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Netherlands Yearbook of International Law 2016 pp 49–82Cite as

Territory in the Law of Jurisdiction: Imagining Alternatives

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Part of the book series: Netherlands Yearbook of International Law ((NYIL,volume 47))

Abstract

Territory is central to the doctrine of international jurisdiction. However, the use of territory as the jurisdictional linchpin is a political choice, the result of a confluence of historically specific political, material, epistemic, and above all mapping practices. The political contingency of territory begs the question whether alternative, non-territorial jurisdictional concepts could be contemplated. In this contribution, community, temporality, and justice are explored. The territorial imbrications of these jurisdictional alternatives are acknowledged, but it is highlighted how territory can in fact be re-conceptualized in the service of ‘its others’. Opting for the ‘others’ and for a novel conceptualization of territory remains a political choice. However, the political character of jurisdiction is not something to lament, but rather to celebrate, as it creates opportunities for a variety of political actors to have an impact on the actual application and construction of the un(der)determined notions of jurisdiction and territory, and ultimately on the modes of exercise of public authority. The salience of these theoretical ideas is exemplified by applying them to the case of transnational human rights litigation against corporations, a manifestation of socio-legal globalization that encapsulates the key role played by jurisdiction in negotiating claims of authority.

Professor of Public International Law, Utrecht University. The research which resulted in this publication has been funded by the European Research Council under the Starting Grant Scheme (Proposal 336230—UNIJURIS) and the Dutch Organization for Scientific Research (NWO) under the VIDI Scheme (No. 016.135.322).

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Notes

  1. 1.

    Landauer 2014, at 32.

  2. 2.

    Landauer was in fact responding to a published lecture delivered by Daniel Bethlehem , titled ‘The End of Geography: The Changing Nature of the International System and the Challenge to International Law’, in which Bethlehem, while observing that state jurisdiction ‘is largely manifested in territorial terms’ (Bethlehem 2014, at 14), called for a more flexible conception of jurisdiction termed ‘deemed jurisdiction’, which, especially in cyberspace, would ‘move the competence that is asserted closer to the technical and away from the political’. Note that the notion of ‘the end of geography’, as a consequence of globalization, has been around in political science circles for some time. See, notably, Greig 2002.

  3. 3.

    Shakespeare 1623. See also John H Patterson : ‘Only fools and dead men do not change their minds. Fools will not and dead men cannot’.

  4. 4.

    See more at length Treasure 2011.

  5. 5.

    There is in fact a lively literature on what we can learn from doctors, especially in business studies. See, e.g., Nohria 2012.

  6. 6.

    Cf. Dorsett and McVeigh 2012, at 40 (submitting that ‘sovereign territorial jurisdictions provide the means of organizing relations between laws’).

  7. 7.

    Kaushal 2015, at 781 (arguing that ‘jurisdiction locates questions about state power in quotidian legal practice while sovereignty locates them in political theology’).

  8. 8.

    Douzinas and Nead 1999, at 1.

  9. 9.

    Ibid.

  10. 10.

    Bartelson 2014, at 10.

  11. 11.

    Ibid., at 69.

  12. 12.

    Kaushal 2015, at 788.

  13. 13.

    Valverde 2009, at 141 and 144 (writing that ‘the governance of legal governance is the work of jurisdiction’, and that ‘jurisdiction sorts the where, the who, the what, and the how of governance’).

  14. 14.

    Elden 2013, at 328.

  15. 15.

    Sack 1983, at 55.

  16. 16.

    E.g., Wendt 1999.

  17. 17.

    Dorsett and McVeigh 2012, at 40: ‘The traditional formulations of international law are both conceptually and institutionally organized around the forms of the sovereign territorial state.’

  18. 18.

