3.mills - Jurisdiccion

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R ETHINKING J URISDICTION IN
I NTERNATIONAL L AW
By A L E X M I L L S *
ABSTRACT
Jurisdiction has traditionally been considered in international law as purely
a question of the rights and powers of states. Conceived in this way, the
rules on jurisdiction serve the important function of delimiting (while accepting
some overlap of) state regulatory authority – the question of when a person
or event may be subject to national regulation – a function which is shared
with the cognate discipline of private international law. This article suggests
that the idea and the rules of jurisdiction in international law require reconcep-
tualisation in light of three developments. The first is the growing recognition
that in a range of circumstances the exercise of national jurisdiction may,
under international law, be a question of duty or obligation rather than right.
The second development is the increased acceptance that such jurisdictional
duties may in some circumstances be owed not only to other states but also
to private parties, particularly through the emergence and strengthening of
the doctrines of denial of justice and access to justice. The third development
is the widely recognised phenomenon known as party autonomy, under
which private parties in civil disputes have the power to confer jurisdiction
on national courts and to determine themselves which law governs their
relationships. In combination, these developments suggest the necessity of
rethinking the concept of jurisdiction in international law, to reflect the
more complex realities of an international legal order under which states pos-
sess both jurisdictional rights and obligations and are no longer the exclusive
actors.
Keywords: Jurisdiction, universal jurisdiction, sovereignty, denial of justice,
access to justice, party autonomy, state immunity, forum of necessity.
*Reader in Public and Private International Law, Faculty of Laws, University College London,
[email protected]. Earlier versions of this article were presented at the Cambridge Journal of
International and Comparative Law Conference in May 2012, as part of the Scrymgeour Seminar
Series at the University of Dundee in November 2012, at the American Society of International Law
Research Forum in November 2013, and as part of the International Law Association British Branch
lecture series in February 2014. I would like to record my gratitude to the organisers of each event
and to the Editors of the British Yearbook of International Law.
............................................................................
The British Yearbook of International Law (2014), Vol. 84 No. 1, 187–239
188 RE T HI NK I N G J UR I S D I C TI ON
I. INTRODUCTION
The regulation of the jurisdiction of states is an important aspect of

international law. This article argues, however, that it is also underdevel-
oped. It is important because it is at the heart of an international legal
order which seeks to provide for the lawful co-existence of sovereigns.
Rules of jurisdiction reflect fundamental requirements in the interna-
tional system which flow from the acceptance by states that there are
limits on their own regulatory authority, and that exercises of regulatory
authority by foreign sovereigns are themselves legitimate. These rules do
not pretend to eliminate entirely the possibility of overlapping regula-
tion. Some limited risk of potentially conflicting exercises of public
authority remains an accepted feature of international law, while the
risk of overlapping exercises of authority in questions of private law is
reduced through the closely related field of private international law.1
But without rules of jurisdiction such risk of overlap would be
much increased, and no dispute over whose regulatory authority
should apply to a person or event would be capable of being resolved
through law.
Despite the centrality of rules of jurisdiction in the international
order, the subject has not received very extensive scholarly attention.
Moreover, such attention as it does receive tends to involve a fairly
ritualised account of the standard ‘heads’ of jurisdiction, principally
based on territoriality and nationality, which are traditionally the
major grounds on which a state may (at its discretion) exercise regulatory
authority, as explored in section III. The origins of this approach
to jurisdiction may be found particularly in the scholarship of early
private international lawyers, also examined in section III, who viewed
themselves as working in a single discipline of ‘international law’. Rules
of private international law can also be understood as partially imple-
menting public international law jurisdictional constraints in the context
of private law disputes and relations. This account of jurisdiction has not
changed greatly since the nineteenth century – aside from a temporary
and regrettable digression into a ‘positivist’ model of plenary jurisdic-
tion, as discussed in section II – although debates have continued
concerning its boundaries, and some of its details have been progres-
sively clarified.
In contrast with this relatively static account of the rules of jurisdic-
tion, international law has changed in fundamental ways during this
period, in particular through the rise in recognition and importance of
non-state actors, including individuals as bearers of human rights.
Arguments are increasingly made that the foundations of international
1
On the relationship between public and private international law, see generally Alex Mills, The
Confluence of Public and Private International Law: Justice, Pluralism and Subsidiarity in the
International Constitutional Ordering of Private Law (CUP 2009).
RE T HI NK I N G J UR I S D I C TI ON 189
law have fundamentally shifted from state sovereignty to a greater con-

cern with ‘humanity’,2 or from sovereignty as ‘right’ to sovereignty as
‘responsibility’.3 As expressed by the International Criminal Tribunal
for the former Yugoslavia:
. . . the impetuous development and propagation in the international community
of human rights doctrines, particularly after the adoption of the Universal
Declaration of Human Rights in 1948, has brought about significant changes
in international law, notably in the approach to problems besetting the world
community. A State-sovereignty-oriented approach has been gradually sup-
planted by a human-being-oriented approach. Gradually the maxim of
Roman law hominum causa omne jus constitutum est (all law is created for the
benefit of human beings) has gained a firm foothold in the international com-
munity as well.4
Private international law has equally undergone dramatic changes in the
modern era, not least through a parallel increased recognition of the
rights, interests and autonomy of private parties. These developments
invite consideration of the question whether jurisdiction in international
law itself requires rethinking.
Sections IV and V of this article focus on three main developments in
international law, public and private, arguing that they have potentially
significant implications for the international law of jurisdiction. First,
the growing recognition that states not only have regulatory power in
international law, they also have regulatory duties. Second, the increased
acceptance that such jurisdictional obligations may in a range of circum-
stances be owed not only to other states but also to private parties,
reflecting the increasing role of individual actors in international law,
in particular under the international legal doctrines of denial of justice
and access to justice. Third, the related and widely recognised phenom-
enon of party autonomy, under which private parties have the power to
confer jurisdiction on national courts in civil disputes and to choose
which law governs their legal relationships. In combination, these devel-
opments suggest the necessity of rethinking the concept of jurisdiction in
international law, to reflect the more complex realities of an international
2
See e.g. Ruti Teitel, Humanity’s Law (OUP 2011); Anne Peters, ‘Humanity as the a and ! of
Sovereignty’ (2009) 20 EJIL 513; Fernando R Tesón, ‘The Kantian Theory of International Law’
(1992) 92 Columbia Law Review 53; Louis B Sohn, ‘The New International Law: Protection of the
Rights of Individuals Rather Than States’ (1982) 32 American University Law Review 1.
3
See further e.g. ‘The Responsibility to Protect’, Report of the International Commission on
Intervention and State Sovereignty (2001) available at 5http://responsibilitytoprotect.org/
ICISS%20Report.pdf4 accessed 18 August 2014; Kofi Annan, ‘Two Concepts of Sovereignty’
(1999), The Economist, 16 September 1999 (available at www.economist.com/node/324795)
(‘States are now widely understood to be instruments at the service of their peoples, and not vice
versa. . . . When we read the Charter today, we are more than ever conscious that its aim is to protect
individual human beings, not to protect those who abuse them.’).
4
Prosecutor v Tadić (Jurisdictional Phase), Appeals Chamber, International Criminal Tribunal
for the former Yugoslavia, Decision of 2 October 1995, [97] available at www.icty.org/x/cases/tadic/
acdec/en/51002.htm accessed 18 August 2014.
legal order under which states possess both jurisdictional rights and
obligations and are no longer the exclusive actors.
II. THE LOTUS CASE ANOMALY: JURISDICTION AND THE LEGAL LIMITS
OF SOVEREIGNTY
Before examining the generally accepted traditional law of jurisdiction, it

