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This chapter deals with Germany’s position on State jurisdiction and immunities. The first part, Jurisdiction of the State, addresses Germany releasing an Iranian citizen in a prisoner swap, as well as Germany considering further US sanctions on Nord Stream 2, a pipeline project delivering gas from Russia to Germany, an encroachment on its sovereignty as it understands them to be extraterritorial in nature. The second part, State immunity, deals with the Federal Constitutional Court classifying Greek debt restructuring measures as acta iure imperii. While the chapter agrees with the decision, it criticizes the Federal Constitutional Court for missing the opportunity to advance the discussion of a contentious matter of public international law. Another article assesses Germany’s (non)participation in US court proceedings for alleged colonial genocide and enslavement of the Ovaherero and Nama in what was formerly known as South West Africa and is now Namibia. The chapter argues that Germany is not answerable and that Namibia’s position in its negotiations with the German government over a political declaration concerning atrocities committed during colonial rule was weakened.
This chapter aims to investigate the extent to which the Netherlands has attempted to rein in transnational corporations from developing and emerging states by imposing requirements as a matter of regulatory compliance, either directly as an obligation formulated in a rule, or indirectly by offering corporations the opportunity to defend against civil violations. Section 1 of this chapter examines the Dutch Child Labour Duty of Care Law (2019). An evaluation of the parliamentary debates increases our understanding as to whether and to what extent competition from non-Dutch corporations – and, in particular, transnational corporations from developing and emerging states – in the global marketplace has had an impact on the stringency and reach of this legislative initiative. Section 2 discusses the (largely hypothetical) avenues available to bring claims against transnational corporations from developing and emerging states in Dutch courts.
Although transnational law is often characterized as ‘non-state law’, states actually play a significant role in the construction and operation of much transnational regulation. Chapter 6 examines the most common ways that states do this. These include: by giving transnational effect to their own domestic laws – what is known as ‘extraterritoriality’; by imposing economic sanctions against regimes that are not comporting with transnational legal norms; by adjudicating transnational regulatory disputes in their domestic courts – i.e., ‘transnational litigation’; and by collaborating in the formation of intergovernmental networks that shape and sometimes even create transnational regulatory regimes. Each of these techniques has its own set of comparative advantages and disadvantages insofar as both their efficacy and their legitimacy implications.
Looked at through the topic of State responsibility, chapter five underlines the continued importance and relevance of the general rules of international law in addressing some of the challenges encountered when dealing with State corporate ownership and human rights. The first part of the chapter provides an introduction to the nature and scope of State responsibility in international law with particular emphasis being placed on the role and process of attribution. In this context, the rules of attribution found in Articles 4, 5 and 8 of the International Law Commission Articles on the Responsibility of States for Internationally Wrongful Acts are examined in detail. The second part of the chapter analyses how the concept of due diligence becomes relevant when certain acts and omissions cannot be attributed to the State because those acts are not perpetrated by State organs, by actors that exercise governmental authority, or by those that are not under the 'effective control' of the State. In such cases, States, can nevertheless, be held responsible for a failure to act diligently to take all the necessary measures to prevent or punish the occurrence of a specific act.
The ‘public morals’ exception remains a key aspect of the international trade system; however, its outer bounds have never been precisely defined. This question became pertinent in the US–Tariff Measures panel report, which expansively read the exception to justify a wide range of economic interests, including prohibitions on economic espionage, anti-competitive behaviour, and the regulation of government takings. This note challenges the panel's interpretation, arguing that it is flawed and essentially amounts to a factual standard of review. It proposes an alternative approach to public morals review, which involves an objective standard of review of facts and law, while providing adequate deference to Members’ own factual determinations. It further engages with the issue of extraterritoriality, defending an approach based on Members’ legislative jurisdiction as this strikes a balance between Members’ right to regulate trade for moral purposes and the interests of the international community.
At the intersection of imperial rule and private power, Shanghai rose to international prominence in the second half of the nineteenth and first half of the twentieth century. It did so by taking advantage of the extraterritorial status and the dynamic, cosmopolitan population of the International Settlement. In evaluating the fate of the Shanghai Municipal Council, we seek to ascertain how private authority could have been constituted on a transnational basis within the framework of a treaty port. The rise of Shanghai was linked to some of the ambiguities of overlapping imperial rule and the possibilities it created for legal and governance experimentation. This is particularly clear in realms most associated with sovereign power, namely the International Settlement’s attempts to claim some taxation power and maintain law and order. That power, however, was interstitial at best and the product of fragile balances, as shown by the Council’s ultimate failure to secure a full international legal status for Shanghai. Nonetheless, the rise and fall of the International Settlement at Shanghai are worth reflecting upon, not only in relation to the history of China, imperialism and international law, but also as a way of thinking how the authority of large metropolitan centres might be constituted.