    E.g., Hirst 2003, at 45; Ryngaert 2015a, at 49. In its Report on Extraterritorial Jurisdiction (2009), the International Bar Association rather unambiguously stated that ‘[t]he starting point for jurisdiction is that all States have competence over events occurring and persons … present in their territory.’ International Bar Association 2009. On occasion, writers may reserve some room for the nationality principle as well. Oxman 2007, para 11.

  19. 19.

    Compare Mann 1984, at 20 (arguing that there exists merely a terminological difference between sovereignty, territoriality, and the principle of non-intervention).

  20. 20.

    Island of Palmas Case (Netherlands v United States of America), Permanent Court of Arbitration, Arbitral Award, Case No. 1925-01, 4 April 1928, at 838 (‘Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State’).

  21. 21.

    Ryngaert 2015a, at 36; Buxbaum 2009, at 668.

  22. 22.

    Mann 1964, at 47.

  23. 23.

    The law of jurisdiction evolves on the basis of action and reactions, with the latter—or the absence thereof—determining the legality of the former. See Akehurst 1975, at 176. Protest is typically couched in the language of extraterritoriality. E.g., comment c to para 442(1)(c) of the Restatement (Third) of US Foreign Relations Law (1987), discussing European states’ reactions to US discovery orders for the production of documents located within European states’ territory (American Law Institute 1987).

  24. 24.

    Vagias 2014, at 6–7; Lowe and Staker 2010, at 322; Ryngaert 2009.

  25. 25.

    Morrison et al. v National Australia Bank Ltd. et al., Supreme Court of the United States, Opinion, 561 U.S. 247, 24 June 2010, at 266–269.

  26. 26.

    Case of the SS Lotus (France v Turkey), PCIJ, Judgment, 27 September 1927 (‘Lotus’), para 46.

  27. 27.

    A close reading of the judgment reveals, however, that this may not be what the Court actually intended. Indeed, it also held that ‘in all systems of law the principle of the territorial character of criminal law is fundamental’, and that ‘the exclusively territorial character of law relating to this domain constitutes a principle which, except as otherwise provided, would ipso facto, prevent States from extending the criminal jurisdiction of their courts beyond their frontiers’). Lotus, at 20.

  28. 28.

    Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), ICJ, Judgment, 5 February 1970, para 105. Compare Case concerning the Arrest Warrant (Democratic Republic of the Congo v Belgium), ICJ, Merits, Judgment, 14 February 2002, Separate Opinion of President Guillaume , para 15 (‘The adoption of the United Nations Charter proclaiming the sovereign equality of States, and the appearance on the international scene of new States, born of decolonization, have strengthened the territorial principle’).

  29. 29.

    American Society of International Law (1935) Draft Convention on Jurisdiction with Respect to Crime, American Journal of International Law 29:439–442 (‘Harvard Draft Convention’)

  30. 30.

    de Vattel 1710, para 84 (emphasis added) (‘The sovereignty united to the domain establishes the jurisdiction of the nation in her territories, or the country that belongs to her. It is her province, or that of her sovereign, to exercise justice in all the places under her jurisdiction, to take cognisance of the crimes committed, and the differences that arise in the country’).

  31. 31.

    Elden 2013, at 36, fn 149, also writing that ‘jurisdiction inheres in a territorio […] but a territorium has its own boundaries’ (fn 148). Note that in Baldus’ time—characterized by city-states - the concept of state sovereignty was not fully developed yet, so that Baldus may possibly not be considered as the ‘father’ of the contemporary paradigm of exclusive jurisdictional sovereignty of the state.

  32. 32.

    Maier 1996, at 65.

  33. 33.

    See Langer 2011.

  34. 34.

    E.g., Article 2(1)(a) of the Dutch International Crimes Act. Territory also informs the operation of the principle of aut dedere aut judicare , which often constitutes the treaty basis for ‘universal jurisdiction ’. E.g., Article 5(2) (‘Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph I of this article [these are the States who can exercise jurisdiction on the basis of another permissive principle].’ The operation of this principle—extradite or prosecute —logically requires territorial presence, as the custodial state cannot extradite a person whom it has not first arrested on its territory.

