Selfless Jurisdiction and the National Interest

This chapter examines the variables that may determine the exercise of jurisdiction in the common interest. It inquires what explanatory variables determine the dependent variable of the (non-)exercise of jurisdiction in the common interest, based on actual jurisdictional practice of states. However, the chapter’s approach is also normative where it seeks to justify particular interest-based practices of jurisdiction or recommends reform. The author argues that, realistically, bystander states are only likely to exercise selfless jurisdiction if this also serves their national interests. However, he submits that this limitation of cosmopolitan action need not be regrettable. Instead, it could be justified from a normative perspective. In particular, the variables determining the (non-)exercise of universal criminal jurisdiction as well as the jurisdictional extension of domestic economic regulation are discussed to support the argument.

The Selfless Exercise of Jurisdiction to Protect Human Rights and the Environment

This chapter analyses how selfless jurisdictional intervention plays out in respect of two ‘global values’ or ‘common interests’ which occupy a central place in the contemporary global justice discourse: human rights and environmental concerns. In particular, the chapter zooms in on instances of unilateral jurisdiction aimed at regulating business activities which adversely affect human rights and the environment. It is divided into four parts: the exercise of port state jurisdiction over foreign-flagged vessels engaged in illegal, unreported or unsustainable fishing, or which endanger the marine environment on the high seas; the imposition of trade measures in pursuit of global environmental objectives; the exercise of adjudicatory jurisdiction over corporate human rights abuses; and the territorial extension of data protection legislation to protect citizens’ data privacy from abuses committed and facilitated by Internet intermediaries.

Limitations to the Exercise of Prescriptive Jurisdiction in the Common Interest

This chapter examines what limitations should be imposed to render the exercise of ‘selfless’ jurisdiction reasonable. After introducing the concept of reasonableness, various jurisdictional mitigating mechanisms are discussed: international recognition of the pertinent common interest, democratic participation of those affected, recognizing foreign mechanisms providing equivalent protection, and transfers to, or compensation of, those affected. These mechanisms further the normative legitimacy of unilateral jurisdiction in the global interest as they take the human-centredness of cosmopolitanism truly seriously. They are designed to take account of the interests of all actors affected by state coercion and thus to limit jurisdictional overreach in violation of cosmopolitan tenets. They may appear to be ideal-typical constructions, but the author shows that they have a grounding in existing state and institutional practice, which makes further operationalization altogether feasible.

International Law and Cosmopolitanism

This chapter sets the stage by discussing realist and idealist approaches to international law. The author introduces the concepts of moral cosmopolitanism and ‘global justice’, and sets out how these concepts can influence norms of international law. The author goes on to formulate the guiding research question for the monograph, namely whether the international legal system can accommodate the exercise of ‘selfless’ unilateral jurisdiction, and whether there are indications in practice that such jurisdiction is indeed exercised. The author highlights in particular how the exercise of such jurisdiction raises concerns over extraterritoriality. The chapter ends with a discussion of the methodology used and an overview of the structure of the monograph.

Selfless Intervention

This chapter fleshes out how unilateral, ‘extraterritorial’ action could be justifiable. The starting point of the analysis is that, in light of institutional failures to protect common interests adequately, unilateral action may at times be necessary to dispense global corrective justice. The author ascertains whether there is such a thing as an ‘international community’, and whether individual states rather than international institutions can be entrusted with ‘selfless’ jurisdictional powers. While acknowledging the risk of self-serving behaviour, the author is inclined to support benevolent unilateralism as the alternative—no action—may be worse. He argues that the justification of such unilateralism should be sought in a reinterpretation of the notion of sovereignty, as well as in the substantive values supposedly furthered by unilateral action.