The Oxford Handbook of Jurisdiction in International Law (Oxford Handbooks)

Présentation de l'éditeur : "The Oxford Handbook of Jurisdiction in International Law provides an authoritative and comprehensive analysis of the concept of jurisdiction in international law. Jurisdiction plays a fundamental role in international law, limiting the exercise of legal authority over international legal subjects. But despite its importance, the concept has remained, until now, underdeveloped. Discussions of jurisdiction in international law regularly refer to classic heads of jurisdiction based on territoriality or nationality, or use the SS Lotus decision of the Permanent Court of International Justice as a starting point. However, traditional understandings of jurisdiction are facing new challenges. Globalization has increased the need for jurisdiction to be applied extraterritorially, non-State forms of law provide new theoretical challenges and intersections between different forms of jurisdiction have become more intricate. This Handbook provides a necessary re-examination of the concept of jurisdiction in international law through a thematic analysis of its history, its contemporary application, and how it needs to adapt to encompass future developments in international law. It examines some of the most contentious elements of jurisdiction by considering how the concept is being applied in specific substantive and institutional settings." Cover The Oxford Handbook of JURISDICTION IN INTERNATIONAL LAW Copyright Acknowledgements Contents Table of Cases Table of Legislation List of Contributors Part I: INTRODUCTION Chapter 1: Introduction: Defining State Jurisdiction and Jurisdiction in International Law I. Jurisdiction: First Overtures to an Elusive Concept II. Jurisdiction: Why Does It Matter in International Law? III. Jurisdiction in International Law: An Overview of this Book III.1. History of Jurisdiction III.2. Theory of Jurisdiction III.3. Jurisdiction in General International Law III.4. Contextualizing Jurisdiction: Selected Substantial and Institutional Issues IV. The Objective of this Handbook Part II: HISTORY Chapter 2: The Beginnings of State Jurisdiction in International Law until 1648 I. Introduction II. Antoninus Pius and the Limited Sovereignty of the Emperor III. Caracalla and the Territorial Principle IV. Contesting Universalities: Pope and Emperor V. The Influence of Premodern Legal Doctrine in the Formation of State Jurisdiction in International Law VI. Conclusions Chapter 3: The Lotus Case in Context: Sovereignty, Westphalia, Vattel, and Positivism I. Introduction II. State Sovereignty in Context: Westphalia and Vattel III. The Lotus Case Revisited: Positivism and Prohibitive Rules on Jurisdiction IV. Conclusion: Impact of the Lotus Case Chapter 4: The European Concept of Jurisdiction in the Colonies I. Introduction II. Export of Westphalian Sovereignty III. Religious Jurisdictions IV. Modern Imperial Jurisdictions V. Extraterritoriality VI. The Spanish Conceptof Jurisdiction VII. The British Empire VIII. The French Concept of Jurisdiction IX. Dutch Colonialism X. Postcolonial Legacy Chapter 5: Immanuel Kant and Jurisdiction in International Law I. Introduction II. The Categorical Imperative and Jurisdiction: The Duty of Non-Intervention III. Democratic Legitimacy of the Exercise of Jurisdiction IV. Kant and Universal Jurisdiction V. Towards a Concept of Judicial Hospitality? Part III: THEORY Chapter 6: Navigating Diffuse Jurisdictions: An Intra-State Perspective I. Introduction II. Is it Law? III. Is It State or Non-State Law? IV. Mapping the Boundaries between State and Non-State Law: A More Calibrated Approach? IV.1. The Formation of Norms IV.2. The Recognition of Norms IV.3. The Interpretation of Norms IV.4. Enforcement of Norms V. Conclusion Chapter 7: Jurisdictional Pluralism I. The Problem of Territoriality II. Jurisdiction and Deterritorialization III. Jurisdiction and Cultural Change IV. Jurisdiction and Relative Authority V. Jurisdiction and Alternative Norms VI. A Cosmopolitan Pluralist Vision of Jurisdiction VII. Jurisdiction, Jurispersuasion, and Contestation VIII. Building Governance Structures to Accommodate Jurisdictional Pluralism IX. Conclusion Chapter 8: Deepening the Conversation between Socio-Legal Theory and Legal Scholarship about Jurisdiction I. Introduction: A Two-Way Relationship between Social Theory and Legal Studies II. Scale Shifting in Legal Contexts: Beyond Jurisdiction III. Beyond Space: The Work of Law’s Many Temporal Scales IV. The Materiality of Legal Actors and Processes V. Does Law Have Moods? Narratives, Genres, and Affect VI. Conclusion Chapter 9: Critical Approaches to Jurisdiction and International Law I. Introduction II. Critical Approaches (Protocols) III. Claims of