  35. 35.

    See Ryngaert 2015a, at 77–99, for an overview of the variety of assertions made by states under the territoriality principle.

  36. 36.

    This argument is made more in particular by authors dealing with transnational computer crime and data protection violations, which take place in a largely virtual, de-territorialized sphere. Svantesson 2015.

  37. 37.

    Grotius , for instance, defined jurisdiction as the authority exercised over ‘two subjects, primarily persons’, and only secondarily refer to ‘the place, which is called territory’ as the relevant jurisdictional nexus. Elden 2013, at 238, fn 230.

  38. 38.

    Ruggie 1993.

  39. 39.

    Branch 2011, 2013.

  40. 40.

    Abass 2014, at 18–20. This classic idea of allocating acts and events to just one sovereign can notably be found in the 1908 US Supreme Court judgment in the American Banana antitrust case, where the Court held that ‘[t]he general and almost universal rule is that the character of an act as lawful or unlawful must be determined wholly by the law of the country where the act is done’, citing in this respect the principles of justice and non-interference. American Banana Co. v United Fruit Co., 213 US 347, 26 April 1909, at 356.

  41. 41.

    Svantesson 2015, at 69–70, suggesting as jurisdictional principles, instead of territoriality, connections, interests, and reasonableness (at 74), but reasoning mainly from a cyberspace perspective. See also Schultz 2008, at 815 (rejecting the application of the territorial effects doctrine to cyberspace).

  42. 42.

    Ryngaert 2015b; E.g., in accordance with its Aviation Directive (Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community, [2009] OJ L 8/3 (‘Aviation Directive’)), the EU considers a foreign aircraft’s departing from, or landing at an aerodrome located within its territory, as a sufficient territorial nexus for the application of EU law to the entire flight trajectory, including outside EU airspace. The Court of Justice of the European Union has found the approach to be in keeping with the territoriality principle under customary international law, see Case C-366/10: (Air Transport Association of America and Others v Secretary of State for Energy and Climate Change), ECJ Grand Chamber, Judgment, ECR I-13755, 21 December 2011 (‘Air Transport Association of America and Others’). Also, in accordance with the 1982 United Nations Convention on the Law of the Sea, 1833 UNTS 3, it is the port state, meaning the state whose ports are visited by a vessel, who may exercise specific legislative and enforcement powers over the vessel, in accordance with Articles 211(3) , 218 , and 219 of the Convention. Furthermore, Article 4(1)(a) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L 281/31 provides that ‘Each Member State shall apply the national provisions it adopts pursuant to this directive to the processing of personal data where: (a) the processing is carried out in the context of the activities of an establishment of the controller on the territory of the Member State […]’ (emphasis added).

  43. 43.

    Locke 2012, para 119.

  44. 44.

    Brilmayer 1987; World-Wide Volkswagen Corp. v Woodson, Supreme Court of the United States, Opinion, 444 US 286, 21 January 1980; International Shoe v State of Washington, Supreme Court of the United States, Opinion, 326 US 310, 3 December 1945; Goodyear Dunlop Tires Operations, S.A., et al. v Brown et UX., co-administrators of the Estate of Brown et al., Supreme Court of the United States, Opinion, 564 U.S. 915, 27 June 2011; Daimler AG v Bauman, Supreme Court of the United States, Opinion, 134 S. Ct. 746, 14 January 2014.

  45. 45.

    Howse and Regan 2000, at 374.

  46. 46.

    Radon 2004, at 199.

  47. 47.

    Bartelson 2014, at 30 (questioning whether boundaries and the restrictions they pose are democratic and noting that ‘everyone is subjected to some sovereignty authority simply by virtue of inhabiting some portion of planetary space, irrespective of whether they have consented to subjection or not’).

  48. 48.