is important to consider the apparent anomaly of the 1927 decision of the
Permanent Court of International Justice in the Lotus Case.5 In that case,
the PCIJ (in)famously held that:
Far from laying down a general prohibition to the effect that States may not
extend the application of their laws and the jurisdiction of their courts to per-
sons, property or acts outside their territory, it leaves them in this respect a wide
measure of discretion which is only limited in certain cases by prohibitive rules;
as regards other cases, every State remains free to adopt the principles which it
regards as best and most suitable.6
This statement appears to suggest that jurisdiction in international law is
plenary, but subject to defined prohibitions, rather than being based on
limited ‘heads’. Some scholars have found creative ways to interpret the
statement so that it accords with the generally accepted principles of
international jurisdiction, under which jurisdiction is based on limited
defined grounds. For example, it has been suggested that it relates only
to the plenary nature of territorial jurisdiction, or that it was intended
only to suggest that there are a range of grounds for extraterritorial
jurisdiction.7 These interpretations are perhaps assisted by the Court’s
further conclusion, shortly after the above passage, that:
all that can be required of a State is that it should not overstep the limits which
international law places upon its jurisdiction; within these limits, its title to
exercise jurisdiction rests in its sovereignty.8
Such interpretations do, however, have an air of revisionism about them,
and it may reasonably be concluded that the Court’s findings cannot be
read down so generously. While it should be noted that the decision was
adopted by only six out of the twelve judges on the Court, with the
President’s vote in its favour being decisive, it would, however, equally
be wrong to conclude that the Court was simply ‘mistaken’ in its conclu-
sions, even if its decision was out of step with approaches to international
5
SS ‘Lotus’ (France v Turkey) (1927) PCIJ Ser A, No 10.
6
Ibid, 18-19.
7
See e.g. F A Mann, ‘The Doctrine of Jurisdiction in International Law’, in Studies in
International Law (Clarendon Press, 1973) 27 (previously published in (1964-I) 111 Recueil des
Cours 1).
8
SS ‘Lotus’ (France v Turkey) (1927) PCIJ Ser A, No 10, p.19.
jurisdiction both before9 and after10 the judgment. Rather, the decision
can best be characterised as the ‘high water mark’ of a briefly dominant
but still highly influential theoretical approach to international law, gen-
erally known as international legal positivism.11
The origins of this approach are commonly identified in the work of
the nineteenth century legal philosopher, John Austin, although they are
also (less accurately) associated with his teacher, Jeremy Bentham.12
Internally, as a matter of domestic law, Austin viewed sovereignty as a
question of fact in that the power of the sovereign was above and beyond
the law, as the source of all legal authority lay in sovereign commands.
Externally, Austin viewed sovereignty as a question of fact in that ‘ob-
ligations’ on the international plane could only derive from the voluntary
acts of sovereigns: thus Austin rejected the idea that international law,
properly considered, was law.13
Although Austin denied that international law was a legal system, an
approach to international law nevertheless subsequently developed based
on the premises of his approach, viewing international law as a distinct
but ‘primitive’ form of law – the rules voluntarily adopted by and
between sovereign states. This theory of international law is generally,
although somewhat unfortunately, known as the ‘positivist’ perspective
on international law. The terminology is unfortunate because the name
reflects only the claimed methodological approach of those who
developed the theory, rather than characterising the theory itself – the
claim that their approach was empirical, inductive, and practice-
oriented, rather than following the natural law, deductive, theory-
oriented approach which had historically dominated thinking in
international law. There are of course many who adopt a modern posi-
tivist methodology to the study of international law (that is, inductive and
empirical), without adhering to what is usually described as ‘positivist’
theory. Indeed it is arguable that any genuinely ‘positivist’ methodo-
logical approach to analysis of the contemporary practice of states is
incompatible with the so-called ‘positivist’ theoretical approach.14 This
is because positivist international law theory can no longer lay claim to
9
See e.g. the 1883 Resolution of the Institut de Droit Internationale, ‘Règles relatives aux
conflits des lois pénales en matière de compétence’, available at 5http://www.idi-iil.org/idiF/
resolutionsF/1883_mun_04_fr.pdf4 accessed August 2014; Nationality Decrees Issued in Tunis and
Morocco (Advisory Opinion) (1924) PCIJ Series B, No. 4.
10
See also e.g. the ‘Draft Convention on Jurisdiction with Respect to Crime’ (1935) 29 AJIL
Supplement 435; Barcelona Traction, Light and Power Company (Belgium v Spain) [1970] ICJ 3,
103ff (Separate Opinion of Judge Fitzmaurice).
11
‘[T]he dictum represents the high water mark of laissez-faire in international relations, and an
era that has been significantly overtaken by other tendencies’: Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v Belgium) [2002] ICJ Reports 3, Joint Separate Opinion of
Judges Higgins, Kooijmans and Buergenthal, at [51].
12
See e.g. MW Janis, ‘Jeremy Bentham and the Fashioning of “International Law”’ (1984) 78
AJIL 405.
13
John Austin, The Province of Jurisprudence Determined (1832, reprinted Hackett Publishing
1998) 201.
14
See further Mills, The Confluence of Public and Private International Law, 37ff, 74ff.
being based on observation of current practice. While international legal

positivism has tended to describe itself as empirical and anti-theoretical,
the reality is that legal positivism itself became a theoretical construct
which led to conclusions which were (and are increasingly) out of step
with the accepted practice of states.
Although the tradition of positivist international law theory (as distin-
guished from methodology) may encompass a range of beliefs, it entails a
commitment to certain essential ideas. States are viewed as the key actors
in international law, and are formally independent, free, equal, and per-
haps most importantly ‘sovereign’. ‘Sovereignty’ has of course become a
greatly contested term, but the idea of state sovereignty in positivist
international law theory is that states possess at least some unrestricted
freedoms as an a priori consequence of their statehood. This freedom is
said to exist ‘prior’ to the law – thus, positivists argue that international
law can only exist where it is a voluntary expression of sovereign will.
Consequently, positivism emphasises individual state will as the sole
source of legal principles and their authority. As Oppenheim put it in
1905:
The Law of Nations is a law for the intercourse of States with one
another . . . As, however, there cannot be a sovereign authority above
the single sovereign states, the Law of Nations is a law between, not above,
the single States, and is, therefore, since Bentham, also called ‘International
Law.’15
According to Oppenheim, Bentham’s invention of the term ‘interna-
tional law’ was more than a semantic innovation in that it implied (cor-
rectly, in Oppenheim’s view) that the subject concerns only the law
which applies between sovereign states.
As jurisdiction is closely related to or even ‘an aspect of sovereignty’,16
the only limits on jurisdiction which may apply under a traditional posi-
tivist theoretical approach are those voluntarily adopted by states them-
selves. The starting point is that jurisdiction, like sovereignty itself, is
plenary and discretionary – the position adopted by the PCIJ in the Lotus
Case. Again, to put this in Oppenheim’s words:
States possessing independence and territorial as well as personal supremacy can
naturally extend or restrict their jurisdiction as far as they like.17
15
Lassa Oppenheim, International Law (1st edn, Longmans Green & Co 1905) Chapter 1, s.1.
16
James Crawford, Brownlie’s Principles of Public International Law (8th edn, OUP 2012) 456.
See similarly D W Bowett, ‘Jurisdiction: Changing Patterns of Authority Over Activities and
Resources’ (1982) 53 BYIL 1, 1, describing jurisdiction as ‘a manifestation of State sovereignty’.
17
Oppenheim, International Law, Chapter 1, s.143. Even Oppenheim, however, followed this by
stating that ‘as members of the Family of Nations and International Persons, the States must ex-
ercise self-restraint in the exercise of this natural power in the interest of one another’, and (impli-
citly recognising the disparity between the ‘positivist’ perspective and accepted practice) went on to
treat jurisdiction as based strictly on territoriality and nationality (with the exception of piracy),
arguing that even passive personality was an impermissible extension of jurisdiction.
This ‘positivist’ conception of sovereignty as an a priori value, above

