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This chapter discusses the territoriality principle and its applications in various fields of the law. It shows that in the criminal law, common law countries have put far more emphasis on the territoriality principle than continental European countries. Because in the latter countries substantive justice has historically been considered as more important than evidentiary due process standards and extraterritorial jurisdiction is uncommon in the common law. Because territoriality has been the cornerstone of jurisdictional order in the common law, and extraterritorial jurisdiction has been shunned, it comes as no surprise that common law countries, the United States in particular, have construed the territorial principle rather broadly in order to get to grips with the challenges posed by transnational crime and economic globalization.

This chapter addresses the issue of whether an additional, broader international antitrust defence should be recognized and the form that such a defence should take. Section 10.2 argues that a qualified effects doctrine is a justifiable and superior rule to territorial jurisdiction for determining the scope of application of competition law. Section 10.3 examines various ways to reduce the extent of concurrent jurisdiction. Section 10.4 examines ways to improve the management of concurrent jurisdiction. Section 10.5 summarizes the conclusions of Part II of the book.

This chapter examines the origins of the rules that govern the ambit of English criminal law, and the factors that shaped them. It addresses the following questions: How and why did English criminal law become so heavily dependent on the principle of territorial jurisdiction, to the virtual exclusion, until relatively recently, of jurisdiction based on nationality? Why, in contrast, are many other countries so much more willing to apply their criminal laws to acts committed by their nationals abroad? And why, in recent years, has Parliament created so many exceptions to the general rule that English criminal law does not apply abroad? The very limited territorial ambit of the common law was originally shaped by procedural rules of venue that made any extraterritorial application almost impossible, and the principle of territoriality that developed was then maintained by a mixture of practical considerations and by a general feeling that things done abroad were not in any case the proper (and certainly not the urgent) concern of English criminal law. In the last 40 years, however, revolutions have occurred in international travel, trade, finance, and telecommunications. These, together with the changing patterns of criminal conduct associated with them, have spawned numerous exceptions to the basic principle of territoriality, many of which have been required in order to comply with the United Kingdom's treaty obligations under international law.

Norm change frequently occurs (1) when norms are in tension with each other and (2) when the “fit” between norms and concrete experience is disputed. This chapter provides historical case studies in support of that proposition. It begins with a concise discussion of the formation of the two temporally coexisting yet inherently contending norms—exclusive territorial jurisdiction and extraterritorial justice—as the dual normative structures guiding state policies and generating interstate disputes. The second section summarizes the justifications for, and the establishment of, extraterritorial justice through imperial expansion and colonization. Section three analyzes the cases of Japan, Turkey, and China to reveal the contentious processes in which concrete practices of various forms of extraterritorial justice triggered disputes not only between the West and non-Western states but even within and among Western capitals. The chapter concludes by suggesting that the abolition of extraterritoriality modified international normative structures by promoting the principle of self-determination and paving the way for post-WWII decolonization.

The common law does not, as a general rule, recognize the effectiveness of judicial process outside the territorial jurisdiction of the court and it is only by statute that a court has power to exercise jurisdiction over anyone found beyond its territorial limits. As Coke pointed out, however, this rule applied only to ‘remedial writs’ or ‘all writs real and personal, whereby the party wronged is to recover somewhat, and to be remedied for what wrong was offered unto him’. Other writs, deriving their authority and force from the Crown, are ‘mandatory’ and ‘are not tied to any place but do follow subjection and ligeance’. Habeas corpus is one of the prerogative writs, and rather than raise an issue between two parties which is to be decided by a court having jurisdiction over them both, it is supposed to issue on the part of the Queen so that she might have an account of any of her subjects who are imprisoned. At common law, all the prerogative writs had this broader ambit and were said to run to all parts of the Queen's dominions. In theory, habeas corpus depends not upon the ordinary jurisdiction of the court for its effectiveness, but upon the authority of the sovereign over all her subjects. While this does not make it possible to issue the writ where the respondent is in a foreign country, even where the respondent is a subject of the Crown, it does give the writ an extraordinary territorial ambit. This feature of habeas corpus continues to be important in relation to offshore detentions by executive order. This chapter shows how it has been consistently held that the executive cannot immunize detention orders from review on habeas corpus by holding the detainee beyond the courts' usual territorial reach.