    Brilmayer 1987, at 309 (submitting that ‘the tacit consent argument turns on prior notions that a state has a right to regulate within its own boundaries’).

  49. 49.

    Shah 2012, at 67.

  50. 50.

    Agnew 1994.

  51. 51.

    Shah 2012, at 71.

  52. 52.

    Branch 2011, at 9–10 and 30.

  53. 53.

    Lindahl 2010, at 34 and 39. See also ibid., at 36 (‘A legal space is never only a geographical surface […] but rather a concrete articulation of normative and physical dimensions’).

  54. 54.

    E.g., the division of Charlemagne’s empire into three parts in the early medieval Treaty of Verdun (843 AD) ‘was framed in terms of jurisdictions and revenues, not territory per se’. Branch 2013, at 25.

  55. 55.

    Kassan 1935, at 240. We can find the roots of the personality principle in these allegiances. One could thus safely state that the personality principle is older than the territoriality principle. See also Lowe and Staker 2010, at 323. Note that Morgan , one of the fathers of modern anthropology, traces only two sorts of human governance : governance based on territory, and governance based on community (Morgan 1877).

  56. 56.

     E.g., Maffesoli 1995.

  57. 57.

    Berman 2005.

  58. 58.

    See, at length, Berman 2012.

  59. 59.

    E.g., Kaushal 2015, at 773.

  60. 60.

    Valverde 2009, at 154 (emphasis added).

  61. 61.

    In her Chronotopes monograph, she does apply temporality however to a number of municipal case studies, notably ‘the honour of the Crown’ in Canadian law (in respect of indigenous rights), feminism, and security. Valverde 2015, Chaps. 4–6.

  62. 62.

    Valverde 2009, at 155.

  63. 63.

    See, e.g., Brown Weiss 2007; Churchill and Freestone 1991.

  64. 64.

    See, e.g., Cameron and Abouchar 1991; McIntyre and Mosedale 1997.

  65. 65.

    Ambrus and Wessel 2015.

  66. 66.

    The application of the EU’s Aviation Directive was limited to emissions generated within EU airspace, see Regulation (EU) No 421/2014 of the European Parliament and of the Council amending Directive 03/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community, in view of the implementation by 2020 of an international agreement applying a single global market-based measure to international aviation emissions, [2014] OJ L 129/1.

  67. 67.

    Air Transport Association of America and Others, para 125 (‘In laying down a criterion for Directive 2008/101 to be applicable to operators of aircraft registered in a Member State or in a third State that is founded on the fact that those aircraft perform a flight which departs from or arrives at an aerodrome situated in the territory of one of the Member States, Directive 2008/101, inasmuch as it extends application of the scheme laid down by Directive 2003/87 to aviation, does not infringe the principle of territoriality or the sovereignty which the third States from or to which such flights are performed have over the airspace above their territory, since those aircraft are physically in the territory of one of the Member States of the European Union and are thus subject on that basis to the unlimited jurisdiction of the European Union’) (emphasis added).

  68. 68.

    Each state would have territorial jurisdiction as soon as a significant portion of the activities constituting that offence takes place on its territory. See Libman v The Queen, Supreme Court of Canada, Judgment, 2 SCR 178, 10 October 2015 (establishing jurisdiction over conspiracy to commit fraud arising out of the conduct of an individual’s Toronto telephone sales solicitation room, from which sales personnel telephoned U.S. residents and attempted to induce them to buy shares in two Central American mining companies, with promotional material being mailed from Central America). For a US due process analysis of transnational conspiracy and territorial jurisdiction, see Althouse 1983.

  69. 69.

    Wijziging van het Wetboek van Strafrecht en het Wetboek van Strafvordering in verband met de verbetering en versterking van de opsporing en vervolging van computercriminaliteit (computercriminaliteit III) (Proposal of Amendment of the Dutch Criminal Code and the Code of Criminal Procedure relating to the improvement and strengthening of the investigation and prosecution of cybercrime), https://www.eerstekamer.nl/9370000/1/j9vvhwtbnzpbzzc/vk0992hkwnxq/f=y.pdf, accessed 16 February 2016.