international law, has fairly been described as ‘the quicksand on which
the foundations of traditional international law are built’.18 Because
jurisdiction is an aspect of this a priori sovereignty, this approach
means that the overlap between the regulatory powers of states is equally
unlimited – leaving resolution of conflicting jurisdictions to extra-legal
factors, principal among which will be the relative power of the
concerned states.
If the positivist idea of sovereignty was ever tenable – and there is good
reason to doubt that it ever was – this is no longer the case. International
law scholars have increasingly taken the view that the term ‘sovereignty’
means all and only those attributes which are given to a state under
international law – descriptive of the scope of state freedom as a legal
rather than factual matter.19 Sovereignty, in this conception, does not
define, but is defined by, the legal powers of a state within an interna-
tional society of states. It does not exist prior to law, but as a set of
attributes of the legal construct that is the state, existing as a consequence
of law. As one scholar expressed it, sovereignty is nothing more or less
than ‘the legal competence which states have in general’.20 Even
Oppenheim’s text on international law reflects this position in its
modern version, in a manner which is irreconcilable with the first edi-
tion, stating as follows:
There is . . . increasing acceptance that the rules of international law are the
foundation upon which the rights of states rest, and no longer merely limitations
upon states’ rights which, in the absence of a rule of law to the contrary, are
unlimited. Although there are extensive areas in which international law accords
to states a large degree of freedom of action . . . it is important that freedom is
derived from a legal right and not from an assertion of unlimited will, and is
subject ultimately to regulation within the legal framework of the international
community.21
Under this conception of sovereignty as a product of (and not prior to)
law, the regulatory authority of states in international law is recognised
as the product of, and subject to, limits defined by public international
law rules of jurisdiction – indeed, this recognition also existed prior to
the Lotus Case and the era of positivist theory. The rules of international
jurisdiction authorise an exercise of regulatory authority in limited and
defined circumstances – an authorisation which can only be necessary
because a regulatory act would be prohibited in its absence. This is not to
deny that there may be additional limiting rules on jurisdiction
18
Philip C Jessup, A Modern Law of Nations (Macmillan 1948) 2.
19
Thus, ‘we can only know which states are sovereign, and what the extent of their sovereignty
is, when we know what the rules are’ – HLA Hart, The Concept of Law (2nd edn, Clarendon 1994)
223.
20
Ian Brownlie, Principles of Public International Law (7th edn, OUP 2008) 291.
21
Robert Jennings and Arthur Watts, Oppenheim’s International Law (9th edn, vol. 1, OUP 1992)
12.
(‘prohibitive rules’, to use the expression from the Lotus Case): interna-
tional law recognises a range of immunities and restrictions which limit
the exercise of what would otherwise be lawful jurisdiction. It is also not
to deny that overlapping jurisdiction remains under these rules; the over-
lap is, however, defined and limited by international law.
III. THE MODERN INTERNATIONAL LAW OF JURISDICTION: LIMITED

RIGHTS OF STATES
This section introduces the ‘standard’ account of jurisdiction in interna-

tional law, under which state power is generally conditioned on the
existence of a territorial or personal connection that is considered to
justify the imposition of a state’s regulatory authority, as a matter of
state discretion. It first considers the contours of these rules in public
international law, before turning to examine their close but perhaps
under-appreciated relationship with rules of private international law.
A. Public international law

In public international law, the ‘sovereignty’ of states has (despite Lotus)
become understood to be reflected in and constrained by rules of juris-
diction which define the limits of the powers of coexisting ‘sovereigns’,
in particular, the scope of regulatory authority of states in international
law. In public international law the term jurisdiction is used in a much
broader sense than it is used domestically or in private international law,
essentially encompassing any exercise of regulatory power – although the
general domestic sense of ‘jurisdiction’, relating specifically to the
powers of courts, is also (somewhat confusingly) used in international
legal scholarship to discuss the distinct issue of the regulatory power of
international courts and tribunals, which is not the subject of this
article.22
In the context of the rules on the regulatory authority of states, three
types of public international law jurisdiction are usually distinguished.23
These may overlap and thus the distinction is not always easy to
22
The concept of ‘jurisdiction’ in the field of human rights law has also developed its own
independent meaning, not considered in this article, which recognises that states may have extra-
territorial human rights obligations based on effective control over territory or persons. A state in
unlawful occupation of territory may thus be subject to jurisdictional obligations under human rights
law, even though it lacks jurisdictional rights as a matter of general international law. See generally
e.g. Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and
Policy (OUP 2011).
23
See generally Christopher Staker, ‘Jurisdiction’, in Malcolm D. Evans (ed), International Law
(4th edn, OUP 2014); Crawford, Brownlie’s Principles of Public International Law, 456; Third
Restatement (Foreign Relations) (1986) s.401; F A Mann, ‘The Doctrine of Jurisdiction Revisited
After Twenty Years’ (1984-III) 186 Recueil des Cours 19; Mann, The Doctrine of Jurisdiction in
International Law; Michael Akehurst, ‘Jurisdiction in International Law’ (1972-3) 46 BYIL 145.
maintain, nor is it universally accepted as reflecting international law,

but it nevertheless represents the generally accepted foundation of the
modern approach. The first type of jurisdiction is jurisdiction to pre-
scribe or legislate, or (roughly) the limits on the law-making powers of
government – the permissible scope of application of the laws of each
state.24 The second is jurisdiction to adjudicate, or (roughly) the limits
on the powers of the judicial branch of government.25 Although some
international lawyers have questioned the need for a separate category of
‘adjudicative jurisdiction’, few if any would maintain that adjudicative
jurisdiction is unregulated in international law – rather, it can be argued
that the conduct of the judiciary may be characterised as either prescrip-
tive (if the judge is participating in law-making, including through
interpretation of the scope of application of the law or development of
a common law system) or enforcement (if the judge is ordering the seiz-
ure of a person or assets).26 The third is jurisdiction to enforce, or
(roughly) the limits on the executive branch of government responsible
for implementing law, such as law enforcement agencies.27 Enforcement
jurisdiction is, in international law, almost exclusively territorial – the
police or similar forces of a given state may only operate within its
territory (including its coastal waters), in the absence of the authorisation
of other states or a special permissive rule under international law.28
The territorial character of enforcement jurisdiction is well estab-
lished, and an important reflection of the principle of non-intervention
in the internal affairs of other states. This article does not suggest any
need to re-examine this aspect of international jurisdiction, but rather
focuses on jurisdiction to prescribe and to adjudicate (excluding the
enforcement aspects of adjudication). It should be noted, however,
that while these aspects of jurisdiction are theoretically distinct, they
are not necessarily unrelated in practice – restrictions on the possibility
of effectively enforcing national laws or judgments might, for example,
be taken into consideration by a national legislature or court in deter-
mining whether to exercise prescriptive or adjudicative jurisdiction.
A state might, for example, have a policy against criminal proceedings
24
These may be exercised by any law-making body, which may include the legislature, judiciary,
or executive. See e.g. Third Restatement (Foreign Relations) (1986) ss.402-403.
25
See e.g. Third Restatement (Foreign Relations) (1986) ss.421-423.
26
See further e.g. Roger O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’ (2004) 2
Journal of International Criminal Justice 735, 737.
27
The definition of enforcement jurisdiction in the Third Restatement (Foreign Relations) (1986)
s.431 is somewhat broader than this, encompassing also local measures designed to induce a foreign
party into compliance. It therefore does not view such measures as strictly territorial in application,
although it does not contemplate enforcement action taking place outside the territory. See infra n 39
and accompanying text.
28
A well-known illustration of permission to enforce extra-territorially is the Scottish criminal
trial which took place on Dutch territory following the Lockerbie bombing, authorised under the
Agreement between the Government of the Kingdom of the Netherlands and the Government of the
United Kingdom of Great Britain and Northern Ireland concerning a Scottish Trial in the
Netherlands, 24 August 1998, UKTS No. 43 (1999). See further discussion in O’Keefe,
Universal Jurisdiction, 740.
in absentia, because an exercise of prescriptive jurisdiction in the absence

