The laws of each state have force within the limits of that government and bind all subject to it, but not beyond. All persons within the limits of a government, whether they live there permanently or temporarily, are deemed to be subjects thereof. The influence of territoriality is as pervasive in private international law as it is in public international law, although subject to the same possible challenges in light of de-territorialised communications technologies.
The issue has, however, reduced in significance because in practice, through the doctrine of forum non conveniens , jurisdiction based on bare presence will not generally be exercised. Choice of law rules — reflecting principles of prescriptive jurisdiction — also frequently rely on territorial connecting factors to determine the law which governs a private law relationship, such as applying the law of the place of an alleged tort the lex loci delicti , 75 or the law of the location of movable or immovable property the lex situs. His maxims were modified in the work of Joseph Story in the early nineteenth century, who instead proposed the following foundations for the law of international jurisdiction: the laws of one country can have no intrinsic force … except within the territorial limits and jurisdiction of that country.
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They can bind only its own subjects, and others, who are within its jurisdictional limits; and the latter only while they remain there. Indeed, nationality appears to be generally declining as a connecting factor in private international law, as it may be seen as contrary to other obligations which require states not to treat parties differently on the basis of their nationality. Obligations of non-discrimination on the grounds of nationality arise under the law of the European Union between Member States only 86 and European Convention on Human Rights, 87 for example, and may also arise under international investment treaties.
It may also be identified as strongly reflecting the traditional conception of public international jurisdiction as a matter of state right and power, as it is states which set the conditions for the conferral of nationality on individuals. While definitions of these factors may vary, each involves a connection between a person and a place which reflects some kind of habitual presence in and personal link with a territory. The fact that these connecting factors are used and widely accepted in private international law itself suggests that the treatment of territory and nationality as discrete grounds for jurisdiction in traditional formulations of international law jurisdiction is too restrictive.
The practice of states instead supports the idea that jurisdiction may be based on a flexible combination of both territorial and personal connecting factors — connections between a person and a place which do not depend on nationality, such as domicile or habitual residence. The use of domicile or residence as a connecting factor in private international law also raises a further important issue with respect to conceptions of jurisdiction in public international law. Determinations of domicile and residence usually involve considering facts which are more within the control of individuals than questions of nationality, which are governed strictly by the state itself.
Dual passport holders may, for example, freely decide whether to be domiciled or resident in either state of nationality, thus if these connecting factors are relied on instead of nationality partially determining which court or courts may have jurisdiction over them, or which law will govern their relationships or disputes. In practice, companies may change their place of registration or central administration even more readily. In the increased use of these criteria as connecting factors, instead of the state-controlled criteria of nationality, we may perhaps already see evidence for the contention, explored further below, that individual autonomy is increasingly recognised as playing an important role in questions of jurisdiction.
As noted, private international law rules on jurisdiction may recognise that certain subject matters are so closely connected with a single state that the courts of that state should have exclusive jurisdiction. In general, however, rules of private international law function within a public international law context in which overlapping jurisdiction is permitted, because more than one state may have a basis for exercising jurisdiction on territorial or personal grounds. Rules of private international law similarly accept a wide range of grounds for national courts to exercise jurisdiction over private law disputes, and thus readily accept the possibility that more than one court may have jurisdiction based on territorial or personal connections with the parties or the subject matter of their dispute.
Equally, more than one state might purport to apply its private law to a dispute or relationship, based on territorial or personal connections. But private international law has also given rise to distinct approaches to dealing with the conflicts which might potentially arise from such overlaps, 91 through the development of principles of jurisdictional priority which seek to limit or resolve such potential parallel proceedings.
Where proceedings can be commenced in more than one state, courts may exercise jurisdictional deference, either because another court is considered to be clearly more appropriate, 92 or because the other court was first seised of the dispute. None of the conflict avoidance techniques of private international law has been universally accepted, nor does any form a clear part of the international law on jurisdiction.
But they show that in the private law context states have engaged with the principles and problems of potentially overlapping international jurisdiction in a more sophisticated and nuanced way than is generally seen in the context of public international law. The remainder of this article considers challenges which have arisen to the traditional idea of jurisdiction as a matter of right and power of states under international law, based principally on connections of territoriality or nationality.