  70. 70.

    In re Warrant to Search a Certain Email Account Controlled and Maintained by Microsoft Corporation (Microsoft Corporation v United States of America), United States District Court for the Southern District of New York (S.D.N.Y.), 15 F. Supp. 3d 466, 2014 (allowing such warrants), United States Court of Appeal for the Second Circuit, No. 14‐2985, 14 July 2016 (disallowing them).

  71. 71.

    Dorsett and McVeigh 2012, at 137.

  72. 72.

    Arendt 1964.

  73. 73.

    Note that Arendt also theorized ‘new beginnings’ in other settings, notably as regards constitutional institutions. See Palonen 2012.

  74. 74.

    Arendt 1964, at 262–263.

  75. 75.

    Luban 2011, at 633.

  76. 76.

    In this sense, Arendt’s jurisdictional principle can be characterized as a hybrid of the passive personality and protective principle. See also ibid. (‘What Arendt had in mind was a connection entirely unique to the Jews and the state of Israel … The fanciful part is the claim that such jurisdiction is in any sense territorial’).

  77. 77.

    Arendt 1964, at 262. The community takes on a universal form, however, in her correspondence with fellow philosopher Karl Jaspers in 1960, i.e., prior to Eichmann in Jerusalem. (Arendt to Jaspers, 23 December 1960: ‘The only possibility seems to be to attach to the International Court at The Hague a criminal court for hostes generis humani that would be competent to try individuals regardless of nationality. As long as such a court does not exist, international law holds that any court in the world is competent—so why not Israel? Legally, Israel couldn’t even claim it isn’t competent.’), cited in Luban 2011, at 631–632; 1948 Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277.

  78. 78.

    Dorsett and McVeigh 2012, at 128

  79. 79.

    Compare Krisch 2014.

  80. 80.

    Brigham 2009, at 401 (emphasis added).

  81. 81.

    As neuroscientists have pointed out, human beings are visual beings indeed. Koch 2004, at 1107.

  82. 82.

    Cafaggi et al. 2013; Berman and Kaufmann 1978.

  83. 83.

    See more at length Callies and Zumbansen 2010.

  84. 84.

    Backer 2012, at 122 (arguing that non-state actor governance , while having a limited scope, cross national boundaries, thus yielding the consequence that ‘the old foundational notion of territoriality loses coherence as the marker par excellence of jurisdiction’).

  85. 85.

    Cf. ibid., at 98–100 (arguing that non-state actors cannot escape government, which keeps them like a dog on a leash, and thus that such actors operate in the shadow of hierarchy). See on state orchestration and facilitation of non-state regulation notably Abott and Snidal 2000.

  86. 86.

    Sassen 2006, at 378.

  87. 87.

    Sassen 2006, at 386. See on global cities also Sassen’s earlier work: Sassen 1991, 1994.

  88. 88.

    Sassen 2006, at 418.

  89. 89.

    Carpenter and Moss 2013.

  90. 90.

    Kaushal 2015, at 774.

  91. 91.

    Jackson 2007, at 315.

  92. 92.

    Bartelson 2014, at 69.

  93. 93.

    Buxbaum 2004, at 173.

  94. 94.

    Ibid., at 167: ‘a global problem can be recast in local terms, in order to take advantage of local political or social resources. The concept of scale is therefore a useful analytical tool in examining how global economic misconduct is situated before the courts of one particular country.’ Territorial courts are attractive as global dispute-resolution mechanisms especially when they are located in well-functioning states that have considerable regulatory and enforcement capacity, and are willing to construe their jurisdiction broadly. Such courts may exercise different forms of jurisdiction (territorial, personal, universal), but the important point is that they may offer an accessible, ‘downscaled’ forum where global legal-political struggles over jurisdiction can take place, in the absence of competent international courts.