Authority III.1. Critical and International Authority III.2. Thinking with Jurisdiction IV. Engagements: Conduct of Jurisdiction IV.1. Universality of Jurisdiction IV.2. Technical Forms and Means V. Jurisdictions and Encounters V.1. Rival Authorities V.2. Plural Authorities and Encounters VI. Conclusion Part IV: GENERAL INTERNATIONAL LAW Chapter 10: Cosmopolitan Jurisdiction and the National Interest I. Allocating the Exercise of Jurisdiction II. Cosmopolitan Jurisdiction and the National Interest III. Universal Criminal Jurisdiction: An Empirical and Normative Inquiry into National Interests IV. Concluding Observations Chapter 11: Jurisdictional Immunities of the State in International Law I. The Concept of State Immunity: History, Functions, and Philosophy II. The Jurisdictional Immunities Case II.1. Recent Developments in International Jurisprudence II.2. Germany v Italy: State Immunity before the ICJ II.2.a. Factual Background II.2.b. The Decision II.2.b.i. Territory and Torts II.2.b.ii. The Gravity of the Violations, Ius Cogens Norms, and the Question of Alternative Remedies II.2.b.iii. The Villa Vigoni and the Enforcement of Greek Decisions II.3. The Judgment within the Broader Legal Framework: A Defence III. The Immunity Controversy: From State-Centrism to Individualism? III.1. International Law as a System of Values: Formation Interrupted III.2. Hierarchy of Norms and Ius Cogens III.3. Concluding Remarks IV. State Immunity and the Relationship between International and National Law V. Conclusion Chapter 12: The Establishment, Change, and Expansion of Jurisdiction through Treaties I. Introduction II. On Territoriality III. On Universality IV. Jurisdiction on Multiple Grounds V. Conclusion Chapter 13: Territoriality and Globalization I. Introduction II. Reflections on Territory, Borders and Authority II.1. The Dual Nature of ‘Territory’ and ‘Borders’ II.2. Territorial Sovereignty and the Public–Private Divide III. Inconspicuous ‘Border Guards’ and Preventing ‘Leakages’ of Capital III.1. Regulatory Law and the ‘Presumption against Extraterritoriality’ in US Litigation III.2. English Tort Litigation III.2.a. Removal of Protective Shields: Corporate Veil and Forum Non Conveniens III.2.b. Zambian Copper III.2.c. Nigerian Oil IV. Conclusion Chapter 14: Private Interests and Private Law Regulation in Public International Law Jurisdiction I. The State-Centric andPublic Law Focus of Jurisdiction II. Traditional Jurisdictional Grounds: Territoriality, Nationality, Universality III. Private Interests in Public Law Regulation IV. Private Law Regulation IV.1. Private Interests in Private Law Regulation IV.2. The Separation of Adjudicative and Prescriptive Jurisdiction IV.3. Additional Connecting Factors IV.4. Techniques to Manage Potentially Conflicting Regulation V. Conclusions Chapter 15: Jurisdiction and State Responsibility I. Introduction II. Prescriptive Jurisdiction II.1. The Substantive Law of Prescriptive Jurisdiction II.2. Case Study: Universal Jurisdiction in the Terrorism Context II.3. State Responsibility for Excessive Prescriptive Jurisdiction II.3.a. Injury II.3.b. Circumstances Precluding Wrongfulness II.3.b.i. Consent II.3.b.ii. Countermeasures III. Enforcement Jurisdiction III.1. Substantive Law on Enforcement Jurisdiction III.2. Case Study: Territorial Enforcement Jurisdiction Predicated on Extraterritorial Abduction III.3. State Responsibility for Excessive Enforcement Jurisdiction III.3.a. The Continuing Character of the Breach and the Secondary Obligation of Cessation III.3.b. Circumstances Precluding Wrongfulness III.3.b.i. Consent III.3.b.ii. Countermeasures III.3.c. Remedies IV. Conclusions Chapter 16: Enforcing Criminal Jurisdiction in the Clouds and International Law’s Enduring Commitment to Territoriality I. Introduction II. Cyberspace and Territorial Jurisdiction III. The Phenomenon of Cloud Computing III.1. The Notion of ‘the Cloud’ III.2. The Blurring of Online and Offline Criminality III.3. The Jurisdictional Impacts of Cloud Computing IV. The Problem of Loss of (Knowledge of) Location IV.1. Jurisdiction and the Budapest Convention IV.2. Article 32 of the Budapest Convention: The Narrow Territorial Exception IV.3. Extending Unilateral Trans-Border Access V. Unilateral Trans-Border Activity Where Location of Data Is Known V.1. Using Production Orders in Extraterritorial Settings VI. Recent Cases VI.1. The Belgian Yahoo! Case (2013–15) VI.2. The Microsoft Warrant Case: Court of Appeals Decision VI.3. Microsoft Warrant Case in the Supreme Court VII. Conclusion Part V: CONTEXTUALIZING JURISDICTION: SUBSTANTIVE AND INSTITUTIONAL ISSUES Chapter 17: The ‘J’ Word: Driver or Spoiler of Change in Human Rights Law? I. Introduction II. Jurisdiction in Human Rights Law III. Extraterritorial Jurisdiction III.1. Meaning