A Jurisprudential Justification for Extraterritoriality in (Private) International Law
Forthcoming in Santa Clara Journal of International Law, Volume 13, Issue 1 (2015)
Posted: 5 Aug 2014
Date Written: August 4, 2014
Extraterritoriality is a key concept in both public, and private, international law. Yet, scant attention has been given to the jurisprudential underpinnings of extraterritoriality and that of its Achilles’ heel – the enforcement difficulties commonly associated with extraterritorial claims.
To fill this gap, the article undertakes a study of the writings of a selection of leading legal theorists (Fuller, Kelsen, Hart, Goldsmith, and Posner). The analysis of the findings of that study draws attention to (1) the “dual role of law”, (2) the “reputational dimension of extraterritoriality”, (3) the option of “domestic enforceability of extraterritorial claims” through so-called “market destroying measures”, and (4) the necessary distinction between “bite jurisdiction” and “bark jurisdiction”.
From that, it is proposed that neither the jurisprudential legitimacy, nor the practical utility, of extraterritorial claims necessarily depend on the legal enforceability of those claims. And that, in any case, also extraterritorial clams that cannot be backed up by extraterritorial legal enforcement are, in legal positivist terms, backed by sanctions through the possibility of domestic legal enforceability of extraterritorial claims.
Finally, a theoretical framework for assessing extraterritorial claims is presented. However, first, to prepare ground for the work described, the concept of extraterritoriality is discussed.
Keywords: extraterritoriality, jurisdiction, legal theory, jurisprudence, legal philosophy, Hart, Kelsen, Fuller, Dworkin, Goldsmith, Posner, Internet law, private international law, conflict of laws, public international law
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