Reclaiming International Law from Extraterritoriality

56 Pages Posted: 18 Sep 2007 Last revised: 1 Mar 2008

Austen Parrish

Indiana University Maurer School of Law

Date Written: February 25, 2008

Abstract

A fierce debate ensues among leading international law theorists that implicates the role of national courts in solving global challenges. On the one side are scholars who are critical of international law and its institutions. These scholars, often referred to as Sovereigntists, see international law as a threat to democratic sovereignty. On the other side are scholars who support international law as a key means of promoting human and environmental rights, as well as global peace and stability. These scholars are the 'new' Internationalists because they see non-traditional, non-state actors as appropriately enforcing international law at the sub-state level. The debate has had an impact. In recent years, the U.S. has disengaged from traditional sources of international law, and in particular, multilateral treaties. In its place, the U.S. and non-state actors use domestic laws, applied extraterritorially, to exert international influence. Following the U.S. lead, other countries now increasingly apply their domestic laws extraterritorially too.

This Article addresses a topic that leading theorists have given scant attention - the rise of global extraterritoriality. It argues that the two prevailing dominant perspectives in international legal theory have miscalculated the dangers that extraterritoriality poses. In so doing, the article advocates for an approach that acknowledges changes in the international system, but also seeks to shore-up territorial sovereignty to prevent the problems that extraterritoriality creates. It thus offers a way beyond the stalemate currently existing in international law scholarship. Controversially, it concludes that international law scholars - from both the Sovereigntist and new Internationalist perspective - should embrace and reclaim multilateral international lawmaking.

Keywords: Sovereigntist, internationalist, internationalism, extraterritorial, extraterritoriality, prescriptive jurisdiction, legislative jurisdiction, prescriptive, international law, neo-realist, constructivist, alien tort statute, alien tort claims, environmental, territorial sovereignty, sovereignty

JEL Classification: K10, K19, K20, K33

Suggested Citation

Parrish, Austen, Reclaiming International Law from Extraterritoriality (February 25, 2008). Available at SSRN: https://ssrn.com/abstract=1013740 or http://dx.doi.org/10.2139/ssrn.1013740

Austen L. Parrish (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

HOME PAGE: http://www.law.indiana.edu/

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