International Law Since the Cold War: Jurisdiction

Abstract

This chapter is concerned with the history of the international law of jurisdiction in the post-Cold War period. In international law in general, the post-Cold War period has (not uniquely) been characterised by a combination of opposing forces. On the one hand, there has been a radical idealism, the proposition of a ‘new world order’ in which the contest between territorial sovereigns (characteristic of the Cold War period) is replaced with a more harmonious internationalism, although with a great degree of disagreement as to its legal and institutional shape. On the other hand, there is a reassertion of great power politics and of the territorial sovereign state as the dominant form of social organisation. The law of jurisdiction has been subject to these same developments and disputes, and indeed may be considered to exemplify them. This chapter focuses on three developments which are particularly characteristic of the post-Cold War period, and particularly relevant to the jurisdictional context. The first is associated with human rights and universalism, the claim that certain values provide the shared foundations of the international legal order, and that these are matters above or beyond the sovereignty of individual states. This is opposed by the argument that human rights represent a false universalism which is subject to abuse through selective assertion and which should not be prioritised over national values and interests. The second challenge is associated with globalisation, and the idea that the interconnectedness of the global economy weakens the effectiveness of territorial state regulation in a way which enables and perhaps even requires other forms of international or transnational regulation or cooperation. This is opposed by the argument that globalisation may facilitate state regulation, both territorial and extraterritorial, and indeed may demand an increase in its robustness. The third challenge is raised by developments in communications technologies, which to some hold (or held) out the promise of a digital realm, a cyberspace, beyond national territorial authority. This is opposed by the argument that the state cannot and should not fail to assert its national regulatory interests in relation to the internet, otherwise it risks becoming a lawless space which threatens those interests. Put together, these three challenges are reflective of a deeper challenge to the law of jurisdiction and to its structural aspirations – whether and how it can continue to play an effective and legitimate role in reducing regulatory conflict, in a post-Cold War context in which the forms of regulation and the types of activities which are regulated have both increased significantly in complexity.

Keywords: Jurisdiction, International law