These challenges have come from developments in both public international law and private international law, particularly through the increased recognition given to individual actors in both closely related fields. In order to highlight the connection between developments in public and private international law, the focus of the remaining sections is largely on adjudicative jurisdiction — as discussed above, the sense in which the term jurisdiction is used in private international law — and on the prescriptive rather than enforcement components of judicial proceedings. To understand the background to these developments, it is first important to note another challenge to the traditional approach to jurisdiction in international law — the growing recognition that in some circumstances the exercise of national jurisdiction may, under international law, be a question of duty or obligation rather than right or discretion.
States have increasingly agreed to various obligations under international law under which they have constrained their traditional jurisdictional discretion — either by prohibiting or mandating certain forms of regulation. This is particularly the case in the context of obligations to criminalise certain conduct and to submit individuals to prosecution which exist across a range of international criminal law treaties, and perhaps even albeit more controversially 98 as part of customary international law.
These treaties also expressly or implicitly require states to pass domestic laws permitting or facilitating the exercise of such jurisdiction, similarly fettering the discretionary nature of national prescriptive jurisdiction. They are obligations to exercise the recognised grounds of jurisdiction in international law, as examined above, which are thereby transformed from jurisdictional rights to duties.
In some cases, the obligations go further, requiring exercise of jurisdiction over any person found within the territory, regardless of their nationality or of where the alleged crime was committed. Such jurisdictional duties, particularly although not only where they expand the scope of accepted jurisdictional principles, may also come into apparent conflict with traditional prohibitive rules on jurisdiction, such as rules of immunity, which would normally require that jurisdictional powers not be exercised. In such cases, the collective agreement to establish an obligation to exercise jurisdiction may constitute an implied determination that state immunity should not be applicable.
Through accepting jurisdictional obligations, states have increasingly accepted the idea of jurisdiction as a matter of duty rather than right, particularly although not exclusively in the criminal context. In international criminal law, many states have accepted the related idea that a failure to submit those suspected of international crimes to prosecution will lead to forfeiture of national jurisdiction, to be replaced by obligations to transfer suspects to the International Criminal Court, under the principle of complementarity.
The venerable rules on protection of diplomats and embassies, for example, are generally considered to require the enactment and enforcement of domestic legislation which should deter and punish harm to either. Similarly, while a state may generally have extraterritorial jurisdiction over its nationals, it could not legislate to require them to act in a manner which would breach rules of international law, for example, by interfering in the internal affairs of a foreign state. While rules of international law which affect the exercise of jurisdiction may not be new, the fact that particularly positive jurisdictional obligations have been recognised with growing frequency and scope supports the thesis of a broader shift in international law.
It is, of course, possible to quarantine the law of jurisdiction from these developments — to argue that, while obligations may indeed have arisen in other areas of international law, as a matter of jurisdiction states still possess discretionary powers. If jurisdictional obligations were few and far between, there would be a reasonable case for such an approach.
But as international law pervades the fabric of state law-making increasingly broadly and deeply, such an approach would leave the law of jurisdiction artificially disconnected from reality — this is indeed the condition which has generally afflicted accounts of the law of international jurisdiction. As a consequence, the idea of jurisdiction in international law as a matter of state discretion should no longer be the starting point of thinking on the subject, but should be replaced by an idea of state jurisdiction as a mixture of discretionary, mandatory and prohibitive elements.
This idea of jurisdiction as a duty most typically arises in the context of criminal law obligations, or in the context of obligations of human rights protection. They do not challenge the authority of state public power, but rather operate through its mechanisms, to that extent implicitly reinforcing them. This is not to say that such jurisdictional duties are not innovative — they are frequently concerned with the regulation by a state of matters within its own territory for example, obligations to criminalise certain territorial conduct , which is in itself a departure from the older idea of international law as concerned only with relations between sovereign states.
Jurisdictional duties, even owed by states to each other, are part of the recognition that international law is also concerned with the relations between states and individuals. The obligations of states are thus not limited to substantive standards of treatment towards foreign nationals, but also include adjudicative obligations of providing access to redress for violations. As a counterpart to these obligations, foreign nationals were traditionally expected to exhaust local remedies in the courts of the host state before international claims could be brought.
