Abstract
There is a strong intersection between risk, security and the law. Legal systems serve as an important way that risk – be it business risk or political risk – can be mitigated. The law is, however, far more effective at regulating financial contracts or measures affecting individuals than it is regulating the behaviour of states parties in the international system, where relative scale and power matter. All legal systems rely upon the authority of the court, and the ability of the court to impose sanctions on transgressing parties. This is why power and influence matter in international law: capable (and therefore powerful) states are able to resist or ignore international law and to ignore any sanction that might follow. Less powerful states are less able to do so. The strength of very capable nations – and the US provides the key example for this in the chapter – has such latent capabilities that they are able to impose their domestic law upon third countries: extraterritorialising their legal system. This chapter explores extraterritorialisation, emphasising the importance this concept is beginning to play in the international system, and can be foreseen to do so in the medium term. This chapter is divided into two main sections, covering first how we might choose to reframe political risk, and second, understanding of how law and political power intersects with international security.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Confirmation of empirical evidence and of hypotheses is subject to a great weight of academic material. The key critique of many academic disciplines is the weakness of the empirical data to the conclusion (see Bunge, 1967, pp. 315–328).
- 2.
If we look at chemistry, as a discipline, then we learn that maintaining equilibrium or stasis consumes far more energy than disequilibrium to the point where chemists assert that the natural order is that of disequilibrium.
- 3.
Bunge points out in his earlier work that historically drawn prediction has ‘little or no test value’ because we cannot test what would have happened in the absence of the forecast (Bunge, 1967, p. 93).
- 4.
Scientific realists would prefer the term ‘confirming’ to ‘validating’.
- 5.
This can be formally expressed for us to test as: P(a,c) = X [R(a) – R(c)]. (The equation is adapted from Bunge M (1998, p. 160.) That is power (P) is exercised by a over c, leading to the outcome X, when the resources of a are superior to c. And this common sense example, expressed formally, allows us to test it in relation to different scenarios.
- 6.
For example, In June 2003, a Spanish judge exercised jurisdiction based on the universality principle, over Ricardo Miguel Cavallo, a former Argentine naval officer, who was extradited from the UK to Spain pending his trial on charges of genocide and terrorism relating to the rule of the Argentinian Junta.
- 7.
For example, 1963 Tokyo Convention on Offences Abroad Aircraft, art 4, 1984 Torture Convention. The Alcoa case (US v. Aluminium Company of America and others, 1945, p. 416) decided by the US court in 1945, introduced the effects-based doctrine. The court somewhat contentiously considered it a ‘settled law’ that ‘any state may impose liabilities for conduct outside its borders that have consequences within its borders’ (US v. Aluminium Company of America and others 1945, p. 443).
- 8.
As per the ruling (Coard et al. v. the United States 1999, p. 37).
- 9.
For the full account of the evidence behind the penalties see US State Department (2011).
Bibliography
Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, General List Number 131 (International Court of Justice July 9, 2004).
Al-Skeini v the United Kingdom, 55721/07 (European Court of Human Rights 2011).
Attorney General of the Government of Israel v Eichmann, 36 ILR (District Court of Jerusalem 1961).
Brownlie, I. (2008). Principles of Public International Law, 7th edn. Oxford: Oxford University Press.
Bunge, M. (1967). Scientific Research II: The Search for Truth. Berlin: Springer.
Bunge, M. (1998). Social Science Under Debate. Toronto: Toronto University Press.
Case Concerning Armed Activities on the Territory of the Congo (DRC v. Congo), General List Number 116 (International Court of Justice December 19, 2005).
Coard et al. v. the United States, 10951 (Inter-American Commission on Human Rights September 29, 1999).
Corera, G. (2006). Shopping for Bombs: Nuclear Proliferation, Global Insecurity, and the Rise and Fall of the A.Q. Khan Network. London: Hurst and Company.
Dover, R., & Frosini, J. (2012). The Extraterritorial Effects of Legislation and Policies in the EU and US. Brussels: European Parliament.
Harris, D. (2010). Cases and Materials on International Law, 7th ed. London: Thomson Reuters.
Harvard Law Review (2010-11). Developments in the Law, “Extraterritoriality”. Harvard Law Review, 1226.
Hayek, F. (1964) The Theory of Complex Phenomena. In M. Bunge The Critical Approach to Science and Philosophy (pp. 332–349). London: MacMillan.
HM Government (2015). National Security Strategy and Strategic Defence and Security Review. London: Stationary Office.
Iran, North Korea, and Syria Sanctions Consolidation Act, s.1048 (2012).
Johnson, N. (2009). Simply Complexity: A Clear Guide to Complexity Theory. Oxford: One World.
Khalaf, R. (2016, January 20). John Kerry and Javad Zarif Set an Example in the Middle East. Financial Times.
Mizin, V. (2004). The Russia-Iran Nuclear Connection and U.S. Policy Options. The Middle East Review of International Affairs, 8(4).
Nusselein v Belgian State, ILR 17 (1950).
Ryan, B., & Mitsilegas, V. (2010). Extraterritorial Immigration Control: Legal Challenges. Boston: Martinus Nijhoff, Leiden.
Shaw, M. (2008). International Law. Cambridge: Cambridge University Press.
Sosa v. Alvarez-Machain, 542 US 692 (US Supreme Court 2004).
The Lotus Case, Ser.A, No. 10 (Permanent Court of International Justice 1927).
US State Department. (2011, May 24). US Department of State (24 May 2011), Seven Companies Sanctioned Under the Amended Iran Sanctions Act. Retrieved from State Department: http://www.state.gov/r/pa/prs/ps/2011/05/164132.htm.
US v. Aluminium Company of America and others, 44 F. Supp. 97; 148 F. 2d (US District Court of the Southern District of New York 1945).
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Copyright information
© 2017 The Author(s)
About this chapter
Cite this chapter
Dover, R. (2017). Risk, Security and International Law. In: Dover, R., Dylan, H., Goodman, M. (eds) The Palgrave Handbook of Security, Risk and Intelligence. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-53675-4_23
Download citation
DOI: https://doi.org/10.1057/978-1-137-53675-4_23
Published:
Publisher Name: Palgrave Macmillan, London
Print ISBN: 978-1-137-53674-7
Online ISBN: 978-1-137-53675-4
eBook Packages: Political Science and International StudiesPolitical Science and International Studies (R0)