Cosmopolitan extraterritoriality

On 14 September 2019, I gave a presentation on cosmopolitanism and extraterritoriality at the annual conference of the European Society of International Law in Athens, Greece (panel on extraterritoriality). In this post I restate the main points of my presentation. This post also serves as a wrap-up of two research projects which I have carried out over the last five years, partly under Ucall auspices, on extraterritoriality and global values. These projects involved in total seven PhD researchers, whom I would like to wholeheartedly thank for their contributions. Two of these researchers were affiliated with Ucall (Lucas Roorda and Friederycke Haijer). A monograph bringing together the various parts of the project is forthcoming in spring 2020, provisionally titled ‘Selfless Intervention. The Exercise of Jurisdiction in the Common Interest’ (under contract with Oxford University Press). As cramming the research results of a large project into one blogpost is quite impossible, I will paint with a broad brush, and make choices. I will start by defining cosmopolitanism, and go on to explain how common interest-based reasoning may be inscribed into existing principles of jurisdiction, in particular territoriality. The first part of the post will be conceptual, while the second part will be more practical and doctrinal.

In political philosophy, there are probably as many definitions of cosmopolitanism as there are philosophers. In essence, however, cosmopolitanism is defined as a notion that human beings have obligations towards each other, because they are part of a global community, irrespective of geographic distance. Cosmopolitan action, in turn, is action aimed at pursuing the common interest rather than just the national interest. Cosmopolitanism and the related notion of global justice are major themes in contemporary ethics. But from the point of view of practical ethics, the question arises how such notions could be applied in the real world. In my project, I have focused on how states could exercise jurisdiction (i.e., real world authority) to further the common interest across borders. This means that I have examined whether, and how, states can extend their laws to address extraterritorial activity that jeopardizes the common interest.  You can think of climate change, illegal fishing, corruption, and corporate human right abuses abroad.

At first sight, the answer to this question appears to be in the negative. Indeed, the law of jurisdiction may appear to be inherently conservative. It is based on territoriality and state sovereignty, just like the entire edifice of modern international law.

That being said, there is something called ‘universal jurisdiction’, which can be exercised over core crimes against international law (e.g., war crimes). Such jurisdiction could be considered as evidence of rising cosmopolitan solidarity among states and communities. The idea animating the project was that this jurisdictional solidarity could perhaps extend to other offenses and wrongful activities.

Outside the context of core crimes against international law, however, there is scant evidence of universal jurisdiction being exercised. Yet this need not be fatal to the cosmopolitan project. In fact, on closer inspection, the principle of territoriality may, somewhat counterintuitively perhaps, offer a promising hook to advance a cosmopolitan agenda. This is because territoriality’s conjoined twin, sovereignty, has undergone semantic transformations. Sovereignty may have shifted its ambitions from protecting narrow state interests to safeguarding the values and interests of the international community. For instance, in Sovereignty as Symbolic Form, political philosopher Jens Bartelson observes that ‘the exercise of political authority is legitimized with reference to its capacity to maintain the international system in good working order by […] promoting democracy and human rights, and protecting populations from gross violations of the latter’ (p. 88). He goes on to state that sovereignty becomes an instrument of an international political morality that is enforced by ‘a thousand petty emperors acting on behalf of an imagined international community’ (p. 87).

Just like sovereignty, territoriality allows for conceptual experimentation. Actually, already for a rather long time, the objective (effects-based) and subjective (conduct-based) incarnations of territoriality have been able to capture situations with a strong extraterritorial dimension, notably in the fields of criminal law and antitrust law. Recently, territoriality has been given entirely new interpretations in the field of cyberlaw and data protection, where deterritorialization may seem to be the norm (see, for instance, the recent Google v CNIL judgment of the EU Court of Justice (2019) on the territorial scope of implementation of the right to erasure).

In fact, the territoriality principle allows for the territorialisation of the extraterritorial, depending on how offenses and activities are precisely framed. One may even reach the point that territoriality becomes an illusory or metaphysical concept. For instance, Peter Szigeti recently wrote that this is really about ‘making […] decisions, without geographic substance, about whether an event, a mental state, or a quality “takes place” within or beyond an international boundary’ (p. 398). The takeaway is that territoriality can be instrumentalized and even manipulated, to address the extraterritorial, and to serve the common interest.