Access to a court may be required not only where the individual is mistreated by the state typically leading to public law-style proceedings, such as judicial review , but also where the individual is mistreated by another private party typically leading to a civil law claim, such as in contract or tort. Where a claim is brought by a foreign national complaining about their treatment by the host state itself, any failure of those local remedial processes may constitute an additional international wrong, compounding the initial wrongful treatment by the state.
In such cases, a denial of justice may be the only delict committed by the host state. A state cannot limit its responsibilities to foreign nationals by limiting the powers of its own courts. It must not only comply with its own rules of jurisdiction, but those rules must also comply with minimum standards of international law — standards which are admittedly yet to be fully and clearly articulated. Traditionally, the obligations of treatment of foreign nationals have operated through the international law framework of diplomatic protection, and claims for violations of the standards in respect of any individual may only be made at the inter-state level and only by the state of nationality.
Thus, the Permanent Court of International Justice held that: It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels. By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights — its rights to ensure, in the person of its subjects, respect for the rules of international law.
In the particular context of the treatment of foreign investors, this traditional idea has however come under challenge through the rapid development of international investment law and arbitration. States across the world have entered into thousands of bilateral investment treaties, which generally serve two functions.
First, they define the substantive standards of treatment applicable to each state in respect of foreign investors from the other state — these may reflect, clarify or go beyond customary international law minimum standards. Second, and more importantly for present purposes, they establish procedures under which such investors may bring claims directly against the host state in respect of their investment. Few investment treaties require exhaustion of local remedies, so an investor may directly commence arbitral proceedings against a state for breaches of their rights by a public authority of that state.
If the investor is harmed by a private party, or chooses or is required to bring domestic proceedings against a public authority, denial of a remedy may mean that international arbitration can still be pursued as a secondary claim arising out of denial of justice. Although formally bilateral investment treaties apply between two states, the imposition of obligations on those states with respect to private investors, together with the creation of arbitral mechanisms for investors to enforce those obligations directly, means that international investment law appears to create internationalised private rights which are opposable to the state.
This development suggests the need to rethink the idea of jurisdiction in international law. To the extent that states have agreed to individually enforceable rights for foreign investors which extend to a right of access to civil or administrative remedies in respect of their treatment by the state, they have apparently agreed that they owe jurisdictional obligations not only to foreign states but also to individuals.
It can nevertheless also be argued that through the recognition of individuals as positive actors and jurisdictional rights-bearers, the idea of jurisdiction as purely an expression of the rights and powers of sovereign states requires reconceptualisation. The European Court of Justice has, for example, repeatedly emphasised the importance of rights of access to justice in the context of sanctions against those suspected of direct or indirect involvement in terrorist activities, finding that such rights may not be displaced, within the European constitutional order, even by a Chapter VII resolution of the Security Council.
Rights of access to justice have again been traditionally viewed as obligations owed by states to each other, in respect of individuals, rather than rights owed to individuals. International human rights law, which is premised to some extent on a distrust of the treatment of individuals by states and governments, tends to be similarly distrustful of mechanisms which would leave the enforcement of human rights entirely in the hands of those same states and governments, and as noted having a means of enforcement is often closely associated with the possession of a legal right.
The idea of access to justice is having a range of further effects on private international law rules on jurisdiction. Traditionally, such rules have focused on avoiding two potential harmful outcomes which could be caused by exorbitant regulation — conflicts with foreign states, and unfairness to defendants. These objectives are achieved through constraining the exercise of jurisdictional power by states, thus conceiving of jurisdiction as a matter of limited state discretion. Increasingly, however, the counter-balancing concern of ensuring access to justice for claimants, conceiving of jurisdiction as a matter of individual right, is playing an important role in private international law.
This may be illustrated by the Legislative Proposal, published by the European Commission on 14 December , for reforming the Brussels I Regulation on Jurisdiction and the Recognition and Enforcement of Judgments. It may be anticipated that a forum of necessity rule would form a part of any future proposals on these questions within the European Union.
