18-19), the Permanent Court of International Justice recognized that jurisdiction to enforce was strictly territorial but that the same was not true of jurisdiction to prescribe and jurisdiction to adjudicate.

This is the approach the ICJ has repeatedly applied in areas ranging from the law of the sea (North Sea Continental Shelf) to the jurisdictional immunities of states (Jurisdictional Immunities of the State). A French View”, 31(4). In a recent post, Dean Austen Parrish took issue with some statements about the customary international law governing jurisdiction in the Restatement (Fourth) of Foreign Relations Law. The specific bases for prescriptive jurisdiction set forth in the Restatement (Fourth) are largely the same as those found in Sections 402 and 404 of the Restatement (Third).

One of the objectives of the Restatement (Fourth) is to clarify distinctions among different kinds of jurisdiction under international law. There was no analysis of opinio juris—whether any of the practice was followed out of a sense of international legal obligation.

But the question whether customary international law places limits on adjudicative jurisdiction (other than immunity) was not one of them. The practice of the European Union is particularly revealing on this point.

Sections 407-413 of the Restatement (Fourth) (Section 211-217 in Jurisdiction Tentative Draft No. With respect to jurisdiction to prescribe, Section 407 states the basic rule: “Customary international law permits exercises of prescriptive jurisdiction if there is a genuine connection between the subject of the regulation and the state seeking to regulate.” In this post, I seek to correct a few misimpressions about the Restatement (Fourth) and the customary international law governing jurisdiction.
The first misimpression to correct is Dean Parrish’s statement that “the Fourth Restatement does not purport to set out international law.” Quite the opposite is true. Users without a subscription are not able to see the full content. 336 Downloads; Part of the European Yearbook of International Economic Law book series (EUROYEAR, volume 3) Abstract. We also had the benefit of a separate international advisory panel of academics and lawyers from outside the United States. In association with the International Commission of Jurists, [William S. Dodge, Anthea Roberts, and Paul B. Stephan served as co-reporters for the jurisdictional sections of the Restatement (Fourth) of Foreign Relations Law. But the fact that many states maintain the right to exercise jurisdiction on other bases, and the fact that other states do not protest such exercises as violations of customary international law, forecloses the conclusion that the limits generally observed are followed out of a sense of legal obligation. transatlantic relations, Customary international law imposes different limits on a state’s exercise of jurisdiction, depending on what kind of jurisdiction is at issue. The point is that every question of customary international law addressed in the Restatement (Fourth) was vetted with a broad group of U.S. and foreign experts, and the statements about the customary international law of jurisdiction in the Restatement (Fourth) represent the best judgment of the ALI as to what that law is today. They write here in their personal capacities.].

Jurisdiction allows States to give effect to the sovereign independence which they are endowed with in a global system of formally equal States, through stating what . Its Introductory Note for the chapter on jurisdiction to adjudicate, the Restatement (Third) admitted “it is not always clear whether the principles governing jurisdiction to adjudicate are applied as requirements of public international law or as principles of national law.” It characterized the provisions that followed as “international rules and guidelines.” The substance of Section 421 strongly resembled the U.S. domestic law of personal jurisdiction as of 1986, and the reporters’ notes relied heavily on U.S. practice with some reference to U.K. law and the Brussels Regulation. (c) Copyright Oxford University Press, 2020.

