The Illusion of Territorial Jurisdiction

Abstract

Common accounts of the development of territorial jurisdiction follow a “rise and fall” narrative. Territorial jurisdiction began in the mid-17th century, and declined due to technological revolutions in communications and transportation in the mid-20th century. Since then, the narrative claims, jurisdiction doctrine is in crisis: It is no longer legitimated by territoriality, but it cannot find another foundation that is neutral and mutually exclusive. This narrative, this Article claims, is wrong both historically and conceptually. The “rise” of territorial jurisdiction in fact was always partial, and thus the “fall” never happened. Rather, effects jurisdiction, the supposed nemesis of territoriality, has been alive and well since the mid-19th century. In fact, effects jurisdiction (also called passive territoriality), the doctrine of continuing acts, and “strict” territorial jurisdiction use the same methods and are easy to convert into one another, calling into question the entire territorial–extraterritorial divide. There is a general uncertainty in what counts as “territorial” and what counts as “extraterritorial” jurisdiction, and this is the result of the almost complete lack of geographical information in jurisdictional discourse. This phenomenon is demonstrated by the impossibility of the cartographic-mapping of jurisdiction. The lack of a geographical connection means that most jurisdictional conflicts are better described as conflicts between communities and their legal orders, without a territorial connection. Doctrines of jurisdiction in international law should be reformulated to reflect the illusory nature of the territorial–extraterritorial division.

Keywords: territorial jurisdiction, international law, international legal history, critical legal studies