of the possibility of enforcement jurisdiction may be considered futile.
But the distinction between the categories of jurisdiction remains
important, even if it is not always clearly recognised in practice.29 In
relation to civil disputes, prescriptive and adjudicative jurisdiction are
also addressed through rules of private international law, as discussed
further below. Questions of jurisdiction in the public international law
sense are implemented in private international law both through rules of
‘jurisdiction’ (in the domestic sense) – determining when a court will
hear a case and thus exercise its prescriptive (and enforcement) powers
– and through rules of ‘choice of law’ – determining which law should
govern a dispute and thereby the scope of application of that law.
The boundaries of public international law prescriptive jurisdiction
are a matter of some controversy, but there is broad agreement on
the general framework. Principally, states are recognised as having
prescriptive jurisdiction based on one of two types of connecting factors
– territoriality, reflecting the intimate connection between territorial
control and statehood in international law, and nationality, reflecting
ideas of individual subjectivity to sovereign power.30 Arguments have
also been made for jurisdiction regarding matters of essential national
interest,31 and for universal jurisdiction in respect of matters which are
of fundamental concern to the international community as a whole,32
although many of these remain somewhat controversial.33
The primary source of regulatory authority for states in public inter-
national law is usually considered to be territorial. A state has jurisdic-
tion to regulate within its territory, including in respect of events,
persons or things in its territory (including cross-border events which
are only partially in its territory34), and, more controversially, external
acts which have ‘effects’ within its territory.35 As noted above,
29
See further O’Keefe, Universal Jurisdiction.
30
See e.g. Staker, Jurisdiction, 313ff; Crawford, Brownlie’s Principles of Public International
Law, 458ff; Third Restatement (Foreign Relations) (1986) s.402; Bowett, Jurisdiction: Changing
Patterns of Authority, 4ff; Akehurst, Jurisdiction in International Law, 152ff.
31
See e.g. Staker, Jurisdiction, 321; Crawford, Brownlie’s Principles of Public International
Law, 462; Third Restatement (Foreign Relations) (1986) s.402(3); Bowett, Jurisdiction: Changing
Patterns of Authority, 10; Akehurst, Jurisdiction in International Law, 157ff; see further Arrest
Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ Reports 3,
Separate Opinion of President Guillaume, at [6].
32
Staker, Jurisdiction, 322; Crawford, Brownlie’s Principles of Public International Law, 467ff;
Third Restatement (Foreign Relations) (1986) s.404; Bowett, Jurisdiction: Changing Patterns of
Authority, 11; Akehurst, Jurisdiction in International Law, 160ff.
33
See e.g. O’Keefe, Universal Jurisdiction; Arrest Warrant of 11 April 2000 (Democratic
Republic of the Congo v Belgium) [2002] ICJ Reports 3, particularly the Separate Opinion of
President Guillaume and the Joint Separate Opinion of Judges Higgins, Kooijmans and
Buergenthal.
34
A distinction is often drawn between ‘subjective’ territorial jurisdiction, which is based on the
location of the ‘subject’ of an act (the actor), and ‘objective’ territorial jurisdiction, which is based on
the location of the ‘object’ of the act – both are generally recognised under international law.
35
See generally Staker, Jurisdiction, 317-8; Crawford, Brownlie’s Principles of Public
International Law, 462ff; Austen Parrish, ‘The Effects Test: Extraterritoriality’s Fifth Business’
territoriality particularly dominates in the context of jurisdiction to

enforce, where it is normally considered to be the exclusive basis
for jurisdiction in the absence of special consensual arrangements.
In the context of jurisdiction to prescribe or adjudicate, territoriality is
supplemented by other bases of jurisdiction (including as discussed
below), but the dominant way in which state authority is defined and
justified, that is, by which the division of international regulatory
authority is organised, is by reference to territorial criteria. The idea
that territoriality should be the main basis of jurisdiction is often
reflected in a domestic legal presumption against the extraterritorial
application of legislation, re-articulated by the US Supreme Court in
Morrison v National Australia Bank (2010)36, although a broader
presumption against ‘extra-jurisdictionality’ (presuming that the reach
of domestic legislation comports with international law limits) is also
sometimes applied.37 The primacy of territorial regulation is coming
under challenge as a result of (arguably) ‘de-territorialised’ communica-
tions technologies, in particular the internet, although the extent to
which such developments pose more than a complex problem of appli-
cation for the existing legal framework remains contentious.38 Another
important challenge for jurisdictional rules, beyond the scope of this
article, is where a state uses territorial rules to project its regulatory
power extraterritorially in a more ‘informal’ way – for example, by
making access to local markets conditional on compliance with certain
norms.39
(2008) 61 Vanderbilt Law Review 1455; Third Restatement (Foreign Relations) (1986) s.402(1);
Akehurst, Jurisdiction in International Law, 153ff. Effects jurisdiction may in many cases be
more simply viewed as an example of objective territorial jurisdiction – a price fixing agreement
outside the United States between companies exporting goods to the United States may be regulated
under US law if it is directed to raising prices for goods within US territory. The doctrine is,
however, sometimes viewed as permitting jurisdiction over foreign events with only indirect con-
sequences in the United States, and in this form it would be an expansion of traditionally accepted
objective territorial jurisdiction.
36
561 US 247 (2010). The presumption was controversially applied to the Alien Tort Statute in
the case of Kiobel v Royal Dutch Petroleum, 569 US ___, 133 S.Ct. 1659 (2013). See further e.g.
Mann, The Doctrine of Jurisdiction in International Law, 21ff.
37
This is part of a broader presumption of compliance with international law (known in the
United States as the ‘Charming Betsy doctrine’, after Murray v The Charming Betsy, 6 US (2
Cranch) 64 (1804)), which includes compliance with the jurisdictional rules of international law.
The presumption against extra-jurisdictionality was clearly expressed in Story J’s judgment in The
Appollon, 22 US 362 (1824), which held (at 370) that ‘however general and comprehensive the
phrases used in our municipal laws may be, they must always be restricted in construction to
places and persons, upon whom the legislature has authority and jurisdiction’. See further e.g.
John H Knox, ‘A Presumption against Extrajurisdictionality’ (2010) 104 AJIL 351; United States
v Aluminum Co. of America, 148 F 2d 416, 443 (1945); United States v Palmer, 16 US 610, 631
(1818) (‘general words must . . . be limited to cases within the jurisdiction of the state’).
38
See generally e.g. Mills, The Confluence of Public and Private International Law, 244ff (with
numerous further references); Paul Schiff Bermann, ‘The Globalization of Jurisdiction’ (2002) 151
University of Pennsylvania Law Review 311; David R. Johnson and David G. Post, ‘Law and
Borders – The Rise of Law in Cyberspace’ (1996) 48 Stanford Law Review 1367.
39
See further Joanne Scott, ‘Extraterritoriality and Territorial Extension in EU Law’ (2014) 62
American Journal of Comparative Law 87.
Although international law rules on jurisdiction are traditionally

dominated by ideas of territoriality, there is also a strong role for
ideas and rules which are based on the personal identity of the parties,
generally through nationality. Under this approach, state regulatory
power is viewed as connected not with territorial control but with
the relationship between an individual (typically as a subject) and a
sovereign. This conception of jurisdiction thus implies that state author-
ity does not end at the national border, but attaches to people and
effectively travels with them. Where one state’s citizens are in
the territory of a foreign state, international law thus clearly
recognises and accepts the possibility of overlapping (and even
inconsistent) jurisdiction, but that possibility is at least minimised
by requiring a territorial or nationality basis for the exercise of
jurisdiction.
The most straightforward aspect of nationality-based jurisdiction is
the public international law rule that a state may exercise jurisdiction
over the conduct of its nationals, regardless of their territorial location
(sometimes referred to as the ‘active personality’ doctrine).40 Such jur-
isdiction is typically exercised in the context of criminal law, where a
state criminalises conduct by its nationals (who may be natural or legal
persons) regardless of where their acts take place.41 The power to regu-
late nationals extra-territorially is, however, usually only exercised in the
context of particularly serious crimes – suggesting a degree of deference
to the primacy of territorial jurisdiction. Jurisdiction based on national-
ity is also evident in the assertion by some states (most prominently, the
United States) of a right to tax nationals living and working outside the
territory of the state.42
The connecting factor of nationality also operates as a basis for juris-
diction in international law through the doctrine of ‘passive personal-
ity’.43 This is the rule that a state may assert regulatory authority in
protection of its own nationals, for example, in respect of crimes
committed or directed against its nationals by foreigners outside its
40
See generally Staker, Jurisdiction, 318; Crawford, Brownlie’s Principles of Public
International Law, 459-60; Third Restatement (Foreign Relations) (1986) s.402(2); Bowett,
Jurisdiction: Changing Patterns of Authority, 7ff; Akehurst, Jurisdiction in International Law,
156ff.
41
See e.g. Offences Against the Person Act 1861 (UK) ss.9, 57; Sexual Offenders Act 1997 (UK)
s.7; Anti-terrorism, Crime and Security Act 2001 (UK) s.109 (extending prescriptive jurisdiction
where ‘a national of the United Kingdom or a body incorporated under the law of any part of the
United Kingdom [commits a corruption offence] in a country or territory outside the United
Kingdom’); Crimes (Child Sex Tourism) Act 1994 (Australia). Some states have also asserted extra-
territorial jurisdiction in relation to crimes committed by their permanent residents – see e.g.
Akehurst, Jurisdiction in International Law, 156-7.
42
Third Restatement (Foreign Relations) (1986) ss.411-12.
43
See e.g. Staker, Jurisdiction, 326ff; Crawford, Brownlie’s Principles of Public International
Law, 461; Third Restatement (Foreign Relations) (1986) s.402(2) (see further Comment (g) and
Reporters’ Note 3); O’Keefe, Universal Jurisdiction, 739.
territory.44 Such an entitlement has traditionally been controversial, but

