Territoriality and Globalization
In: Stephen Allen, Daniel Costelloe, Malgosia Fitzmaurice, Paul Gragl, and Edward Guntrip (eds.), 'Oxford Handbook on Jurisdiction in International Law', Oxford University Press, 2018, Forthcoming
27 Pages Posted: 24 Oct 2018
Date Written: June 2, 2018
This chapter challenges the commonly held view that the territorial State is fundamentally unsuited to, and incompatible with, twenty-first century manifestations of globalization in the form of ever-tightening economic integration or all-pervasive global communication networks. This is only partly true. The State – as defined and enabled by public international law around the idea of territorial sovereignty – provides the ideal mechanism for global capital and corporate activity to function and grow with maximum efficiency and minimal accountability. The territorial nation State provides the legal framework that facilitates foreign wealth accumulation through open borders, and its subsequent retention in the Global North through closed borders. At the core of this legal framework are the territorial rules under private and public international law that provide high flexibility in selectively opening and closing borders as and when national interest demands. The chapter argues that the complementary concepts of territory and borders are useful constructs to ring-fence capital from ‘leakages’ to the outside. The argument is illustrated with reference to US cases applying the presumption against extraterritoriality, on the one hand, and by English corporate crossborder tort litigation, on the other hand. In these cases, the territorial State emerges not as a victim of globalization but as an essential participant, propagator and beneficiary of it.
Keywords: private international law, sovereignty, borders, North-South divide, jurisdiction, Shell, Okpabi, presumption against extraterritoriality
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