III.2. Scope III.3. Concurrent Jurisdiction: Multiple Duty-Bearers IV. Beyond Jurisdiction? IV.1. Economic, Social, and Cultural Rights IV.2. Non-State Actors V. By Way of Conclusion: Is Jurisdiction Just Another Word? Chapter 18: International Investment Law, Hybrid Authority, and Jurisdiction I. Introduction II. Jurisdiction, Authority, and Transnational Law II.1. Jurisdiction and Authority II.2. Transnational Law III. International Investment Law III.1. The Classic IIL Paradigm III.2. Hybrid Authority—the Host State and the Foreign Investor III.3. Hybrid Authority—the Host State and Investment Arbitration III.4. Preliminary Conclusion IV. Changing Jurisdictional Practices V. Conclusion Chapter 19: Conceptions of State Jurisdiction in the Jurisprudence of the International Court of Justice and the Permanent Court of International Justice I. Introduction II. Distinctions and Classifications III. The Meaning of Jurisdiction as Regulatory Power in the Court’s Jurisprudence IV. The ‘Reserved Domain’ and the Plea of Domestic Jurisdiction V. The Limits on One State’s Regulatory Authority as a Consequence of Other States’ Regulatory Authority: The Lotus Case VI. Specific Restrictions on a State’s Regulatory Authority VII. Conclusions Chapter 20: The Evolving Nature of the Jurisdiction of the Security Council: A Look at Twenty-First-Century Practice I. Introduction II. The Expansion of the Council’s Jurisdiction in Relation to Thematic and Cross-Cutting Items on its Agenda II.1. Cold War Dynamics: The Early Days of the Organization II.2. The First and Only Periodic Meeting of the Council II.3. The End of the Cold War and the Resurgence of the Council II.4. Cross-Cutting Items II.5. Recent Practice III. The Expansion of the Council’s Jurisdiction in the Area of Sanctions III.1. The Operationalization of UN Sanctions III.2 Expansion of UN Sanctions vis-à-vis Member States III.3. UN Sanctions Expansion vis-à-vis Individuals and Entities IV. Conclusions Chapter 21: International Criminal Jurisdiction I. Introduction: International Criminal Jurisdiction versus State Sovereignty II. Possible Foundations of International Criminal Jurisdiction II.1. Terminological and Conceptual Choices II.2. State Consent as the Foundation of International Criminal Jurisdiction II.3. International Community Mandate as the Foundation of International Criminal Jurisdiction III. The Judiciary’s Perspectives III.1. Compétence de la Compétence of International Criminal Courts and Tribunals III.2. International Criminal Tribunals Established by Occupying Powers: International Military Tribunals of Nuremberg and Tokyo III.3. International Criminal Tribunals Established by the UN Security Council: ICTY, ICTR, and STL III.4. International Criminal Tribunals Established by a Bilateral Treaty with the UN: SCSL III.5. International Criminal Tribunals Established by a Multinational National Treaty: The International Criminal Court IV. Assessment and Conclusion Chapter 22: Jurisdiction and International Territorial Administration I. Introduction II. The Basis for International Territorial Administration Jurisdiction and Its Impacton National Law III. Jurisdiction within the Legal System of an International Administration IV. Jurisdiction over International Crimes V. The Jurisdictional Immunities of International Territorial Administrations and their Staff VI. Human Rights Jurisdiction VII. Conclusion Index Présentation de l'éditeur : "The Oxford Handbook of Jurisdiction in International Law provides an authoritative and comprehensive analysis of the concept of jurisdiction in international law. Jurisdiction plays a fundamental role in international law, limiting the exercise of legal authority over international legal subjects. But despite its importance, the concept has remained, until now, underdeveloped. Discussions of jurisdiction in international law regularly refer to classic heads of jurisdiction based on territoriality or nationality, or use the SS Lotus decision of the Permanent Court of International Justice as a starting point. However, traditional understandings of jurisdiction are facing new challenges. Globalization has increased the need for jurisdiction to be applied extraterritorially, non-State forms of law provide new theoretical challenges and intersections between different forms of jurisdiction have become more intricate. This Handbook provides a necessary re-examination of the concept of jurisdiction in international law through a thematic analysis of its history, its contemporary application, and how it needs to adapt to encompass future developments in international law. It examines some of the most contentious elements of jurisdiction by considering how the concept is being applied in specific substantive and institutional settings."