The Extraterritoriality of Law

History, Theory, Politics

Daniel S. Margolies, Umut Özsu, Maïa Pal, Ntina Tzouvala

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351231978
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Questions of legal extraterritoriality figure prominently in scholarship on legal pluralism, transnational legal studies, international investment law, international human rights law, state responsibility under international law, and a large number of other areas. Yet many accounts of extraterritoriality make little effort to grapple with its thorny conceptual history, shifting theoretical valence, and complex political roots and ramifications.

This book brings together thirteen scholars of law, history, and politics in order to reconsider the history, theory, and contemporary relevance of legal extraterritoriality. Situating questions of extraterritoriality in a set of broader investigations into state-building, imperialist rivalry, capitalist expansion, and human rights protection, it tracks the multiple meanings and functions of a distinct and far-reaching mode of legal authority. The fundamental aim of the volume is to examine the different geographical contexts in which extraterritorial regimes have developed, the political and economic pressures in response to which such regimes have grown, the highly uneven distributions of extraterritorial privilege that have resulted from these processes, and the complex theoretical quandaries to which this type of privilege has given rise.

The book will be of considerable interest to scholars in law, history, political science, socio-legal studies, international relations, and legal geography.

Part I
What is extraterritoriality?

1
Ways of doing extraterritoriality in scholarship

John D. Haskell

Introduction

The international legal concept of extraterritoriality reflects some of the most pressing questions within the profession: the scope and legitimacy of juridical authority, the designation of relevant actors and actions, and the distribution of power within networks of global governance. The concept is a response to ‘real things’ happening in the world, but it also prefigures how we understand what is being viewed. In fact, it might be most concretely understood as a conceptual device within academic legal literature that organises argument and prioritises certain actors, themes, and styles of analysis – what we might think of as enacting a disciplinary or sub-disciplinary ‘sensibility’.¹ This is something altogether different from thinking about ‘ideology’ or ‘preferences’, and much closer to a grouping of interactional processes (e.g. conceptual, emotional, linguistic) that reinforce a specific way in which we think and speak about international law.² In other words, it signals an orientation somehow detached from an author’s political ideology and broader professional agendas or approaches. Thinking of ‘extra-territoriality’ as a particular kind of scholarly frame encourages us to understand the concept not as a description of the world that can be shown to be objectively true or false, but as a set of criteria developed within scholarly literature and governed by the social rules of the discipline and its literary conventions. My sense is that we tend to conflate writing and politics, and mistake stylistic posture for polemical stance. By contrast, to think of international law doctrines (such as extraterritoriality) from an epistemic perspective means that we pay attention to the internal construction of disciplinary scholarly production. This immediate structural dimension of extraterritoriality – the actual speakers and the argumentative logic they inhabit – is the focus of this chapter.³

Technical approaches to extraterritoriality

Two approaches are generally adopted by international law scholars with respect to the theme of extraterritoriality: technical analysis and (historical and theoretical) contextualisation. When adopting a technical legal approach to extraterritoriality, one often presents oneself as apolitical or operating in accordance with the law, with the focus being placed on strict interpretation of traditional sources in order to derive the most correct possible legal outcome. Contributors to this literature tend to view themselves as offering pragmatic and realisable solutions to real-world challenges facing courts and policymakers. Historical dynamics are usually kept to a minimum, sources are drawn primarily from international law materials (e.g. cases, legal scholarship, legislation), the importance of theory is downplayed, and a relatively shared set of rhetorical tendencies crops up. The role of the scholar here is that of the professional lawyer demonstrating agility while balancing complex legal arguments, policy concerns, and party interests. It is common for the author to select a particular legal regime (e.g. antitrust law, criminal law, human rights law) or discuss multiple legal contexts, the choice of which may indicate different arguments and preferences. Usually, the literature offers some normative suggestions, but these focus upon interpretative reform rather than implementation and organisational strategy.

