Title

A jurisprudential justification for extraterritoriality in (private) international law

Date of this Version

2015

Document Type

Journal Article

Publication Details

Published version

Svantesson, D. J. B. (2015). A jurisprudential justification for extraterritoriality in (private) international law. Santa Clara Journal of International Law, 13 (2), 517-571.

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© Copyright, Dan Svantesson, 2015

ISSN

2333-1186

Abstract

Extraterritoriality is a key concept in both public and private international law. Yet, scant attention has been given to the jurisprudential underpinnings of extraterritoriality and that of its Achilles’ heel—the enforcement difficulties commonly associated with extraterritorial claims. To fill this gap, the article undertakes a study of the writings of a selection of leading legal theorists (Fuller, Kelsen, Hart, Goldsmith, and Posner). The analysis of the findings of that study draws attention to (1) the “dual (or perhaps triple) role of law,” (2) the “reputational dimension of extraterritoriality,” (3) the option of “domestic enforceability of extraterritorial claims” through so-called “market destroying measures,” and (4) the necessary distinction between “bite jurisdiction” and “bark jurisdiction.” Stemming from this analysis,, it is proposed that neither the jurisprudential legitimacy, nor the practical utility of extraterritorial claims necessarily depend on the legal enforceability of those claims. And that, in any case, also extraterritorial clams that cannot be backed up by extraterritorial legal enforcement are, in legal positivist terms, backed by sanctions through the possibility of domestic legal enforceability of extraterritorial claims. Finally, a theoretical framework for assessing extraterritorial claims is presented. However, first, to prepare ground for the work described, the concept of extraterritoriality is discussed.