has been increasingly accepted by states, particularly in the context of
acts of terrorism which essentially target a state through targeting its
nationals.45
These different aspects of the public international law rules on juris-
diction have two key criteria in common. First, they all recognise that
jurisdiction is limited by positive grounds, and thus that an act of regu-
lation must be justifiable based on a positive rule conferring jurisdiction.
This contrasts with the approach under the Lotus Case, discussed above,
in which only the ‘absence of a prohibition’ is required for a regulatory
act to be lawful. Second, they treat jurisdiction as a question of state
power and right. The state is the exclusive agent recognised in these
rules, and within the boundaries they define (the permitted territorial
or personal justificatory criteria), the exercise of jurisdiction is entirely a
matter left to the discretion of each individual state – ‘Jurisdiction in-
volves a State’s right to exercise certain of its powers’.46
The various grounds of jurisdiction recognised in public international
law clearly accept the possibility of overlapping regulation – not only
where a state’s citizens are in a foreign territory, but also, for example,
where more than one state might have territorial jurisdiction (one ‘sub-
jective’, and one ‘objective’), or where more than one state might have
personality jurisdiction (one ‘active’, and one ‘passive’). It is clear that
this reflects a collective policy decision by states that there are situations
in which more than one state has a legitimate regulatory interest which
should be recognised as compatible with international law. Potentially
overlapping and even conflicting regulation47 is thus simply a part of the
reality of international law, albeit one which is much more limited under
44
Note e.g. the Comprehensive Crime Control Act (1984) 18 USC 1203 (US); Omnibus
Diplomatic Security and Antiterrorism Act (1986) 18 USC 2332 (US); Criminal Code
Amendment (Offences Against Australians) Act 2002 (Australia).
45
See e.g. International Convention for the Suppression of Terrorist Bombings (1997) Art
6(2)(a). The Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal in Arrest
Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ Reports 3
notes (at [47]) that ‘Passive personality jurisdiction, for so long regarded as controversial, is now
reflected . . . in the legislation of various countries . . . and today meets with relatively little opposition,
at least so far as a particular category of offences is concerned.’
46
Mann, The Doctrine of Jurisdiction in International Law, 3 (emphasis in original). Similarly,
‘[A] State is not required to legislate up to the full scope of the jurisdiction allowed by international
law’ – Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ
Reports 3, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, at [45].
47
Differing views may be taken on what is necessary for two regulations to ‘conflict’. The most
strict approach is that a conflict only exists where it is impossible to comply with two sets of rules.
Such an approach, however, tends not to acknowledge sufficiently that the decision to impose
limited or even no regulation on a particular field may itself be a regulatory decision – the absence
of regulation from one state may reflect a policy in favour of non-regulation or deregulation, which
may indeed come into conflict with any regulation from another state, even though compliance with
both sets of rules would be perfectly possible. A conflict of ‘regulation’ therefore does not necessarily
require a direct conflict between ‘rules’. There is a related and equally mistaken tendency in US
‘interest analysis’ approaches to private international law to consider that there is never a true
‘conflict of laws’ where only one state has sought to regulate an issue. See further Alex Mills,
‘The Identities of Private International Law – Lessons from the US and EU Revolutions’ (2013)
accepted jurisdictional rules than it would be under the Lotus Case

approach. This is not to deny that overlapping jurisdiction may be prob-
lematic, and that it would be helpful to develop principles of priority in
such cases. One such potential principle is the rule of ‘reasonableness’
which is accepted as part of US law, but not widely accepted as part of
international law, which requires comparing the strength of connections
which a person or activity has to different states, before determining
which state might most ‘reasonably’ impose its regulatory authority.48
B. Private international law

As noted above, matters of ‘jurisdiction’ in the public international law
sense are implemented in the field of private legal relations through
rules of private international law, including both rules of ‘jurisdiction’
– determining when a court will hear a case – and rules of ‘choice of law’
– determining which law governs a disputed issue and thereby the scope
of application of that law. The connection between public and private
international law was obscured around the beginning of the 20th century
by the focus in public international law on inter-state relations, and the
focus in private international law on private rights and interests.49 As the
scope of public international law has increasingly encompassed the regu-
lation of the relationship between states and individuals, there has also
been increasing recognition of the functional and doctrinal overlap be-
tween public and private international law – that private international
law constitutes a hidden (‘private’) dimension of international law.50
Although the existence of public international law limits on the
exercise of jurisdiction or the application of a particular law in civil
23 Duke Journal of Comparative and International Law 445, 459, 467; Brainerd Currie, Selected
Essays on the Conflict of Laws (Duke University Press 1963).
48
Third Restatement (Foreign Relations) (1986) s.403; see further e.g. Cedric Ryngaert,
Jurisdiction in International Law (OUP 2008); Bowett, Jurisdiction: Changing Patterns of
Authority, 14ff.
49
See generally Mills, The Identities of Private International Law.
50
See generally Mills, The Confluence of Public and Private International Law, Chapter 5; Alex
Mills, ‘Rediscovering the Public Dimension of Private International Law’ [2011] Hague Yearbook
of International Law; (2012) 30 The Netherlands Journal of Private International Law, Nederland
Internationaal Privaatrecht (NIPR) 371. See further e.g. Lucy Reed, ‘Mixed Private and Public Law
Solutions to International Cases’ (2003) 306 Recueil des Cours 177; Pascal Vareilles-Sommières, La
Compétence Internationale de L’État en Matière de Droit Privé (LGDJ 1997); Andrew L Strauss,
‘Beyond National Law: The Neglected Role of the International Law of Personal Jurisdiction in
Domestic Courts’ (1995) 36 Harvard International Law Journal 373; Campbell McLachlan, ‘The
Influence of International Law on Civil Jurisdiction’ (1993) 6 Hague Yearbook of International Law
125; Mann, The Doctrine of Jurisdiction Revisited After Twenty Years, 28; Harold G Maier,
‘Extraterritorial Jurisdiction at a Crossroads: An Intersection Between Public and Private
International Law’ (1982) 76 AJIL 280; A F Lowenfeld, ‘Public law in the international arena:
conflict of laws, international law, and some suggestions for their interaction’ (1979-II) 163 Recueil
des Cours 311; Mann, The Doctrine of Jurisdiction in International Law, 10ff; John R Stevenson,
‘The Relationship of Private International Law to Public International Law’ (1952) 5 Columbia
Law Review 561.
proceedings has occasionally been doubted,51 there is little in practice or

