Academic journal article Texas International Law Journal

The Illusion of Territorial Jurisdiction

Academic journal article Texas International Law Journal

The Illusion of Territorial Jurisdiction

Article excerpt

Table of Contents

Abstract.369

Introduction.370

I. Questioning Territorial Jurisdiction: The Vanishing Difference Between Strict Territoriality and Effects Jurisdiction.372

A. Between Geography and Metaphysics: MacLeod v. AttorneyGeneral for New South Wales and R. v. Keyn.374

B. Extending Territoriality: The Ambivalences of Effects Jurisdiction.379

II. The Ground that Moves Under Us: Manipulating Legal Territoriality.....382

A. Universality of Rights and Organizations....383

B. Mobile and Virtual Territoriality: Ships and Corporations......387

C. Anomalous Zones: Territories with Double Characteristics....389

III. Of Rules and Exceptions, or the Lack of Geographical Information in Law.393

IV. Towards Reconstructing International Jurisdiction.394

Conclusion.398

Introduction

According to the widely-received narrative about the rise and fall of territorial jurisdiction, territorial jurisdiction emerged in the 17th century alongside the territorial state. Territorial states created an interlocking territorial international order, often called the Westphalian order after the peace treaty that allegedly created it in 1648.1 Territoriality remained the organizing concept of the international order until around 1945, when it began its decline due to technological progress, which intensified after 1990.2 Before the 1920s, territorial jurisdiction "worked," but during the 20th century, "technical developments in the field of communications and of transmission of news and sound by telegram, telephone and wireless" disrupted the system by diminishing "the importance of mere physical distance-and therefore, of the territorial principle."3 Friedrich Mann laments "[t]he complications of modern life are responsible for the steadily increasing reluctance to 'localise' facts, events or relationships."4 Symeon Symeonides agrees: "With the advent of new transportation and communication means and the increased mobility of people, state boundaries became even less important, and Beale's insistence on territoriality as the dominant principle made even less sense than before."5 According to Kal Raustiala's authoritative history of jurisdiction in U.S. law, "[b]y the 1960s the idea that United States law was limited to American territory would seem quaint, almost a relic from another era."6 In this narrative tradition, the Internet is often portrayed as the pinnacle of this erosion of territory through technology.7 In the wake of territoriality, we have effects jurisdiction: Instead of asking, "Where did X event take place?" we ask, "Does X event have a large enough effect on us to justify the assertion of jurisdiction?"

Parts of this narrative have been challenged and reinterpreted during the last few years. The Westphalian legal order may have little to do with the Peace of Westphalia; territoriality may be traced back as early as the late 15th century,8 or it may have only become an accepted principle of political rule in the late 18th century.9 The Internet may not present as big of a shift as techno-libertarians and legal academics thought in the 1990s, because it only expands pre-existing types of communications and legal relations, which lawyers have gotten used to during the 20th century.10 This Article presents a different challenge, which uses both conceptual discussion and historical examples to display the illusory logic of territorial reasoning. Part I of this Article, relying primarily on late 19th-century case law, argues that territoriality is just as important today as it was in its alleged high point in the late 19th century-because effects jurisdiction is just as territorial as "strict" territorial jurisdiction. In fact, there is no meaningful difference between the two. Both effects jurisdiction and territorial jurisdiction utilize the same concepts, they just reach opposite conclusions. This is so because 19th-century decisions, while allegedly taking territoriality seriously, were in fact led to engage in similar metaphysical discussions on the location of the defendant's will or the place of her marital status, as modern courts are forced to do. …

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