“Head in the Clouds”: The Clash between Territorial Sovereignty, Jurisdiction, and the Territorial Detachment of the Internet

2021 ◽  
pp. 4-32
Author(s):  
Julia Hörnle
Keyword(s):  
Criminal Justice ◽  
International Law ◽  
Criminal Justice System ◽  
The Internet ◽  
Private International Law ◽  
Public International Law ◽  
The Us ◽  
Extraterritorial Jurisdiction ◽  
Global Law ◽  
Theoretical Foundations

Chapter 2 lays the theoretical foundations for the book and conceptualizes the notion of jurisdiction in different contexts, framing jurisdiction in relation to territoriality, sovereignty, and state authority. It clearly explains the different legal meanings of the term “jurisdiction” and how the term is used in law, political theory, and international relations. The chapter examines jurisdiction in four different areas of law: (1) public international law, (2) private international law, (3) the criminal justice system, and (4) regulatory jurisdiction. Furthermore, the chapter explains globalization as a background to the Jurisdictional Challenge and the challenge to state-made law. It summarizes the discussion on global law as a reaction to the Jurisdictional Challenge. Finally, the chapter juxtaposes sovereignty and territoriality and concludes with a discussion of extraterritorial jurisdiction and recent jurisprudence, particularly in the US.

Understanding the Functions of Jurisdictional Law

2017 ◽  
Author(s):  
Dan Jerker B. Svantesson
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Legal Philosophy ◽  
Law Reform ◽  
The Internet ◽  
Private International Law ◽  
Public International Law ◽  
Important Concept ◽  
Definition Of

This chapter takes us into the domain of legal theory and legal philosophy as it places the questions of Internet jurisdiction in a broader theoretical, and indeed philosophical, context. Indeed, it goes as far as to (1) present a definition of what is law, (2) discuss what are the law’s tools, and (3) to describe the roles of law. In addition, it provides distinctions important for how we understand the role of jurisdictional rules both in private international law and in public international law as traditionally defined. Furthermore, it adds law reform tools by introducing and discussing the concept of ‘market sovereignty’ based on ‘market destroying measures’––an important concept for solving the Internet jurisdiction puzzle.

Extraterritorial Jurisdiction at a Crossroads: An Intersection Between Public and Private International Law

1982 ◽  
Vol 76 (2) ◽  
pp. 280-320 ◽  
Author(s):  
Harold G. Maier
Keyword(s):  
International Law ◽  
Private International Law ◽  
Human Beings ◽  
Public And Private ◽  
Public International Law ◽  
The Public ◽  
Nation States ◽  
International Legal System ◽  
Extraterritorial Jurisdiction ◽  
International Systems

Historically, public international law and private international law have been treated as two different legal systems that function more or less independently. Public international law regulates activity among human beings operating in groups called, nation-states, while private international law regulates the activities of smaller subgroups or of individuals as they interact with each other. Since the public international legal system coordinates the interaction of collective human interests through decentralized mechanisms and private international law coordinates the interaction of individual or subgroup interests primarily through centralized mechanisms, these coordinating functions are usually carried out in different forums, each appropriate to the task. The differences between the processes by which sanctions for violation of community norms are applied in the two systems and the differences in the nature of the units making up the communities that establish those norms tend to obscure the fact that both the public and the private international systems coordinate human behavior, and that thus the values that inform both systems must necessarily be the same.

Remarks from the Panel

2019 ◽  
Vol 113 ◽  
pp. 279-285
Keyword(s):  
Public Policy ◽  
Criminal Justice ◽  
International Law ◽  
International Criminal ◽  
International Criminal Justice ◽  
Public International Law ◽  
Policy Practice ◽  
Legal Adviser ◽  
The University ◽  
Global Law

Chimène Keitner, Alfred & Hanna Fromm Professor of International Law at UC Hastings Law, moderated a discussion among John B. Bellinger III, former U.S. State Department legal adviser and current head of Arnold & Porter's global law and public policy practice; Marko Milanovic, professor of public international law at the University of Nottingham School of Law; and Angela Mudukuti, senior international criminal justice lawyer at the Wayamo Foundation.