On January 3, 2019, U.S. District Judge Theodore D. Chuang of the U.S. District Court of the District of Maryland took a crucial first step in redressing one of the worst human subjects research ethics violations in U.S. history.
Chapter 5 examines the traditional Islamic rules on jurisdiction. Modern rules on the jurisdiction of domestic courts exist in the context of the system of States, whereas the historic Islamic rules on jurisdiction and the assumptions upon which they were based relate to a system which was premised upon an imperial ideal that approached core concepts of modern Private International Law from different vantage points. The manner and extent to which pre-modern substantive rules, coupled with an imperial imagination, have permeated into the modern domestic law of Muslim Family Law States differs between such states, but nonetheless reveals a shared problem that we suggest animates the ongoing debates around the 1980 Hague Abduction Convention. Policies of ‘Islamisation’ pursued in certain Muslim Family Law States have at various times sought to reintroduce selected interpretations of Islam into the areas of domestic law pertinent to the study. Thus, the process is not necessarily a linear one over time where the historic rules have become marginalised, but rather one where there is an ebb and flow over time – the extent of which differs between Muslim Family Law States.
This chapter considers the major features of international environmental governance that are manifestations of altruism. It begins from the observation that the very premise of international environmental law is the no-harm principle which, while not altruistic per se, illustrates the structurally inherent concern for the other at the heart of the regime. The chapter continues by appraising the emergence of concern for the individual, and in particular procedures through which those in other countries can participate in environmental decision-making or have recourse to justice where they are subject to environmental harm. Moreover, international human rights law is interacting with international environmental law to extend the environmental obligations that states have to people third countries. The universality of international environmental law obligations is also manifested in principles such as intergenerational equity, which is an altruistic consideration for people of the future. Finally, the chapter considers the increasing prevalence of common but differentiated responsibilities and commitments made to developing countries in the area of environmental protection. A particular focus is placed on the importance of financial and technical assistance.
Chapter 6 examines the Muslim Family Laws of the United Arab Emirates, Tunisia, and Malaysia in light of their jurisprudence on jurisdiction. The selection of these states represents a geographically, culturally, and legally diverse sample, across which Islamic Law remains legally relevant. The chapter examines how differing approaches to jurisdiction or child custody have been adopted and what the implications of these are or may be in the context of seeking to address international parental child abduction. The selected case studies highlight different approaches that lend themselves to finding solutions to addressing international parental child abductions. One matter that traverses all three case studies concerns the capacity of domestic judges, with subject matter jurisdiction on family law, to think jurisdictionally. As the case studies show, a key concern for policy-makers in Muslim Family Law States has been to consider a whole-of-law approach to jurisprudence. For others, the challenge lies in recognising the Muslim Family Law States as disaggregated institutionally, and to strategise approaches that are institution-specific.
In 1855 Siam signed the Bowring Treaty with Britain, the first of 15 unequal trade treaties with nations around the world. The treaties introduced to Siam extraterritoriality, or consular jurisdiction over foreign subjects in exclusion of Thai authorities’ jurisdiction, using specially established consular or international courts staffed by foreign judges. As well documented and discussed elsewhere, this extraterritoriality led to the pressure for the country to modernise its legal system and introduce legal codes modelled on codes in civil law countries such as France, Germany and Japan. Much less examined is the quiet and latent influence of common law during this important juncture of the country’s legal history. This chapter looks at some of the leading British lawyers in Siam who, following the abolition of the international court, sat in the Supreme Court of Siam, or Dika Court, as members of the ‘Committee of the Supreme Court’, an equivalence of modern day judges. The chapter examines their legal backgrounds, their legal careers in Siam, and their role as Supreme Court judges. As the chapter traces through their work, our inquiry reveals a fascinating dynamic of common law legal reasoning and principles in a civil law, code-based jurisdiction. This investigation into the role of these British judges during the formative years of Siam’s newly established legal system, often understated and unexplored in academic literature, is crucial for a more complete understanding of the country’s process of modernisation.
Since the end of the Cold War, the content, scope, and extent of extraterritorial human rights obligations has become a pressing concern for international lawyers. On one end of the debate, mainstream scholarship argues that jurisdiction is primarily territorial, identifying a limited range of situations in which jurisdiction (and responsibility) is triggered. On the other end, critical scholars suggest that Empire still haunts jurisdiction. By reconstructing the history of this doctrine, they show that the imperial reach has always been extra-territorial and that the intimate linkage between state, territory, and population is of a rather recent and tenuous origin. In both of these narratives, however, lies the assumption that jurisdiction operates as a secularized power. Even if empires/states were once religious, faith’s legacy remains confined to the past. In this article, conversely, I trace a critical genealogy of Christian authority as a jurisdictional structure, in which territoriality was never presumed. After all, one cannot forget that Catholicism and Universalism were forged in the same etymological crucible. By drawing from Foucault’s analysis of pastoral power, I argue that international law has deep roots in Christianity’s claims of governmentality upon ‘men and souls’ instead of over defined territories.