With respect to jurisdiction to enforce, Section 432 states the traditional rule that enforcement jurisdiction is strictly territorial: “Under customary international law .
© 2020 Opinio Juris | Design by Minute Works | In association with the International Commission of Jurists. The Restatement (Third) did identify one particular state practice, the exercise of “tag” jurisdiction based on the service of process to a person with only a transitory presence in the jurisdiction, as “not generally acceptable under international law.” Section 421 comment e. Yet the U.S. Supreme Court rejected a constitutional challenge to this practice three years later in Burnham v. Superior Court of California. Stern, Brigitte, “Droit international public et sanctions unilatérales”, in Habib Gherari and Sandra Szurek (eds), Will, Ulrike, “The Extra-Jurisdictional Effects of Environmental Measures in the WTO Law Balancing Process”, 50(4), © Springer International Publishing AG 2018, Environmental Process and Production Methods (PPMs) in WTO Law, https://doi.org/10.1007/978-3-319-65726-4_5, European Yearbook of International Economic Law. As the reporters’ notes to Section 407 of the Restatement (Fourth) explain, “state practice does not support a requirement of case-by-case balancing to establish reasonableness as a matter of international law.” The Restatement (Fourth) does contain a provision on “Reasonableness in Interpretation”—Section 405 in the Restatement (Fourth) (Section 204 in Jurisdiction Tentative Draft No.

date: 08 October 2020. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. In The Lotus (pp. pp 67-84 | 2) observes, “[w]ith the significant exception of various forms of immunity, modern customary international law generally does not impose limits on jurisdiction to adjudicate.” (The Restatement (Fourth) does have a chapter on state immunity, although its focus is U.S. domestic law under the Foreign Sovereign Immunities Act rather than customary international law.). Customary international law evolves as state practice and opinio juris change. Our counselors included three former Legal Advisers of the U.S. State Department, one former Legal Adviser to the U.K. Foreign and Commonwealth Office, and one Judge of the International Court of Justice. The Restatement (Fourth) of Foreign Relations Law also discusses many rules of U.S. domestic law addressing different aspects of jurisdiction, including the presumption against extraterritoriality, personal jurisdiction, forum non conveniens, the act of state doctrine, the doctrine of foreign state compulsion, and the recognition of foreign judgments. It reflects the best judgment of the American Law Institute based on an evaluation of state practice and opinio juris today. This is certainly not how the EU member states see it. This service is more advanced with JavaScript available, Environmental Process and Production Methods (PPMs) in WTO Law A team of reporters was assigned to each project. But the question that concerns Dean Parrish is whether customary international law limits states in the exercise of personal jurisdiction, apart from questions of immunity. International Jurisdiction The International Court of Justice (ICJ) is the main judicial body of the United Nations, and it settles disagreements between member states of the United Nations.

Some bases for adjudicative jurisdiction are certainly considered exorbitant—tag jurisdiction in the United States or jurisdiction based on the nationality of the plaintiff in France, for examples—but these bases are not considered to violate customary international law. Post was not sent - check your email addresses! Mann's work in the 1980s, no analytical overview has been attempted of this crucial topic in international law: prescribing the admissible geographical reach of a State's laws.

Today, state practice and opinio juris demonstrate that jurisdiction to enforce remains strictly territorial, a rule restated in Section 432 of the Restatement (Fourth).

With respect to jurisdiction to prescribe, state practice and opinio juris have evolved (contrary to what The Lotus suggested) to require a “genuine connection” with the state seeking to regulate, a rule restated in Section 407 of the Restatement (Fourth). territoriality,

What is more, member states are required to recognize and enforce the judgments of other members states, including those rendered on exorbitant bases of jurisdiction against non-EU defendants (Article 36(1)). International Law Commission, July 2018. You could not be signed in, please check and try again. State practice today distinguishes among jurisdiction to prescribe, jurisdiction to adjudicate, and jurisdiction to enforce. subsidiarity, Cedric Ryngaert, author States often limit their jurisdiction to a greater extent than international law requires.

Parallel with the movement for the codification of international law, custom and treaties may co-exist on the same subject matter. The Customary International Law Rules on Prescriptive Jurisdiction. First Online: 31 January 2018.

Typically, this genuine connection is found in one or more of the recognized bases for prescriptive jurisdiction—territory, effects, active personality, passive personality, the protective principle, and universal jurisdiction (Sections 408-413). . A full list of the counselors, advisers, foreign advisers, and members consultative group for the Restatement (Fourth) is here.


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