scholarly journals Extraterritoriality in Private International Law

2021 ◽  
Vol 16 (5) ◽  
pp. 183-194
Author(s):  
L. V. Terenteva
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Private Law ◽  
Private International Law ◽  
Public And Private ◽  
Public International Law ◽  
Cross Border ◽  
Foreign State ◽  
Extraterritorial Jurisdiction ◽  
Definition Of

The paper questions the extraterritorial nature of foreign private law applied by the national law enforcement body in the regulation of cross-border private law relations. In view of the use of common terms “exterritorial” and “extraterritorial” in the framework of international public and private law regulation, it seems necessary to study the extraterritorial effect of foreign private law provisions through the prism of the substantive characteristics of extraterritoriality, formulated in the context of public international law. To this end, the author refers to the definition of extraterritorial jurisdiction as an international legal category and raises the question of how appropriate it is to admit, within the framework of a single definition, “extraterritorial” both the presence and absence of the manifestation of the sovereign will of the state on the territory of which any of the types of jurisdiction of a foreign state is exercised. Taking into account that the manifestation of the extraterritorial jurisdiction of one state in relation to another is realized in the absence of the latter’s sanction for its implementation, the author debates the admissibility of designation as extraterritorial foreign private law, the admissibility and limits of application of which are sanctioned by the national state.

Between Private and Public International Law: Exorbitant Jurisdiction as Illustrated by the Yukos Case

2007 ◽  
Vol 32 (1) ◽  
pp. 1-17 ◽  
Author(s):  
Giuditta Cordero Moss
Keyword(s):  
International Law ◽  
The United States ◽  
Specific Aspect ◽  
Point Of View ◽  
Public International Law ◽  
Russian Territory ◽  
The Us ◽  
Private And Public ◽  
Bankruptcy Code ◽  
Extraterritorial Jurisdiction

AbstractThe article analyses one specific aspect of the long and complicated proceedings in which the Russian oil company Yukos was involved: the question of jurisdiction relating to the application that Yukos made to a court in Houston, Texas, to open bankruptcy proceedings under chapter 11 of the US Bankruptcy Code and thus grant protection against the creditors to permit restructuring of the company. Yukos being a Russian company burdened by massive debt connected with taxes owed to the Russian authorities, and virtually the totality of its as-sets being located on Russian territory, the first question that arises is how it is possible for a court in the United States to have jurisdiction in this case. This article examines the question of extraterritorial jurisdiction in civil cases, from the point of view of both private and public international law.

scholarly journals Personal Jurisdiction Based on the Location of a Server: Chinese Territorialism in the Internet Era?

2021 ◽  
Author(s):  
Jie Huang
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Geographic Location ◽  
Third Party ◽  
The Internet ◽  
Private International Law ◽  
The Us ◽  
Intellectual Property Infringement ◽  
Personal Jurisdiction ◽  
Jurisdiction Rule

Whether a court can exercise personal jurisdiction based on the location of a server in internet tort cases is a controversial issue. Its significance comes from the paradox that the internet is de-localized because it is ubiquitous, but servers are indispensable to the internet and every server has a geographic location. Since 2001, Chinese law has allowed courts to exercise personal jurisdiction solely based on the location of a server or other computing equipment in intellectual property infringement cases. Recently, it has extended this jurisdiction rule to all internet torts. This paper asks whether the location of a server should be considered as the place where the tort occurs and whether this territorial-based jurisdiction rule can suffice its public-law legislative goal. It may enrich current research about technology-mediated legal challenges to private international law in two aspects. Firstly, it conducts a broad international survey by looking into laws in China, the US, Australia and the EU. It also analyzes where the tort occurs when servers are owned by an infringer, a third party or an infringee in domain name registration, service outsourcing, platform, cloud computing, commercial spams, etc. It concludes that in legal theory, the location of the server is not the place where an internet tort occurs. Secondly, by analyzing China’s experience, it argues that, in the internet era, states have to look for private-international-law tools to advance their public policy claims. However, the practice shows that the territorial-based jurisdiction rule is limited in fulfilling its pubic-law legislative goal.

