OXFORD MONOGRAPHS IN INTERNATIONAL LAW General Editors PROFESSOR CATHERINE REDGWELL Chichele Professor of Public International Law at the University of Oxford and Fellow of All Souls College, Oxford PROFESSOR DAN SAROOSHI Professor of Public International Law at the University of Oxford and Senior Research Fellow of The Queen’s College, Oxford PROFESSOR STEFAN TALMON Director of the Institute of Public International Law at the University of Bonn and Supernumerary Fellow of St Anne’s College, Oxford Jurisdiction in International Law SECOND EDITION OXFORD MONOGRAPHS IN INTERNATIONAL LAW The aim of this series is to publish important and original pieces of research on all aspects of international law. Topics that are given particular prominence are those which, while of interest to the academic lawyer, also have an important bearing on issues which touch the actual conduct of international relations. Nonetheless, the series is wide in scope and includes monographs on the history and philosophical foundations of international law. Recent Titles in the Series Treaties on Transit of Energy via Pipelines and Countermeasures Danae Azaria Complicity in International Law Miles Jackson Corporate Obligations under International Law Markos Karavias A Contemporary Concept of Monetary Sovereignty Claus D. Zimmermann Formalism and the Sources of International Law A Theory of the Ascertainment of Legal Rules Jean d’Aspremont Extraterritorial Application of Human Rights Treaties Law, Principles, and Policy Marko Milanovic Applicable Law in Investor-State Arbitration The Interplay Between National and International Law Hege Elisabeth Kjos Jurisdiction in International Law Second Edition CEDRIC RYNGAERT Professor of Public International Law Utrecht University 1 1 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Cedric Ryngaert 2015 The moral rights of the author have been asserted First Edition published in 2008 Second Edition published in 2015 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2014959024 ISBN 978–0–19–968851–7 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Jacket illustration: Getty Images © Arrville Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work. This book is dedicated to Dominika and Sophie General Editors’ Preface The Vienna Convention on the Law of Treaties is often referred to as the “treaty on treaties”. In the same way, the customary international law rules on jurisdiction could be called the “law on laws”. These public international law rules provide the legal framework for both national law-making and national law enforcement. As such, they form part of the core of general international law. While jurisdiction is in principle territorial, it is the extraterritorial exercise of civil, criminal and regulatory jurisdiction by States that raises some of the most interesting and chal- lenging questions of modern international law. In particular, the question of how issues of concurrent, competing and contradictory exercises of jurisdiction can be resolved provides ample opportunity for creative scholarship. In the first edition of the present book, published in 2008, Professor Ryngaert offered a coherent theory of “jurisdictional reasonableness” which gives the State with the strongest nexus the primary right to exercise jurisdiction. One of the strengths of the study has been its solid basis in State practice and, in particular, the jurisprudence of international and domestic courts. Over the last couple of years, however, opposing trends have emerged in the law of jurisdiction. While States have continued to expand their extraterritorial jurisdiction in areas such as environmental law, they have limited the exercise of extraterritorial criminal and tort jurisdiction. A new edition taking into account these new developments is thus timely and most welcome. CR, DS, ST Oxford and Bonn, February 2015 Preface Second Edition The first edition of this monograph was published in 2008. In light of recent evolutions in the law and practice of jurisdiction, a second edition was consid- ered to be timely. Applying the presumption against extraterritoriality, the US Supreme Court limited the geographic reach of the Alien Tort Statute to (human rights) cases that “touch and concern” the United States (Kiobel v Shell, 2013), and similarly limited the reach of the US securities (financial) regulation (Morrison v National Australia Bank, 2010). In other fields, notably sanctions law and anti- corruption legislation, US regulators have not shied away from vigorously enforc- ing laws with undeniable extraterritorial effect. On the other side of the Atlantic, the EU flexed its jurisdictional muscles by including foreign aviation activities in the scheme for greenhouse gas emission allowance trading within the EU (2009, approved by the European Court in 2011), by contemplating a rather broad reach of EU data protection legislation, and more generally using weak territorial con- nections as triggers to apply EU law to global activities. Internationally, the exer- cise of universal criminal jurisdiction appears to be on the retreat, with the African Union inveighing against Western (European) overreach, and liberal Spain even abandoning the principle altogether. At the same time, litigators have looked for inventive ways to bring civil cases in respect of human and environmental rights violations, largely drawing on private international law. In the law of the sea, the potential of port State jurisdiction in respect of harmful activities committed on the high seas appears to have been discovered. And, not unimportantly, the Internet has continued to challenge the territorial scheme on which the law of jurisdiction has classically been based, although States have not shed territoriality in respect of essentially de-territorialized cyber-activity. The literature, for its part, has put forward re-interpretations of the (US) presumption against extraterritori- ality, has emphasized the artificiality of territoriality in an increasingly borderless world, and has noted the potential of unilateral jurisdiction to address global governance gaps, e.g. in the environmental field. These evolutions in legal practice and doctrine warranted an update of the relevant chapters and a (limited) reconsideration of the theoretical framework used in the first edition. The basic chapter structure has been maintained, but various sections have been elaborated on or shortened, depending on their cur- rent salience. The chapters on the territoriality principle (3) and the principles of extraterritorial jurisdiction (4), as well as the final chapter (6), have been most thoroughly changed. In the last chapter, in particular, I have engaged somewhat more rigorously with the subsidiarity principle, which I suggest as an appropriate mechanism of jurisdictional mediation which allows for deference to the jurisdic- tion of the most-affected State while at the same time ensuring the protection of global interests in the face of territorial inaction.