At the international level, the Convention Against Torture imposes an obligation of access to justice on state parties in relation to victims of torture. This obligation is subject to a disagreement as to whether it is limited to acts of torture committed in the territory of the forum state, or possibly by or against nationals of the forum state. A national and resident of State A, a state which does not adhere to the rule of law, seriously injured by the brother of the President, subsequently fleeing in fear to State B, might have no possibility to claim damages under traditional jurisdictional grounds.
In this context, the courts of State B might exercise forum of necessity jurisdiction based on the subsequent residence of the claimant in their territory. Forum of necessity jurisdiction in this form is a secondary or subsidiary basis for exercising regulatory authority. In either case, such a ground of jurisdiction goes clearly beyond traditional international grounds, in service of enhancing individual access to justice. The second effect of access to justice on private international law is in the context of jurisdictional discretion in legal systems which accept such a discretion, such as those in the common law tradition — the question of whether a court will in fact exercise adjudicatory authority.
While this discretion is consistent with the traditional view of jurisdiction as a state right, the increasing influence of access to justice as an international requirement suggests a shift toward viewing jurisdiction as an obligation. English courts, for example, have increasingly considered the availability of an alternative forum before which the claimant can practically achieve justice to be one of the central questions in exercising the forum non conveniens discretion.
The effect of the development of principles of access to justice in international law also has implications when it comes to prohibitive rules on jurisdiction in the form of the immunities recognised in international law which may be general state immunity, the personal immunity of heads of state and other senior governmental officials, or the immunity of diplomats, consular officials or representatives of or to international organisations.
The development of principles of access to justice, however, requires a state to exercise its jurisdictional powers, and perhaps to expand those jurisdictional powers as a matter of domestic law to encompass internationally permitted grounds for jurisdiction, or even to go beyond traditional territorial or nationality-based jurisdiction. It has long been debated whether these considerations should also affect or override those of state immunity, particularly where the right of access to justice arose from a violation of a peremptory norm of international law.
Where both come into play, the effect is that states must give immunity when required by international law, but must not go beyond what is required by international law — they must otherwise exercise their jurisdiction. At least where state immunities are involved, the law of jurisdiction has become less of a discretionary field and more of a tightrope walk.
The idea that individuals have a directly enforceable right of access to justice, explored here in a variety of contexts, has implications for the idea of jurisdiction in international law. It implies that jurisdiction is no longer exclusively a right of states, or even an obligation owed by states to each other, but is at least to some extent a matter of individual right, that is, an obligation owed to individuals.
This would represent a fundamental challenge to traditional conceptions of jurisdiction, one which cannot be met simply by an enlargement of the recognised grounds for the exercise of state jurisdiction. If this were to be accepted, rules of jurisdiction in international law could not continue to be characterised purely as rules regulating the co-existence of sovereign states, seeking to minimise overlapping exercises of their authority. This analysis of the challenges presented to the traditional understanding of jurisdiction in international law by the increasing focus on individual rights may be taken a step further through consideration of another important development in domestic rules of private international law jurisdiction and choice of law.
This is, however, something of a legal fiction, and in other cases jurisdiction may be based only on a choice of court clause in a contract which one party subsequently refuses to accept, recognise or perform, a situation which cannot be so easily subsumed under existing jurisdictional principles. Historically, party autonomy has been viewed as a problem for theorists who have sought to reconcile rules of private international law with public international law.
If jurisdiction in public international law is as it has been traditionally viewed about state rights and powers, how can individuals give or take away the powers of states? Party intentions are, in this view, merely a factual connection on which states have decided to rely in determining the forum or the applicable law. But it is not clear whether even this expansion provides a convincing explanation of what appears to be state recognition of the autonomy of private parties, rather than a contingent choice by states to give effect to party intentions.
Party autonomy is thus defined as a limited choice between those jurisdictional powers recognised by and between states — a position which balances recognition of state sovereignty and individual autonomy. Other states have not adopted such a restrictive view, and even those states which did initially take a restrictive approach have tended to move away from it. Article 3 of the Rome I Regulation and Article 23 of the Brussels I Regulation are not rules determining priority between other grounds of choice of law or jurisdiction: they trump the general rules of choice of law or jurisdiction based on territorial or personal connections.
