction as the normal order of things MILS reifies and mystifies rules relating to the exercise of jurisdiction. In other words, MILS entirely neglects the historical, social and political dimensions of the doctrine and rules of jurisdiction. It is left to critical theory to problematize and deconstruct the categories ‘territory’, ‘jurisdiction’, and ‘extraterritorial jurisdiction’ and identify the particular social forces and states that shape and give life to them. It is not as if the technical aspects of the rules of jurisdiction are superfluous. These do aid the resolution of international legal disputes. But a historical and sociological understanding of the international law of jurisdiction more adequately captures the meaning, scope, and consequences of the exercise of jurisdiction and extraterritorial jurisdiction.
In the TWAIL view the rules relating to the exercise of jurisdiction and extraterritorial jurisdiction have been framed in a great measure in response to the needs of capital since the nineteenth century. Historically, universalizing capitalism has sought to annihilate non-capitalist legal spaces through the exercise of different forms of extraterritorial jurisdiction. In the colonial era, relevant laws and institutions of capitalist states were extended to the non-western world by either subjecting them to direct rule or in the case of semi-colonies through capitulation regimes. The latter arrangement continued until the laws and institutions in the semi-colonies were brought in line through domestic legislative measures.
The felt need of universalizing capitalism for harmonized regional and global legal spaces continued in the post second world war period. It was inter alia realized through the creation of regional legal spaces such as the European Union and in the instance of non-capitalist spaces by adopting doctrines that allowed the exercise of extraterritorial jurisdiction or through multilateral legal regimes. In the period of globalization, the project of harmonization of laws assumed a particular class dimension with the emergence of a TCC, indicating a lack of resistance of elites of Global South to the harmonization project. It is not as if capitalism does not celebrate difference but only if these are not obstacles to its expansion or can be used to advance the process of capital accumulation. Indeed, capital uses both moments of congruence and difference to extend and sustain its empire.
In order to legitimize the exercise of extraterritorial jurisdiction MILS has often presented the advanced capitalist state as an agent of international community which seeks to advance the global common good. What is overlooked is the vast inequalities of power and resources between developed and weak states. It is true that the move to legitimize extraterritorial jurisdiction has also been relied on by critical liberal scholars to call for the extraterritorial application of international human rights law. This is a justified proposal but its application is resisted by powerful states or turned around to legitimize transnational property rights or inflict violence against weaker states through doctrines such as the responsibility to protect. What is required is the application of PSI which requires that the scope and limits of the exercise of jurisdiction and extraterritorial jurisdiction be restricted to enhance the legal and policy space of developing nations to give substance to the principle of self-determination. In the final analysis the international law rules of jurisdiction must promote global democracy and global justice.
