Reconceiving Extraterritorial Jurisdiction: From Formality to Function

• Applicant: Kevin Li
• Subject Area: Public Law
• Term: from 2022 to 2023
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 499582385

This book is a reflection on the dysfunction of the international law system of prescriptive State jurisdiction. It deconstructs, through a comparative analysis of US and European State practice, the legitimacy of the principles recognized under international law for the exercise of extraterritorial jurisdiction. Thereafter, this book proposes a new conception and advocates to determine the valid reach of extraterritorial jurisdiction from its function as an exercise of public authority. The customary international law rules on prescriptive jurisdiction have aptly been described as “the law on laws” as they provide the outer limits for national law-making. Traditionally, these rules have been intimately connected to the principle of territorial sovereignty, Nonetheless, powerful States are increasingly resorting to extraterritorial jurisdiction to regulate circumstances which are also or predominantly connected to the interests of other States: The US economic sanctions targeting the Nord Stream 2 Pipeline are a prime example in this regard. However, such action is no longer limited to the United States: For instance, the Serious Fraud Office of the United Kingdom has most recently launched investigations into a Canadian aircraft maker for alleged bribery in Indonesia. Against this background, the question arises whether a discrepancy exists between the settled allocation of jurisdiction in international law and its exercise in practice. Through a comparative analysis of State practice in four reference areas related to business regulation, this study explores this gap between the theoretical ambitions and the practical status quo. This book argues that although the territoriality-based system of jurisdiction seems to be an intuitive way of allocating regulatory competence between States, it now fails to account for the ever more complex reality of international relations. In fact, one of the basic requirements for territoriality to function is not given anymore, as it is becoming increasingly more difficult to distinguish between clearly territorial and clearly extraterritorial measures. Moreover, territoriality and the other recognized jurisdictional bases are also not normatively convincing. Specifically, they elevate interests of State sovereignty to be the only relevant consideration, while barring other, equally essential considerations for justifying extraterritorial jurisdiction. The book’s proposed new approach seeks to overcome both the practical and the normative challenge. For that, it advocates that the legality of extraterritorial jurisdiction should not only depend on the formal criterion of territoriality, but also on functional aspects, in particular the legitimation and limitation of the exercise of public authority.

• DFG Programme: Publication Grants