policy to support the idea that an assertion of jurisdiction or governing
law in civil proceedings is anything other than an exercise of state regu-
latory power which falls to be restricted by public international rules on
jurisdiction. The application of private law, no less than public law,
constrains and compels individual behaviour in pursuit of national
policy interests, and is ultimately backed up by the coercive power of
the state. The seizure of property to pay a debt is not characteristically
distinct from the seizure of property to pay a fine or tax; the choice by a
state to deal with, for example, defamation or competition law through
either criminal law or private law, a practice which varies significantly,
does not affect the fact that in either case the rules are performing an
important public regulatory function.52 While it is sometimes argued
that state practice suggests a lack of ‘interest’ in the jurisdictional rules
applicable to civil disputes, there are clear examples of such interven-
tions,53 and a lack of sufficient governmental interest to intervene in
specific cases should not be mistaken for a lack of state concern with
the effectiveness of its law and courts.
The efforts toward the international harmonisation of private interna-
tional law through treaties, spearheaded by the Hague Conference on
Private International Law,54 should be taken to reflect rather than
deny an underlying and deeper connection between public and private
international law.55 Such efforts are more analogous to the codification of
51
See e.g. Akehurst, Jurisdiction in International Law, 177, 182; for further examples see e.g.
Mann, The Doctrine of Jurisdiction in International Law, 14.
52
See e.g. Bowett, Jurisdiction: Changing Patterns of Authority, 2 (‘the formalistic labelling of
certain proceedings as criminal, and others as civil, simply conceals the similarity in nature and
purpose of the different legislative provisions’). Bowett, however, problematically suggests that
public international law jurisdictional restraints should not apply to ‘areas of civil jurisdiction con-
cerned solely with the enforcement of private rights’ (at 4), failing to recognise the well-known (in
private international law) circularity of such a ‘vested rights’ approach, which arises from the fact
that (unless the rights derive from an international or supranational source) it is national law which
determines whether such private rights in fact exist – itself a question of state public policy. See
further e.g. Mills, The Confluence of Public and Private International Law, 57; Mills, The
Identities of Private International Law, at 450ff.
53
For a recent example see e.g. the amicus submissions of the European Commission and
(jointly) the United Kingdom and the Netherlands in the Kiobel case, infra n 165 and n 166. See
further e.g. Uta Kohl, ‘Corporate Human Rights Accountability: The Objections of Western
Governments to the Alien Tort Statute’ (2014) 63 ICLQ 665; Roger O’Keefe, ‘Domestic Courts
as Agents of Development of the International Law of Jurisdiction’ (2013) 26 Leiden Journal of
International Law 541, 551ff; Mills, The Confluence of Public and Private International Law, 262ff;
Joseph Halpern, ‘“Exorbitant Jurisdiction” and the Brussels Convention: Toward a Theory of
Restraint’ (1983) 9 Yale Journal of World Public Order 369; L I De Winter, ‘Excessive
Jurisdiction in Private International Law’ (1968) 17 ICLQ 706; Kurt H. Nadelmann,
‘Jurisdictionally Improper Fora’, in HE Yntema et al. (eds), Twentieth Century Comparative and
Conflicts Law - Legal Essays in Honor of Hessel E. Yntema (A W Sijthoff, 1961), 321.
54
See further generally www.hcch.net.
55
See further e.g. Mills, The Confluence of Public and Private International Law, 215ff; Alex
Mills and Geert de Baere, ‘TMC Asser and Public and Private International Law: The life and
legacy of “a practical legal statesman”’ (2011) 42 Netherlands Yearbook of International Law 3.
rules of state immunity56 (an area of international law which has simi-
larly been developed principally through the practice of national courts
and legislatures57) than, for example, the harmonisation of rules of
national contract law (which do not possess a similar underlying inter-
national character). Rules of private international law are national in
their source, but nevertheless directly affect a state’s compliance with
its international obligations.
Whether or not an exercise of jurisdiction (in the international sense) is
permitted or compelled by national rules of private international law, the
question which generally concerns domestic courts, must of course be
carefully distinguished from the question of whether such an exercise of
jurisdiction is permitted as a matter of international law. National courts
may take a range of distinct policy considerations into account in deter-
mining whether domestic ‘jurisdiction’ may or should be exercised,
including factors which are not reflected in international rules of juris-
diction. Domestic law might even compel a national court to breach
international limits, giving rise to non-compliance with international
law. But the presence of additional domestic considerations does not
deny the relevance of international limits, and the existence of those
limits has shaped and continues to shape national rules of private inter-
national law.
Rules of private international law were in fact one of the most import-
ant foundations for the development of international law’s rules on
jurisdiction, reflecting the historical interdependence of public and
private international law.58 The idea of territoriality was expressed, for
example, in the first two ‘maxims’ of the Dutch eighteenth century
private international law scholar Ulrich Huber:
(1) The laws of each state have force within the limits of that government and
bind all subject to it, but not beyond.
(2) All persons within the limits of a government, whether they live there per-
manently or temporarily, are deemed to be subjects thereof.59
This approach viewed territoriality as the sole connecting factor which
would justify the exercise of jurisdiction, subsuming the idea of the
56
For example, under the United Nations Convention on the Jurisdictional Immunity of States
and Their Property (2004) (Adopted by the General Assembly of the United Nations on 2
December 2004. Not yet in force. See General Assembly resolution 59/38, annex, Official
Records of the General Assembly, Fifty-ninth Session, Supplement No. 49 (A/59/49).).
57
This phenomenon may be analysed as an example of horizontal ‘peer governance’ – see further
Alex Mills, ‘Variable Geometry, Peer Governance, and the Public International Perspective on
Private International Law’, in Diego Fernandez Arroyo and Horatia Muir Watt (eds), Private
International Law as Global Governance (OUP forthcoming 2014).
58
See further e.g. Alex Mills, ‘The Private History of International Law’ (2006) 55 ICLQ 1;
Mills, The Confluence of Public and Private International Law, Chapter 2; Mann, The Doctrine of
Jurisdiction in International Law, 16ff.
59
Cited and translated in Ernest G Lorenzen, ‘Huber’s De Conflictu Legum’ (1919) 13 Illinois
Law Review 375, 403.
‘subject’ (national) within the concept of living permanently or tempor-

arily within the (territorial) limits of a government.
The influence of territoriality is as pervasive in private international
law as it is in public international law, although subject to the same
possible challenges in light of de-territorialised communications technol-
ogies.60 The accepted grounds for the exercise of jurisdiction or appli-
cation of law in private law disputes before national courts are
predominantly territorial, although these can take a number of different
forms.61 While territoriality is behind a variety of private international
law rules, these rules may thus reflect a range of interpretations of what
territoriality means in practice and in different contexts, and different
views on the extent to which legislatures should decide these questions
generally or leave them to the courts to resolve on a case by case basis.
Traditional approaches to ‘jurisdiction’ in private international law,
referring to the adjudicatory power of national courts, have also at least
principally conceived of jurisdiction as a question of territorial power
and right for each state, like the approach taken in public international
law (as analysed in the previous section). Perhaps the most obvious (and
controversial) example of this idea of ‘jurisdiction as power’ is found in
the common law approach, under which a party who is physically pre-
sent in the territory at the time proceedings are commenced against them
is thereby considered to be potentially subject to the jurisdiction of the
courts.62 Jurisdiction is, in this conception, both a question of (territor-
ial) control over the person of the defendant,63 as well as a matter of state
right, as such an assertion of jurisdiction is a matter of discretion for the
courts, exercised through the doctrine of forum non conveniens.64 This
approach is, however, rightly considered to be controversial, because the
mere presence of the defendant subsequent to an alleged wrong does not
necessarily establish any connection between the dispute or defendant
and the territory which would support the exercise of jurisdiction as a
matter of public international law.65 Jurisdiction based on presence in
60
See generally e.g. Thomas Schultz, ‘Carving up the Internet: Jurisdiction, Legal Orders, and
the Private/Public International Law Interface’ (2008) 19 EJIL 799; Andrea Slane, ‘Tales, Techs,
and Territories: Private International Law, Globalization, and the Legal Construction of
Borderlessness on the Internet’ (2008) 71 Law and Contemporary Problems 129.
61
See further generally Mills, The Confluence of Public and Private International Law, 236ff.
62
See classically e.g. Maharanee of Baroda v Wildenstein [1972] 2 QB 283; in the US see e.g.
Burnham v Superior Court of California, 495 US 604 (1989); Grace v MacArthur, 170 F Supp 442
(1959) (in which presence in State airspace was considered sufficient to found territorial jurisdic-
tion). Mere presence would, however, no longer be considered to satisfy constitutional due process
limits on the exercise of jurisdiction in the United States.
63
The term ‘jurisdiction’ is even sometimes used to mean simply ‘territory’ – for the purposes of
the Civil Procedure Rules of the English courts, according to the definition in Part 2, ‘“jurisdiction”
means, unless the context requires otherwise, England and Wales and any part of the territorial
waters of the United Kingdom adjoining England and Wales’.
64
See classically e.g. The Spiliada [1987] AC 460.
65
See Crawford, Brownlie’s Principles of Public International Law, 474-5; Mills, The
Confluence of Public and Private International Law, 237ff. Note also the ALI/UNIDROIT
Principles of Transnational Civil Procedure, adopted in 2004, available at 5http://www.unidroit.
this way is an anachronistic product of the fact that the presence of the
defendant was historically necessary to permit civil jurisdiction under
the common law, because such jurisdiction was based on the physical
seizure of the person of the defendant. The issue has, however, reduced
in significance because in practice, through the doctrine of forum non
conveniens, jurisdiction based on bare presence will not generally be
exercised.
Other less controversial common law territorial grounds for jurisdic-
tion (in the private international law sense) include claims ‘for an injunc-
tion ordering the defendant to do or refrain from doing an act within the
jurisdiction’, or ‘in respect of a breach of contract committed within the
jurisdiction’, or ‘in tort where . . . damage was sustained within the jur-
isdiction; or . . . resulted from an act committed within the jurisdiction’.66
Jurisdiction may be exercised where a dispute concerns moveable or
immovable property in the territory,67 but (regardless of other connec-
tions) may generally not be exercised where a dispute directly concerns
title to foreign immovable property.68 The territorial connection which
is recognised and relied on in each of these rules is based on the subject-
matter of the dispute, similar to the grounds of ‘specific jurisdiction’
under US law,69 and similar territorial bases of jurisdiction are also
commonly recognised under civil law systems.70 A different form of
territorial jurisdiction, usually referred to as ‘general jurisdiction’,
arises where the power to regulate the defendant is based on their
being ‘present’,71 ‘domiciled’,72 ‘resident’,73 or ‘at home’74 in the terri-
tory. This jurisdiction is based on the connection between the defendant
(rather than the dispute) and the territory, and may extend to the
defendant’s extraterritorial activities. Choice of law rules – reflecting
principles of prescriptive jurisdiction – also frequently rely on territorial
org/instruments/transnational-civil-procedure4 accessed August 2014, which state (in Comment P-