  95. 95.

    Cf. Hakimi 2014.

  96. 96.

    Regulation (EU) 2015/757 of the European Parliament and of the Council of 29 April 2015 on the monitoring, reporting and verification of carbon dioxide emissions from maritime transport, and amending Directive 2009/16/EC [2015] OJ L 123/55.

  97. 97.

    Kaufmann and Weber 2011.

  98. 98.

    Scott 2014, at 90 (defining a measure as territorial extension where its ‘application depends upon the existence of a relevant territorial connection, but where the relevant regulatory determination will be shaped as a matter of law, by conduct or circumstances abroad’).

  99. 99.

    As John Brigham observed: ‘Jurisdiction regulates movement, where movement is the characteristic of modernity, first on foot, then by train, plane, and automobile over the countryside […]. Jurisdiction is about stasis or at least limitations on movement. It is about the reach of law, and it suggests the more physical qualities of place that law defines.’ Brigham 2009, at 382. In John Locke’s Second Treatise of Government (1689), we find one of the earliest modern expressions of this connection between movement and territorial jurisdiction: ‘anyone who comes to enjoy [the] land—whether through inheritance, purchase, permission, or whatever—must take it with the condition it is already under, namely, submission to the government of the commonwealth under whose jurisdiction it falls’. Locke 2012, para 120.

  100. 100.

    On the managerial approach to international law : Koskenniemi 2009, at 16–17 (characterizing ‘managerialism ’ as a governance rationality which suggests that international problems should be resolved by developing increasingly complicated technical vocabularies for institutional policy-making).

  101. 101.

    Bradford 2012; Kleizen 2015.

  102. 102.

    E.g., the European Commission has ‘stopped the clock’ as regards the immediate application of the Aviation Directive to foreign operators in the order to give a multilateral emissions reduction solution within the International Civil Aviation Organization a chance. See European Commission (2012) Stopping the clock of ETS and aviation emissions following last week’s International Civil Aviation Organisation (ICAO) Council, MEMO/12/854, 12 November 2012, http://europa.eu/rapid/press-release_MEMO-12-854_en.htm, accessed 9 January 2017.

  103. 103.

    Llewellyn 1930, at 251.

  104. 104.

    E.g., the Air Transport Association of America’s direct challenge of the EU Aviation Directive before the Court of Justice of the EU (Air Transport Association of America and Others); foreign states’ political protests against the reach of the Directive also after the CJEU’s handed down its judgment (e.g., US European Emissions Trading Scheme Prohibition Act 2011 (HR 2494); Joint Declaration of the Moscow Meeting on the Inclusion of International Civil Aviation in the EU-ETS; China and India also condemned the action as not respecting the principle of common but differentiated responsibilities, this protest however appears to be informed by the desire to protect trade interests rather than by the opinion that the jurisdictional assertion violates international law, in particular the principle of non-intervention, see de Baere and Ryngaert 2013.

  105. 105.

    Riles 2005.

  106. 106.

    Kaushal 2015, at 760.

  107. 107.

    Ibid., at 779.

  108. 108.

    Brigham 2009, at 382.

  109. 109.

    Valverde 2008, at 14 (submitting that a ‘merely technical analysis—such as those produced by appellate courts engaging in the work of allocating jurisdiction or policing its exercise—tends to reduce conflicts among competing powers/knowledges to a classificatory exercise of deciding what governing activity belongs in what drawer, a sorting process that obscures the incommensurabilities and the conflicts that see the under the surface in the most mundane of jurisdiction cases’). See also Liste 2014, at 14 (drawing attention to the ‘perspective on the little litigation nothings that renders that hidden politics of space visible’).

  110. 110.

    See, inter alia, Ford 1999, at 929.

  111. 111.