Jurisdiction is concerned with the allocation of competences between states. There is need for a theoretical understanding of jurisdiction that allows a clear sight of how all these aspects — and very many more — fit together, and how they interrelate. This understanding begins by distinguishing the competence to prescribe law from the competence to apply law. The prescription of law is evidenced primarily by legislation, but also by other regulatory and common law processes within the state. The application of law says nothing about the origin of the law (it may be the law of the forum or another law) — rather it is about the authority to apply law directly to specific persons, events, or property. The most familiar example will be the judicial process. The authority of a state to prescribe law is a matter of public international law. This chapter also discusses the concept of territorial jurisdiction, the so-called protective principle basis of jurisdiction, and the passive personality principle.

The chapter looks at the relationship between jurisdiction and criminalization. The first section analyses the institutional dimensions of jurisdiction, looking at the relation between jurisdiction and civil order, and at some of the basic distinctions which have shaped the emergence of modern ideas of criminal law jurisdiction. The second section traces the development of the concept of territorial jurisdiction, looking at the means by which jurisdiction was extended from the governance of the local community to nation state, and to its support for forms of imperial rule. The third section then looks at the ways in which the meaning of territory has been linked to changing ideas of civil order and the changing aims of the criminal law. The chapter concludes by looking at contemporary challenges to territorial conceptions of jurisdiction and their impact on questions of criminalization.

This chapter further explores and defends the conception of natural resource justice composed of the principle of collective self-determination and the (lexically prior) basic needs principle. It explains the lexical ordering of the principles and the nature and scope of the resource claims they legitimize. It then discusses how the two principles will work in tandem to support a system of limited territorial jurisdiction over natural resources, and several forms such limits can be predicted to take. A brief explanation of how this account might be integrated into a broader theory of justice concerning other morally significant goods is provided. In response to the objection that this conception of justice is really a form of sufficientarianism, the view is portrayed as a theory of relational egalitarianism for natural resources. A response is also given to the objection that the theory is problematically ideal in the sense that it lacks feasibility.

This chapter examines the tensions between claims to territorial and personal jurisdiction, as the British government tried to prevent its subjects from committing crimes overseas. The primacy of territorial jurisdiction resulted from the need to delimit territorial boundaries in order to impose uniform laws and allow no place for lawless individuals to escape. However, in a famous judgment in 1824, the U.S. Supreme Court held that a government had absolute jurisdiction over territory and over individuals provided they were its citizens or subjects. The chapter then looks at two cases of murder committed by British subjects in Ottoman territory in the early 1840s.

A Truth and Reconciliation Commission (TRC) was established in Sierra Leone in order to: create an impartial historical record of violations and abuses of human rights and international humanitarian law related to the armed conflict in the country; address impunity; respond to the needs of the victims; promote healing and reconciliation; and prevent violations and abuses in the future. Both the TRC and the Special Court began operations in mid-2002. Although they operated in parallel for more than 18 months, the work of the TRC was essentially completed by the time actual trials of the Special Court commenced in June 2004. Both the TRC and the Special Court fit within the palette of transitional justice options being used to address impunity in post-conflict situations. This chapter compares the two organizations in terms of legal status and functions, mandates, and jurisdictions. Some of the issues that may arise in the relationship between them are examined.