Such grounds continue to apply, but only in default of party choice. Party autonomy in this view is not merely another accepted basis of jurisdiction, it is a new jurisdictional ground with priority over the others. Because jurisdiction based on a choice of court agreement thus generally requires no other connection between the parties or their dispute and the state asserting jurisdiction, and a choice of applicable law similarly may be entirely independent of the parties or the subject matter of their dispute, some private international lawyers have traditionally viewed party autonomy as indicating that the only limits on the national regulation of private international law are those concerned with private justice or fairness — concerns which are met if the defendant has freely agreed in advance to the jurisdiction or law, even if there are no other objective connections.
If a state exercises jurisdiction or applies its law in civil proceedings based purely on consent by the parties, this is difficult to reconcile with the traditional public international law requirement that jurisdiction must be justified by a substantial objective connection, typically territoriality or nationality. Faced with this argument, it might seem that there are only two alternatives: first, rejecting the idea that private international law is about the allocation of regulatory authority between states denying any connection between public and private international law, thus rejecting the application of public international law jurisdictional rules to civil disputes, leaving them unrestricted except under national law , or second, making unrealistic arguments against party autonomy, a response notoriously taken under the First Restatement of Conflict of Laws.
The broader developments in international law examined here provide a simpler explanation. Party autonomy provides a further demonstration of an evolution which incorporates the idea of jurisdiction as a matter of individual right. The right to be subject to jurisdiction only in accordance with traditional international law limitations is a right which may be waived, not only by states, but by individuals themselves.
Almost universally, states have accepted that individuals may confer adjudicative jurisdiction on a state of their choice, and may also, by making that choice exclusive, detract from the jurisdiction that other states would ordinarily be entitled to assert over them. These developments are compatible with a view of the international system in which states and individuals are both recognised as, at least to some extent, sovereigns.
This does, however, require accepting an active role for individuals in questions of the jurisdictional power of states. A further fundamental issue concerning party autonomy should be noted, although it is beyond the scope of this article. There is also very widespread agreement among states — principally in the form of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards — that parties should be free to grant exclusive jurisdiction over their private disputes to non-state methods of dispute resolution, such as arbitral tribunals, to the at least partial exclusion of state judicial jurisdiction.
This development is subject to two contrasting and incompatible readings, each widely adopted and heavily contested.
The first is that it simply reflects the acceptance by states of arbitration as a form of alternative dispute resolution, backed up by state courts, but lacking any normative power of its own. The second is the more radical proposition that it implies the acceptance by states of a non-state form of ordering, alongside and competing with national courts — that arbitral tribunals are privately constituted courts, sometimes even applying privately constituted non-state private law.
If it becomes accepted that private parties can make laws with a status equal to those of states, then there may be little doubt that they possess a form of sovereignty. Whether this is indeed taking place remains one of the great contested issues of the international legal order.
Individuals have traditionally been considered passive objects of international legal regulation, which is analysed exclusively as a matter of state right or power based principally on links of territory or personal identity. This approach has been reflected in domestic rules of jurisdiction as a matter of private international law, which similarly have approached jurisdiction principally as a question of territorial or personal control.
At both the international and national level, these approaches are under challenge and ripe for reconceptualisation. Prescriptive and adjudicative jurisdiction at the international level is, in a variety of contexts, accepted as a matter of obligation between states rather than state rights — the approach to jurisdiction needs to be reconceived not merely as a ceiling, but also as a floor.
Some states take the view that access to justice may even require exercising forum of necessity jurisdiction if no other forum is available for the claimant, even if there is no connection between the state and the parties or their dispute which would justify jurisdiction on traditional grounds. Further, there is widespread recognition that jurisdiction may be at least partially conferred on states and withdrawn from states, by private parties in civil or commercial matters, through the exercise of party autonomy.
All these developments appear to signify a shift in the status of individuals in relation to jurisdiction at both international and national levels, from passive objects of international law regulation to active rights-holders. The rules on jurisdiction in international law should thus be rethought as concerned not only with state rights but also with state responsibilities — a combination of state rights, obligations and prohibitions as well as individual rights which reflects the more complex reality of modern international law.