The Role of Geo-location Technologies

2017 ◽  
Author(s):  
Dan Jerker B. Svantesson
Keyword(s):  
International Law ◽  
Law Reform ◽  
Private International Law ◽  
Current Effect ◽  
Public International Law ◽  
The Road ◽  
On The Road

This chapter explores the role geo-location technologies may play on the road towards achieving jurisdictional interoperability. The relevant technologies involved are introduced briefly, their accuracy examined, and an overview is provided of their use, including the increasingly common use of so-called geo-blocking. Attention is then given to perceived and real concerns stemming from the use of geo-location technologies and how these technologies impact international law, territoriality, and sovereignty, as well as to the role these technologies may play in law reform. The point is made that the current ‘effect-focused’ rules in both private international law and public international law (as those disciplines are traditionally defined), are likely to continue to work as an incentive for the use of geo-location technologies.

Scope of (Remedial) Jurisdiction

2017 ◽  
Author(s):  
Dan Jerker B. Svantesson
Keyword(s):  
International Law ◽  
Private International Law ◽  
Online Environment ◽  
Public International Law ◽  
Current Practices

This chapterdraws attention to a new category of jurisdiction, what we may term ‘scope of jurisdiction’, or ‘scope of remedial jurisdiction’, and explains why this category of jurisdiction is particularly important in the online environment. It thenprovides a coherent framework for how we ought to approach this type of jurisdiction. In doing so, it draws upon experiences from recent cases; in particular, the Google Spain (González) case and the Google Canada (Equustek) case, both of which provide important insights into current practices regarding territoriality in private international law, and perhaps to a lesser extent public international law (as traditionally distinguished).

Solving the Internet Jurisdiction Puzzle

2017 ◽  
Author(s):  
Dan Jerker B. Svantesson
Keyword(s):  
International Law ◽  
Cyber Security ◽  
Data Privacy ◽  
Modern World ◽  
The Internet ◽  
Private International Law ◽  
Reform Initiatives ◽  
Legal Principles ◽  
Privacy Law ◽  
History Of

Internet jurisdiction has emerged as one of the greatest and most urgent challenges online, severely affecting areas as diverse as e-commerce, data privacy, law enforcement, content take-downs, cloud computing, e-health, Cyber security, intellectual property, freedom of speech, and Cyberwar. In this innovative book, Professor Svantesson presents a vision for a new approach to Internet jurisdiction––for both private international law and public international law––based on sixteen years of research dedicated specifically to the topic. The book demonstrates that our current paradigm remains attached to a territorial thinking that is out of sync with our modern world, especially, but not only, online. Having made the claim that our adherence to the territoriality principle is based more on habit than on any clear and universally accepted legal principles, Professor Svantesson advances a new jurisprudential framework for how we approach jurisdiction. He also proposes several other reform initiatives such as the concept of ‘investigative jurisdiction’ and an approach to geo-blocking, aimed at equipping us to solve the Internet jurisdiction puzzle. In addition, the book provides a history of Internet jurisdiction, and challenges our traditional categorisation of different types of jurisdiction. It places Internet jurisdiction in a broader context and outlines methods for how properly to understand and work with rules of Internet jurisdiction. While Solving the Internet Puzzle paints a clear picture of the concerns involved and the problems that needs to be overcome, this book is distinctly aimed at finding practical solutions anchored in a solid theoretical framework.

scholarly journals Mercy towards decarceration: Examining the legal constraints on early release from prison

Incarceration ◽  
2020 ◽  
Vol 2 (1) ◽  
pp. 263266632097780
Author(s):  
Alexandra Cox ◽  
Dwayne Betts
Keyword(s):  
United States ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Family Members ◽  
The United States ◽  
Early Release ◽  
The Us ◽  
Legal Constraints ◽  
Release From Prison

There are close to seven million people under correctional supervision in the United States, both in prison and in the community. The US criminal justice system is widely regarded as an inherently unmerciful institution by scholars and policymakers but also by people who have spent time in prison and their family members; it is deeply punitive, racist, expansive and damaging in its reach. In this article, we probe the meanings of mercy for the institution of parole.

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