Subsidiarity and the Law of Jurisdiction
31 Pages Posted: 13 Nov 2014
Date Written: August 24, 2014
Domestic courts and regulators, as well as international legal instruments and international supervisory mechanisms allow bystander States to exercise extraterritorial jurisdiction to protect global values and norms related to human rights and the environment. Such exercise appears to be conditioned, however, by a requirement of subsidiarity, pursuant to which bystander States should only exercise extraterritorial ‘global justice’-based jurisdiction where the primary jurisdiction State – the State where the impugned acts occurred or where the allegedly responsible person is registered – is unable or unwilling to intervene. Such techniques have essentially been developed to limit jurisdictional overreach and to prevent one State from imposing its own regulatory solutions on another State. Seen from this perspective, they embody the negative, sovereignty-based dimension of subsidiarity, rooted in the sovereign equality of States.
Nevertheless, other techniques, embody a more positive, international community-driven dimension of subsidiarity, to be used with a view to upholding the integrity of international norms regarding human rights and the environment.
Keywords: international law, jurisdiction, subsidiarity, global values
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