Of course it remains true that it is states that have recognised these rights and perhaps even conferred them on individuals, and an explanation may be made of this phenomenon in derivative terms which fit within a model of international law in which states retain their traditional position as exclusive sovereigns, and international law is merely concerned with relations between sovereign states — that individuals are, for example, merely exercising the contingently delegated authority of states, which could also be taken away.
Courts themselves have often striven to find such explanations, in an effort to accommodate both individual rights and state sovereignty. But the recognition of the individual in international law reflects both the moral strength of individual claims to justice and autonomy and the reality of the power wielded by private actors in protection of their property and interests. In practical terms, it has become difficult for any state wishing to engage with the international community to ignore individual rights of access to justice, or the powers of commercial parties to choose the laws and forums under which their relationships are regulated.
Individual personality and autonomy has become entrenched in reality, if not yet entirely in theory. The rules giving effect to choice of law clauses, choice of court agreements, and arbitration agreements may take the form of national or supra-national for example, EU laws or treaties, but it hardly seems realistic to suggest that they could be repealed or repudiated given the power and influence of the corporations which rely on these rules remembering that, at least according to one study, there are more corporations than states in the list of the largest economies in the world , not to mention the arbitration and litigation industries which depend on them.
In any event, while there remain points of controversy concerning the limits of party autonomy, there is little or no sense that party autonomy as a principle is merely contingent. These phenomena suggest an important development in the conception of jurisdiction, and the limits of state sovereignty, but one which has received insufficient attention in the international law literature.
- Purity of Blood.
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- Venom (Venom, Book 1).
The issues which arise in the context of jurisdiction are in many ways a microcosm of one of the great challenges facing international law — how to move beyond the traditional dominance of states, to the reconciliation of a range of normative interests, from individual, to state, to international society as a whole. In law, as in science, a theoretical model may only be stretched so far in response to evidence before a paradigm shift occurs, replacing the basic assumptions of the system with a new set of foundational principles. But descriptive economy is not the only value at stake in choosing a theoretical perspective.
Law and the social sciences are fundamentally different from the natural sciences in that the adoption of a theoretical perspective does not merely describe, but may also change its subject. The move from Newtonian to relativistic physics did not change the reality of the world, it simply described it better. But the development of classical international law did not merely describe movements in international relations, it has helped to shape them by shaping the thinking and behaviour of the actors who in turn influenced events.
The choice of a theoretical paradigm in law is not only a question of its descriptive accuracy, but also a question of its normative implications. This leaves us with perhaps the most fundamental question — a question beyond the scope of this article — whether or not the transformation in jurisdiction described in this paper is desirable. Not all change is progress.
Recognising individual jurisdictional powers might embrace not just access to justice for victims of human rights violations, or freedom for individuals to choose which system of law should govern their personal relations, or freedom for companies doing business internationally to choose the most appropriate or efficient legal order to govern their relations, leading to potentially healthy jurisdictional competition.
The recognition of jurisdictional autonomy may also provide a means through which individuals or markets evade the regulatory influence of states and the protection of national public interests — concerns which are particularly prevalent in the rights granted to foreign investors whose complaints are heard by international arbitral tribunals, largely applying international not national law , and in the scope of recognition of party autonomy. It must also be remembered that the traditional jurisdictional rules of international law were themselves developed with the protection of certain values and interests in mind — for example, to reduce regulatory conflict, for the sake of the peaceful coexistence of states.
An increase in the range of jurisdictional grounds in international law might serve the interests of individuals in achieving access to justice, but overlapping jurisdiction between states may also give rise to systemic conflict that outweighs the benefits provided to particular claimants. As Judges Higgins, Kooijmans and Buergenthal noted in their Joint Separate Opinion in the Arrest Warrant Case: One of the challenges of present-day international law is to provide for stability of international relations and effective international intercourse while at the same time guaranteeing respect for human rights.
The difficult task that international law today faces is to provide that stability in international relations by a means other than the impunity of those responsible for major human rights violations. I would like to record my gratitude to the organisers of each event and to the Editors of the British Yearbook of International Law. There are, moreover, certain indications that a universal criminal jurisdiction for certain international crimes is clearly not regarded as unlawful. Jacobs for a paper entitled: "Towards community action on the law of strikes?
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