We might begin to unpack these characteristics by considering examples of this sensibility at work. ‘There is no grand revolutionary theory driving this essay’, begins Anthony Colangelo, ‘my principal aim instead is to roll up my sleeves and dig into the messy area of law with analytical rigour’.⁴ Legal reasoning is whitewashed of bias in what looks like an almost American Protestant work ethic (which often goes by ‘pragmatism’). Here there is no need for further contextualisation beyond the purity of an honest day’s work – the text is meant to speak directly to the believer and ideally with the politics of the world at a distance. Reasoning, not context, is paramount, providing an avenue for the legal scholar to ‘dive below the surface of a superficially fractured … jurisprudence and harmonise … doctrinal discord’.⁵ Scholars typically go about this through a series of rehearsed moves: defining extraterritoriality, identifying key cases and statutory backgrounds, and compartmentalising its application into discrete legal contexts (e.g. criminal law, competition law, environmental law).⁶ ‘Superficially, extraterritorial jurisdiction is easy to define’, explains Jennifer Zerk, ‘[b]ut in applying it to different regulatory areas, problems often emerge, especially in relation to abstract entities’.⁷ To overcome these problems, Zerk suggests that we ‘imagine a matrix … as a way of helping to understand and categorise the diverse ways in which states can and do regulate … a matrix with two rows and three columns … [which in turn] yields six cells – six types of “extraterritorial” form, each offering a range of options. Not all are equally likely to trigger objections under all circumstances’.⁸ Different scholars, different classification strategies, but the pattern holds remarkably consistent. ‘It is crucial’, writes a senior partner from a large Washington DC-based law firm, ‘to understand the extraterritorial scope and application of the Sherman Act’, which he claims will require a ‘review [of] the relevant statutory background … [and] focus on how the DOJ, the FTC, and the judiciary have interpreted the … direct, substantial, and reasonably foreseeable effect test’.⁹

Two further characteristics come to light when reading such technically oriented scholarship. First, we can begin to see that the literature is constituted around a set of related contradictions, which are then quickly suppressed. The first contradiction: how can it be that international law is ‘splintered, inconsistent, and conceptually confused’ in regard to extraterritoriality while also providing precisely the set of tools necessary for coherent and consistent legal reasoning?¹⁰ This unresolved tension allows scholars to claim that their own interpretation is more reasoned than the various available counter-interpretations. But naturally they do not actually imagine that their statement is the final word on the matter. Reason is unproblematically viewed as somehow both settled and indeterminate, and cuts a curious and tragic figure. Who is this author, who toils for long hours to make the most convincing case, whose argumentative logic is premised on the closure implicit in correct reasoning, and yet who also knows that whatever their argument, it will not lead to closure or an end of debate over extraterritoriality?

But there is a second contradiction: how can it be that there is a strong presumption against extraterritoriality in many spheres of law, and also, at the same time, that it might often be reasonable or necessary to apply extraterritorial jurisdiction? Put differently, scholars will often acknowledge the importance of recognising the sovereign’s power over territorial jurisdiction while juxtaposing it with an awareness that global governance is more complex and multifaceted, and that this condition therefore requires states to reach beyond their borders to address domestically felt effects.¹¹ By which criterion might we determine how to balance competition between state interests? If there is no clear and predictable discretionary standard, then it begins to look like the law on extraterritoriality generally follows great-power politics.¹²

This seems like an obvious quandary. However, it is usually swept under the rug by recourse to dense mapping exercises that chart different applications of extraterritoriality depending upon the chosen legal context (e.g. bankruptcy law, competition law, criminal law, environmental law), or through deference to the ‘spirit’ of international law, an appeal to the values of the international community, or through reliance on some characterisation of comity.¹³ Because ‘Parliament did not intend to act inconsistently with the UK’s international law obligations in the light of this broader context’, writes Ralph Wilde, ‘it is necessary to interpret the Human Rights Act so as to apply extraterritorially in the same way as the equivalent areas of human rights law operate on the international level’.¹⁴ For Wilde, the ‘broader context’ provides a roadmap for the UK government to adopt a wider application of human rights jurisdiction – what he calls the ‘more appropriate’ interpretation.¹⁵ The goal is the most universal and fair reading of statutory interpretation; in other words, objectivity as ideal.

However, this technical approach does not tell us much, as doctrines such as comity remain a black box that do not offer a solution but merely restate the original problem. They do not tell us how to achieve comity, or on what and whose terms, or through which processes we might identify the ‘more appropriate’ understanding of its contours. Harmony is not only the outcome of consensus; it is also the aftermath of illicit coercion. These suspicions suggest the importance of understanding the nature of this coercion – precisely what is not allowed in this orientation. For what ultimately unites scholars who adopt the technical approach is a shared commitment to adhering to the image of the practising lawyer as an apolitical advisor or mediator. The tone is measured and reasonable, reflective of the relatively modest contribution of international law to equitable governance and social justice struggles, full of cool passion.

Thus, the technical scholar is perceived to be offering wise counsel, which allows for an observation about how firmly this literature confines itself to a traditional vision about the role of the lawyer in practice. As Pierre Schlag points out, the very form of technically oriented law publications resembles a legal brief submitted to a court. The ‘normative wrap’ at the end of a ...

Table of contents

• Cover
• Half Title
• Series Page
• Title
• Copyright
• Contents
• List of contributors
• Introduction
• PART I What is extraterritoriality?
• PART II Constituting and contesting extraterritoriality
• PART III Extraterritoriality in the contemporary world
• Index