This chapter first examines and compares the decisions rendered by arbitral tribunals and state courts, on the scope of the consent clauses contained in the Chinese bilateral investment treaties (BITs) of the first generation, with decisions rendered under other BITs with similar wordings. The decisions relating to Chinese BITs have contributed to the debate on the interpretation of treaties contained in arbitral awards that have extended the subject matter of the arbitral jurisdiction and the subsequent state court decisions that have reviewed, and on notable occasions have sanctioned these awards. These decisions contain more particulars pertaining to BITs emanating from socialists’ countries than characteristics specific to China’s BITs. The situation is different for other jurisdictional issues. The territorial jurisdiction of arbitral tribunals under the Chinese BITs—and whether they apply to a special administrative region (SAR)—was examined under the interpretation of the territorial scope of treaties and under the moving frontier rule and the exceptions to these principles, in particular the intent expressed by China. The question of the nationality of the investor seeking the protection of a Chinese BITs also raised Chinese characteristics, as it allowed for the first-time arbitral tribunals to apply, at an international level, the nationality test for both individuals and corporations established in the SARs contained in the municipal law.

This chapter defends the principle of collective self-determination as a second principle of natural resource justice. This defence emerges from consideration of the principle of natural resource sovereignty, which appears to be a candidate for agreement from the perspective of Contractualist Common Ownership. The responsible stewardship defence of resource sovereignty is rejected. The collective self-determination defence, however, is shown to get something right. Parties to the original position would indeed accept a principle according to which resource rights must support political communities in the legitimate exercise of collective self-determination, because such self-determination promises to further individuals’ interests in freedom as non-domination. But the principle of collective self-determination appears to support merely a presumptive right of exclusive territorial jurisdiction over natural resources, rather than resource sovereignty. This presumptive right must be abnegated or moderated if it conflicts with basic needs satisfaction, or with the self-determination of other political communities.

The international law of occupation—as it has developed since the nineteenth century—traditionally regulates the conduct and obligations of occupying forces. Very little is said about the obligations of an occupied State, or a ‘victim’ State. This chapter focuses on a limited practice of the European Court of Human Rights in developing some principles in this respect. The main emphasis is put on the landmark judgment Ilascu v Moldova and Russia, in which, for the first time, the Court has found that a State, which lost effective control over a part of its territory and was unable to exercise its jurisdiction there, still had some positive obligations deriving from its de jure jurisdiction. It is argued that the Court’s approach represented a new development in international law, which traditionally considered human rights obligations to be primarily triggered by an effective territorial control. It is further discussed that it might be quite difficult to reconcile positive obligations towards people remaining in occupied territories with a State’s obligation to refrain from supporting separatist regimes. Substitution of effective control for the concept of ‘positive obligations’ necessitates a very delicate assessment of different political, diplomatic, judicial, and other measures, which requires a high degree of sensitivity on the part of the international court. The scope of the positive obligations of an injured State vis-à-vis the positive obligations of an occupying State needs to be elucidated further.

This chapter establishes United Nations Constitutional Assistance (UNCA) as a significant but uncharted international and constitutional law topic. UNCA is defined as a set of activities undertaken to produce/internationalize the Western liberal constitution. The Constitution’s salience is outlined to show that UNCA: sires UN/International Territorial Administration; is salient vis-à-vis the UN’s assistance in all other sectors (e.g., electoral, judicial, rule of law); and underpins UN peacebuilding/UN Statebuilding. This backdrop sets the stage for the book’s mission: to analyze UNCA through the concept of ‘Policy Institution’ and Purposive Analysis (analysis of the UN’s official statements). Which is: to investigate and identify the Constitution’s internationalization by international organizations (e.g., the League of Nations and the United Nations); to analyse how the Constitution and its purposes fit into international law and public policy; to consider how states internationalized the Constitution to achieve colonial trusteeship; and to explain how the legitimacy of UNCA with, and without ITA might be appraised in the light of this analysis.

This chapter focuses on the Spanish conquistadors who, after their arrival in the New World, proclaimed royal jurisdiction over the land and founded new settlements. Standing in open territory and in the presence of notaries when these were available, expedition commanders announced that, under the authority received from the king, viceroy, or governor, they were founding a settlement. They then set the territorial jurisdiction of the community, nominating the local authorities and dividing the land by plots, assigning sites for the main square, local council hall, and jail. Asking those present if they wished to become citizens, commanders announced that they could do so by presenting themselves to the authorities in the following days. Through this ceremony, new communities came into being before the first cornerstone was ever laid.