Discontentment is growing such that governments, and notably that of China, are increasingly providing subsidies to companies outside their jurisdiction, ‘buying their way’ into other countries’ markets and undermining fair competition therein as they do so. In response, the European Union recently published a proposal to tackle such foreign subsidization in its own market. This article asks whether foreign subsidies can instead be addressed under the existing rules of the World Trade Organization, and, if not, whether those rules allow States to take matters into their own hands and act unilaterally. The authors shed light on these issues and provide preliminary guidance on how to design a response to foreign subsidization which is consistent with international trade law.
Nineteenth-century international lawyers inherited a discipline in flux and inhabited a world of rapid change. As capitalism entered a period of crisis and Western imperial adventures intensified, the first generation of professional international lawyers grappled with the need to construct order. The ‘standard of civilisation’ arose as a disciplinary response to the contradictions of global capitalism. This chapter provides a detailed account of the contours of the ‘logic of biology’ and the ‘logic of improvement’. It details both the constant presence of racialised, gendered and infantilising tropes in the writings of the discipline’s ‘fathers’ and their insistence that capitalist modernity was the only path to civilisation and, by implication, to equal rights and duties under international law. The struggles over extraterritoriality demonstrate the concrete stakes of these theoretical constructions as well as the role of semi-peripheral lawyers who adopted and transformed ‘civilisation’ in order to serve the interests of their own domestic ruling classes.
This chapter discusses the two wars between Great Britain and the Qing Empire in 1839–1842 and 1856–1860. Usually viewed separately it makes sense to consider the two together. Both conflicts were about two sets of concerns: First, the British wanted a framework where British merchants had access to multiple ports, limited taxes, no restrictions on who they could trade with, and legalized imports of opium. Second, the British wanted a new system of diplomatic and political relations. Rejecting existing Qing systems of diplomatic relations such as the tribute system, the British wanted to utilize European diplomatic practices and international law as an institutional framework. Victory in both wars allowed Britain to redefine the frameworks of both trade and diplomacy in the manner they saw fit, creating the treaty system that would last until World War II.
Chapter 1 problematises the classic history of diplomacy in relation to extraterritoriality and presents the key debates in IR and international law to which this study contributes. This chapter further shows that classic diplomatic history's focus on embassies and Grotius to historicise extraterritoriality has contributed to the Westphalian imaginaries that remain dominant and maintain linear trajectories of the shift from personal to territorial concepts of sovereignty. If a range of new studies, focused on biographical and cultural aspects of diplomacy, are also contesting this approach and account of early modern jurisdiction, they nevertheless remain limited in terms of not fundamentally questioning the link between extraterritorial and territorial sovereignty based on the analysis of ambassadorial immunity and the shift from the personal – the ambassador – to the territorial – the embassy. These limitations call for new approaches to the history of extraterritoriality.
Chapter 7 discusses the conceptual and historiographical implications of the analysis of consuls in Chapter 5 and of the jurisdictional practices of accumulation in Chapter 6. Exploring different meanings of jurisdiction for the doctrine of the law of nations in Castile and for England’s famous Calvin’s Case reveals the importance of the difference between transplants and transports of authority as shaped by different notions of dominium. In effect, transplants of authority refer to notions of dominium that incorporate both ownership of things and people and rule or judicial authority over things and people. In contrast, transports of authority refer to a more restricted notion of dominium focused on the ownership of things, or what some might identify as private property. Finally, in the Mediterranean, jurisdictional accumulation reveals how early modern consuls, as the most significant and neglected of jurisdictional actors, were shaping key legal fictions (political–economic and Christian–non-Christian) that were maintained in the later-nineteenth-century’s construction of modern international law, and which contributed to excluding peoples from the standards of civilisation.
The majority of European early modern empires – the Castilian, French, Dutch, and English/British – developed practices of jurisdictional accumulation, distinguished by the three categories of extensions, transports, and transplants of authority. This book is concerned with various diplomatic and colonial agents which enabled the transports and transplants of sovereign authority. Through historical analyses of ambassadors and consuls in the Mediterranean based on primary and secondary material, and on the empires' Atlantic imperial expansions and conquests, the book makes a major analytical contribution to historical sociology. As an interdisciplinary exercise in conceptual innovation based on a Political Marxist framework and its concept of social property relations, the book goes beyond common binaries in both conventional and critical histories. The new concept of jurisdictional accumulation brings ambassadors, consuls, merchants, and lawyers out of the shadows of empire and onto the main stage of the construction of modern international relations and international law.
This chapter follows the new mobilities and barriers across the Indian Ocean that arose with colonial capitalist wars beginning in the 1700s. Asian migrants, their experience of indentured labor, and their modes of contestation, endurance, and resistance feature centrally here.