    ‘Almost anything that is organized territorially could be organized in some other way.’ Ford 2012, at 133; See also Berman 2005, at 1108 (arguing that nation-states with fixed territorial borders are not the only relevant jurisdictional entities).

  112. 112.

    Koskenniemi 1990, at 14.

  113. 113.

    Cf. Pessoa 2002: ‘Life is what we make of it. Travel is the traveler. What we see isn't what we see but what we are’.

  114. 114.

    Cf. Buxbaum 2009, at 635: ‘‘‘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’.

  115. 115.

    Kaushal 2015, at 786 (‘[J]urisdiction is not apolitical … It is robustly implicated in politics and sovereignty, part of the original constitution of the polis as well as its ongoing reconstitution’). (emphasis in the original).

  116. 116.

    Berman 2005, at 1126 (conceiving of jurisdiction as ‘the locus for debates about the appropriate definition of community and the articulation of norms’, constant search for balance).

  117. 117.

    Kennedy 2003, at 20 and 26.

  118. 118.

    Pahuja 2011, at 245–246 and 252.

  119. 119.

    Ibid., at 250–251 (submitting that the ‘critical instability of international law creates the possibility for a level of resistance and redefinition within the bounds of an international legality but is repeatedly contained by a rationality that operates in terms of a claim for the universality of particular categories, terms, and ideas’).

  120. 120.

    Cosmopolitanism can either refer to a jurisdictional order based on transnational community affiliation (e.g., technology-based or commercial communities, diasporas), as advanced by Paul Schiff Berman (see Berman 2012), or to an order referring to a global community, in which actors strive for humanity’s common good (justice).

  121. 121.

    The term ‘butterfly effect’ was coined by mathematician/meteorologist Lorenz to denote that small causes can have major (meteorological, e.g., hurricane) effects; see Lorenz 1963.

  122. 122.

    Cf. Valverde 2009, at 146 (‘Normative arguments about which scale is best make sense in concrete governance situations, in which one might indeed foresee the actual effects of choosing one scale over another, and thus make choices on the basis of concrete information. Without a specific, situated social/political issue whose practical implications can be examined, debates about scale can only be battles of abstractions’).

  123. 123.

    Transnational human rights litigation could be defined as litigation where victims and activists call on foreign courts to exercise their jurisdiction over violations committed overseas, sometimes by and against foreigners.

  124. 124.

    Liste 2014, 2016.

  125. 125.

    Kiobel v Royal Dutch Petroleum Co., Supreme Court of the United States, Opinion, 133 S.Ct. 1659, 17 April 2013 (‘Kiobel’). The presumption against extraterritoriality is a long-standing canon of statutory construction in the United States. See for the seminal case: Equal Employment Opportunity Commission v Arabian American Oil Co. et al., Supreme Court of the United States, Opinion, 499 U.S. 244, 26 March 1991.

  126. 126.

    Enneking 2012.

  127. 127.

    E.g., Alford 2014; Blaine 2014; Mora 2014.

  128. 128.

    Liste 2014, at 17 and 19.

  129. 129.

    Liste 2016, at 14–15 (citing the amicus briefs by Chevron et al., and BP America et al.) (emphasis added).

  130. 130.

    Ibid., at 11–14, discussing the amicus briefs of the US, Germany, and Argentina. Note that The Netherlands and the United Kingdom, by contrast, formulate a more conservative territorial argument in their amicus brief, which is undeniably informed by their being the home countries of the defendant Royal Dutch Shell.

  131. 131.

    Sassen 2006, at 418–420 (submitting that ‘territorial insertions in a foreign country denationalize rather than produce an extension of national territorial authority’ and describing ‘partial and often highly specialized formations centered in particular utilities and purposes’).

  132. 132.

    Alien Tort Statute, 28 U.S.C. § 1350 (‘ATS’) (‘The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States’).

  133. 133.