2B) that ‘Mere physical presence as a basis of jurisdiction within the American federation has
historical justification that is inapposite in modern international disputes.’
66
Civil Procedure Rules, Practice Direction 6B, Rule 3.1(2), (7) and (9). ‘Jurisdiction’ in this
context is defined to mean ‘territory’.
67
Civil Procedure Rules, Practice Direction 6B, Rule 3.1(11).
68
British South Africa Co. v Companhia de Moçambique [1893] AC 602; see similarly the French
Code of Civil Procedure, Article 44; Council Regulation (EC) No 44/2001 of 22 December 2000 on
Jurisdiction and the Recognition and Enforcement of Judgements in Civil and Commercial Matters,
EU OJ L 12, 16 January 2001 (henceforth, ‘Brussels I Regulation (2001)’), Article 22.
69
J. McIntyre Machinery, Ltd. v Nicastro, 564 US ___, 131 S. Ct. 2780 (2011); Burger King
Corp. v Rudzewicz, 471 US 462 (1985).
70
See e.g. the French Code of Civil Procedure, Article 46.
71
Adams v Cape Industries [1990] Ch 433.
72
Brussels I Regulation (2001), Articles 2, 59 and 60.
73
See e.g. the French Code of Civil Procedure, Articles 42-43.
74
Goodyear Dunlop Tires Operations, S. A. v Brown, 564 US ___, 131 S. Ct. 2846 (2011); Daimler
AG v Bauman, 134 S. Ct. 746 (2014). The Bauman decision is concerned with the constitutional
limits of jurisdiction under Due Process, rather than the grounds for jurisdiction, but in practice the
two questions are conflated in the case because Californian courts (like those of many other US
states) ‘may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or
of the United States’ – California Code of Civil Procedure x410.10.
connecting factors to determine the law which governs a private law

relationship, such as applying the law of the place of an alleged tort
(the lex loci delicti),75 or the law of the location of movable or immovable
property (the lex situs).76
Huber’s strictly territorial approach to jurisdiction was, however,
somewhat out of step with the practice of states – at least since the
medieval period it had been recognised that states could pass ‘personal’
laws which purported to affect their subjects extraterritorially77 – and
short-lived as a theoretical construct. His maxims were modified in
the work of Joseph Story in the early nineteenth century, who instead
proposed the following foundations for the law of international
jurisdiction:
the laws of one country can have no intrinsic force . . . except within the terri-
torial limits and jurisdiction of that country. They can bind only its own sub-
jects, and others, who are within its jurisdictional limits; and the latter only
while they remain there.78
This did not quite exclude the possibility of extraterritorial regulation
which might purport to affect a state’s own nationals – it is only regula-
tion of non-subjects which is strictly territorial in this formulation.
Story’s maxims of private international law were, correspondingly, a
subtle modification of Huber:
every nation possesses an exclusive sovereignty and jurisdiction within its own
territory;79
...
no state or nation can, by its laws, directly affect, or bind property out of its own
territory, or persons not resident therein;80
...
every nation has the right to bind its own subjects by its own laws in every other
place81
These rules set out the very clearly recognisable foundations of the
modern law of jurisdiction in international law, which accepts both
territorial and nationality-based prescriptive regulation (although it is
notable that Story’s maxims do not precisely distinguish jurisdiction
based on nationality and residence).
75
For example, Regulation (EC) No 864/2007 of the European Parliament and of the Council on
the law applicable to non-contractual obligations (Rome II), EU OJ L 199, 31 July 2007 (hence-
forth, ‘Rome II Regulation (2007)’), Art.4(1).
76
See e.g. Winkworth v Christie, Manson & Woods [1980] Ch 496; Glencore International A/G v
Metro Trading [2001] All ER (Comm) 103; French Civil Code, Article 3.
77
See further e.g. Mills, The Confluence of Public and Private International Law, 32ff.
78
Joseph Story, Commentary on the Conflict of Laws (Hilliard, Gray and Co 1834), s.7. See
similarly Story’s judgment on behalf of the Supreme Court in The Appollon, 22 US 362, 370 (1824).
79
Ibid, s.18.
80
Ibid, s.20.
81
Ibid, s.21.
Public international law principles of ‘personality’, like those of terri-

toriality, provide limited justifications for the exercise of regulatory
authority by states which are also reflected in private international law
rules of ‘jurisdiction’.82 These jurisdictional rules once again view states
as the exclusive actors, and jurisdiction as a limited but discretionary
domain for state regulation, in accordance with classical public interna-
tional law principles. Some states have traditionally asserted jurisdiction
based on the nationality of the defendant, reflecting a civil implementa-
tion of the public international law ‘active personality’ jurisdiction which
is more commonly asserted in the criminal context.83 Some states also,
perhaps more hesitantly, assert jurisdiction based on the nationality of
the claimant, reflecting again a civil implementation of public interna-
tional law jurisdiction, this time of the more controversial ‘passive per-
sonality’ doctrine.84 Choice of law rules – reflecting principles of
prescriptive jurisdiction – will also sometimes be based on personal con-
necting factors of the parties (such as a tort being governed by the law of
common habitual residence of the parties),85 although nationality is little
used as a connecting factor in the common law tradition. Indeed, nation-
ality appears to be generally declining as a connecting factor in private
international law, as it may be seen as contrary to other obligations which
require states not to treat parties differently on the basis of their nation-
ality. Obligations of non-discrimination on the grounds of nationality
arise under the law of the European Union (between Member States
only)86 and European Convention on Human Rights,87 for example,
and may also arise under international investment treaties.88
Private international law jurisdiction based on nationality is the
most straightforward implementation of public international law
‘personality’ jurisdiction. It may also be identified as strongly reflecting
82
See further generally Mills, The Confluence of Public and Private International Law, 248ff.
83
See e.g. French Civil Code, Article 15.
84
See e.g. French Civil Code, Article 14; Akehurst, Jurisdiction in International Law, 172ff. The
benefit of this rule is extended by Article 4(2) of the Brussels I Regulation (2001) to apply to all
nationals of EU Member States who are domiciled in France.
85
For example, under the Rome II Regulation (2007), Art.4(2); Babcock v Jackson (1963) 191 NE
2d 279 (NY).
86
Article 18, Treaty on European Union (consolidated version, OJ C 115/1, 9 May 2008). This is
the reason for Article 4(2) of the Brussels I Regulation (2001).
87
Article 14. This obligation only requires non-discrimination in the protection of other rights
under the Convention. An argument could be made that national rules of civil jurisdiction which
discriminate on the grounds of nationality, such as the special right of access provided under French
law to French nationals, could in fact violate the Convention because they might discriminate in
providing ‘access to justice’ in circumstances covered by the Convention – see further infra section
IV.B.2. In most such cases jurisdiction would, however, be governed by the Brussels I Regulation
(2001), which effectively excludes any role for nationality in claims brought by or against EU
domiciled parties (see Articles 2 and 4(2)).
88
Investment treaties often provide for obligations of non-discrimination (or ‘no less favourable
treatment’) on the basis of the nationality of the investor, which could be breached by the application
of a nationality-based choice of law rule – see e.g. Federico Ortino, ‘Non-Discriminatory Treatment
in Investment Disputes’, in P-M Dupuy, EU Petersmann and F Francioni (eds), Human Rights in
Investment Law and Arbitration (OUP 2009).
the traditional conception of public international jurisdiction as a matter