This instrumental approach to territoriality has also been highlighted in the social sciences, for that matter. The acclaimed sociologist Saskia Sassen, for instance, talks about territorial state capabilities being ‘multivalent’, getting ‘relodged in novel assemblages’, and serving ‘the global’. Political geographers Foley and Havice, for their part, refer to territoriality as ‘a set of relationships rooted in ties to the material environment, […] mediated by techniques and representations’ (p. 25).

Now, such material ties can be particularly tenuous. For instance, in US sanctions and anti-corruption enforcement practice, the mere use of the US dollar in international transactions, or the routing of an email via a US server, has been considered as sufficient territorial connection, justifying the exercise of US jurisdiction over foreign persons engaging in otherwise entirely extraterritorial activity (see also an earlier post of mine).

An inevitable question arises then. If it is true indeed that territoriality appears to give legal cover to what is in reality the extraterritorial, is it not forfeiting its traditional role of delimiting spheres of competence between states and preventing international tension? This question can be answered in two ways. First, one can abandon territoriality altogether, an approach taken by Dan Svantesson, who writes in the field of cyberspace. Alternatively, one can simply accept that territoriality will probably only weed out the most outrageous claims, be “grateful” that territoriality can be so broadly construed as to further a cosmopolitan agenda, and look instead for principles of jurisdictional reasonableness and restraint. I take the latter position.  In the forthcoming monograph, I put a high premium on mitigating unilateral assertions in the common interest through techniques such as requiring embeddedness in international initiatives, participation of addressees of extraterritorial regulation, equivalent protection of foreign regulatory systems, and compensation of foreign addressees.

Let me now turn to instances of legal practice where territoriality has been creatively used to address “the extraterritorial”, and in particular common interests. Obviously, I cannot be exhaustive. In fact, I will give only one example, one that is particularly relevant from a liability perspective: tort litigation against corporations in respect of extraterritorial human rights abuses (see also Lucas Roorda’s PhD defence at Utrecht University on 13 December 2019). I consider human rights abuses to be jeopardizing the common interest, as human rights are laid down in international treaties and human rights obligations may have an erga omnes character.

The question of jurisdiction in transnational tort litigation is governed by private rather than public international law, as such litigation pits one private person (the claimant/victim) against another (the defendant corporation). A considerable number of jurisdictional grounds exist in private international law, most of which, as it happens, are grounded in territoriality. In line with the argument developed above, they allow for the territorialisation of the extraterritorial.

Take for instance the domicile principle, which can be characterized as a form of “fictitious” or “ascribed” territoriality. After all, pursuant to this principle, a territorial home is ascribed to a corporation on the basis of the mere formality of incorporation. In its place of incorporation, the corporation can be sued, even in respect of activities that are entirely extraterritorial, e.g. human rights abuses committed abroad.

Also other jurisdictional principles in private international law are manifestations of fictitious territoriality. Take for instance forum of necessity, which allows for the exercise of jurisdiction over foreign defendants in respect of foreign harm to avert a denial of justice for claimants. In most states, such jurisdiction happens to be triggered by the existence of a territorial connection, however tenuous, e.g., the presence of the victim. This territorial connection is again productively used to address what is essentially extraterritorial: human rights abuses committed abroad.

The upshot of the discussion above is that territoriality is not anathema to cosmopolitanism. In fact, territory and sovereignty could be allies of cosmopolitanism. What is more, to fully realize the potential of territoriality, one could envisage a shift in the law of jurisdiction from being discretionary in nature to being mandatory, in least in particular areas. This has already happened in a number of transnational crime conventions, e.g., the UN Convention against Corruption, which requires states to exercise territorial jurisdiction. In addition, states have positive obligations under human rights law, which may take on an extraterritorial dimension. Such obligations may require that states exercise jurisdiction over persons violating human rights abroad, insofar as the former have influence over the latter (see, e.g., the Maastricht Principles regarding home state responsibilities in this regard).