    In Sosa v Alvarez-Machain, the Supreme Court found that the ATS did not create a cause of action, but instead merely ‘furnish[ed] jurisdiction for a relatively modest set of actions alleging violations of the law of nations’ (Sosa v Alvarez-Machain, Supreme Court of the United States, Opinion, 542 U.S. 692, 29 June 2004, at 720). Such actions must ‘rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized’ (ibid., at 725) (emphasis added).

  134. 134.

    United Nations Office of the High Commissioner for Human Rights (2013) United Nations Global Compact, E-Learning, Module 2. http://human-rights-and-business-learning-tool.unglobalcompact.org/site/, accessed 17 February 2016.

  135. 135.

    Ruggie J (2008) Clarifying the Concepts of ‘Sphere of influence’ and ‘Complicity’, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, Eight Session of the Human Rights Council, UN Doc. A/HRC/8/16, 15 May 2008.

  136. 136.

    The concept for that matter echoes the medieval concept of ‘place’, viewed as jurisdictional influence radiating outward from a geographic center (a town, a fortress) to outlying areas and their inhabitants (Branch 2013).

  137. 137.

    This is provided that the US could establish personal jurisdiction over the defendant, on the basis of the latter’s minimum contacts with the US.

  138. 138.

    Kiobel v Royal Dutch Petroleum Company, United States District Court for the Southern District of New York (S.D.N.Y.), No. 02 Civ. 7618 (KMW) (HBP), 2010 WL 2507025, 21 June 2010. Shell’s parent corporation, however, operated an office in New York to manage its New York Stock Exchange listing. This was deemed sufficient to establish personal jurisdiction. The issue of personal jurisdiction was ultimately not before the US Supreme Court.

  139. 139.

    Note also that the international law of responsibility has taken a particular interest in the responsibility consequences of multiple tortfeasors causing the same harm; notably the concept of ‘shared responsibility ’. See on this notion Nollkaemper and Jacobs 2012.

  140. 140.

    See for the relevant jurisdictional judgments: Friday Alfred Akpan and Vereniging Milieudefensie v Royal Dutch Shell PLC and Shell Petroleum Development Company of Nigeria LTD, Hague District Court, ECLI:NL:RBDHA:2013:BY9854, 30 January 2013; and Hague Court of Appeal, ECLI:NL:GHDHA:2015:3587, 18 December 2015 (‘Akpan v Shell’).

  141. 141.

    Articles 2(1) and 60(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2001] OJ L12/1.

  142. 142.

    The courts applied Article 7 of the Dutch Code of Civil Procedure , which indeed provides for the joinder of cases in case of unity (‘samenhang’) of claims.

  143. 143.

    This does not mean that territoriality disappears entirely. It only implies that one claim can piggyback on another claim over which uncontroversial jurisdiction can be exercised, such as on grounds of territoriality or domicile.

  144. 144.

    The temporality lens donned here does not automatically make the claims actionable under the ATS, nor does it displace the presumption against extraterritoriality, as under US law, unlike under Dutch or European, courts should not only establish due process-based personal jurisdiction based on minimum links, but also subject-matter jurisdiction (does the claim fall within the substantive scope of the relevant statute?).

  145. 145.

    1933 Montevideo Convention on Rights and Duties of States, 165 LNTS 19, Article 1.

  146. 146.

    Valverde 2015, at 31 (defining critical theory as ‘distancing oneself from that scholarship which is imbricated with state power’).

  147. 147.

    I am particularly indebted to Mariana Valverde in this respect, who in Chronotopes magisterially argued that time should not be reduced to history, and drew attention to the temporal dimension of ‘human experience ’. Valverde 2015, at 38.

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    Cedric Ryngaert

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Ryngaert, C. (2017). Territory in the Law of Jurisdiction: Imagining Alternatives. In: Kuijer, M., Werner, W. (eds) Netherlands Yearbook of International Law 2016. Netherlands Yearbook of International Law, vol 47. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-207-1_3

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