of state right and power, as it is states which set the conditions for the
conferral of nationality on individuals. In the context of private interna-
tional law, however, this picture is complicated by the existence of com-
peting ideas of ‘residence’ and ‘domicile’ as personal identifying or
connecting factors,89 the latter traditionally much preferred in the
common law in particular. While definitions of these factors may vary,
each involves a connection between a person and a place which reflects
some kind of habitual presence in and personal link with a territory. The
fact that these connecting factors are used and widely accepted in private
international law itself suggests that the treatment of territory and
nationality as discrete grounds for jurisdiction in traditional formulations
of international law jurisdiction is too restrictive. The practice of states
instead supports the idea that jurisdiction may be based on a flexible
combination of both territorial and personal connecting factors – con-
nections between a person and a place which do not depend on nation-
ality, such as domicile or habitual residence.
The use of domicile or residence as a connecting factor in private
international law also raises a further important issue with respect to
conceptions of jurisdiction in public international law. Determinations
of domicile and residence usually involve considering facts which are
more within the control of individuals than questions of nationality,
which are governed strictly by the state itself. A person’s domicile or
place of residence may to some extent reflect an individual choice about
where to live or permanently settle. Of course, states exert at least some
control over where individuals are permitted to live, and the reality is
that the supposed benefits of globalised free movement across state
boundaries only exist for a tiny privileged minority (with most ‘migrant
workers’ working outside their home state by economic necessity and at
risk of exploitation90). But within those boundaries, a limited possibility
remains for individuals to choose what ‘jurisdiction’ they are under.
Dual passport holders may, for example, freely decide whether to be
domiciled or resident in either state of nationality, thus (if these connect-
ing factors are relied on instead of nationality) partially determining
which court or courts may have jurisdiction over them, or which law
will govern their relationships or disputes. In practice, companies may
change their place of registration or central administration even more
readily. In the increased use of these criteria as connecting factors,
instead of the state-controlled criteria of nationality, we may perhaps
already see evidence for the contention, explored further below, that
89
See further generally Mills, The Confluence of Public and Private International Law, 250ff;
Bowett, Jurisdiction: Changing Patterns of Authority, 8-9.
90
See generally e.g. the United Nations International Convention on the Protection of the Rights
of All Migrant Workers and Members of Their Families (1990), monitored by the Committee on
Migrant Workers 5http://www.ohchr.org/EN/HRBodies/CMW/Pages/CMWIndex.aspx4accessed
18 August 2014.
individual autonomy is increasingly recognised as playing an important

role in questions of jurisdiction.
As noted, private international law rules on jurisdiction may recognise
that certain subject matters are so closely connected with a single state
that the courts of that state should have exclusive jurisdiction. In gen-
eral, however, rules of private international law function within a public
international law context in which overlapping jurisdiction is permitted,
because more than one state may have a basis for exercising jurisdiction
on territorial or personal grounds. Rules of private international law
similarly accept a wide range of grounds for national courts to exercise
jurisdiction over private law disputes, and thus readily accept the possi-
bility that more than one court may have jurisdiction based on territorial
or personal connections with the parties or the subject matter of their
dispute. Equally, more than one state might purport to apply its private
law to a dispute or relationship, based on territorial or personal connec-
tions. But private international law has also given rise to distinct
approaches to dealing with the conflicts which might potentially arise
from such overlaps,91 through the development of principles of jurisdic-
tional priority which seek to limit or resolve such potential parallel pro-
ceedings. Where proceedings can be commenced in more than one state,
courts may exercise jurisdictional deference, either because another court
is considered to be clearly more appropriate,92 or because the other court
was first seised of the dispute.93 Where foreign courts have already
determined an issue, their judgment will frequently be given an estoppel
effect which will function to prevent re-litigation of the issues, and (if
applicable) permit local enforcement of the foreign award, thus further
preventing potentially conflicting exercises of jurisdiction.94 And finally,
perhaps most distinctively, rules on choice of law generally require
courts to apply foreign substantive law where that law is most closely
connected to the dispute,95 and strive to harmonise choice of law rules so
that different courts will apply the same law96 – thereby both recognising
91
See supra n 47.
92
As under the common law – see, for example, The Abidin Daver [1984] AC 398; De Dampierre
v De Dampierre [1988] AC 92; Cleveland Museum of Art v Capricorn Art International [1990] 2 LLR
166.
93
As under the Brussels I Regulation (2001), Articles 27-28.
94
See generally e.g. Adams v Cape Industries [1990] Ch 433; Brussels I Regulation (2001),
Articles 32-56.
95
This principle was particularly influential under the common law ‘proper law of the contract’
approach. Some doubts may be expressed as to whether this approach is reflected in recent
European codifications of choice of law rules, which (arguably problematically) tend to favour
more rigid and incidental connecting factors rather than looking to the system of law most closely
connected to the dispute, in the interests of predictability and certainty, and in the service of the
efficient functioning of the internal market. See, for example, Article 4 of Regulation (EC) No 593/
2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to
contractual obligations (Rome I), EU OJ L 177, 4 July 2008 (henceforth, ‘Rome I Regulation
(2008)’); Mills, The Identities of Private International Law, 470.
96
See e.g. Rome I Regulation (2008), Recital 6; Rome II Regulation (2007), Recital 6. The
possible application of domestic public policy as a safety net to these rules does not undermine
a foreign state’s greater claim to substantive regulatory authority, and

aspiring to an objective of decisional harmony which would prevent a
substantive ‘conflict of laws’ from arising, even where more than one
court might have (private international law) jurisdiction.
It does not particularly matter whether this is viewed as an application
or enforcement by one state of another’s prescriptive jurisdiction, or
whether it is simply the forum state choosing to exercise its own pre-
scriptive jurisdiction to give effect to foreign law (a long-standing matter
of debate in private international law theory). In either case, the exercise
of international jurisdiction by each state aspires to avoid a conflict
through openness to the application of foreign rules which have a greater
‘connection’ to the dispute at hand, as determined and shaped by public
and private international law rules and principles. None of the conflict
avoidance techniques of private international law has been universally
accepted, nor does any form a clear part of the international law on
jurisdiction. But they show that in the private law context states have
engaged with the principles and problems of (potentially overlapping)
international jurisdiction in a more sophisticated and nuanced way than
is generally seen in the context of public international law.
IV. JURISDICTION AS A DUTY OF STATES
The remainder of this article considers challenges which have arisen to

the traditional idea of jurisdiction as a matter of right and power of states
under international law, based principally on connections of territoriality
or nationality. These challenges have come from developments in both
public international law and private international law, particularly
through the increased recognition given to individual actors in both
(closely related) fields. In order to highlight the connection between
developments in public and private international law, the focus of the
remaining sections is largely on adjudicative jurisdiction – as discussed
above, the sense in which the term jurisdiction is used in private inter-
national law – and on the prescriptive rather than enforcement compo-
nents of judicial proceedings. To understand the background to these
developments, it is first important to note another challenge to the trad-
itional approach to jurisdiction in international law – the growing recog-
nition that in some circumstances the exercise of national jurisdiction
may, under international law, be a question of duty or obligation rather
than right or discretion.97 To put this another way, the regulation of
jurisdiction in international law needs to be reconceived as not merely
a ‘ceiling’, defining the maximum limits of state power, but also (in some
their general character, particularly as the application of public policy should (and does) generally
reflect principles of proximity and relativity – see Alex Mills, ‘Dimensions of Public Policy in
Private International Law’ (2008) 4 Journal of Private International Law 201.
97
See supra n 46.
contexts) as a ‘floor’, reflecting minimum requirements for the exercise

of regulatory power by states in order to satisfy their international
obligations.
A. Jurisdictional duties owed to other states

States have increasingly agreed to various obligations under international
law under which they have constrained their traditional jurisdictional
discretion – either by prohibiting or mandating certain forms of regula-
tion. This is particularly the case in the context of obligations to crim-
inalise certain conduct and to submit individuals to prosecution which
exist across a range of international criminal law treaties, and perhaps
even (albeit more controversially98) as part of customary international
law. These treaties also (expressly or implicitly) require states to pass
domestic laws permitting or facilitating the exercise of such jurisdiction,
similarly fettering the discretionary nature of national prescriptive
jurisdiction.
These obligations usually include the exercise of jurisdiction in
relation to a state’s own territory or nationals. They are obligations to
exercise the recognised grounds of jurisdiction in international law, as
examined above, which are thereby transformed from jurisdictional
rights to duties. In some cases, the obligations go further, requiring
exercise of jurisdiction over any person found within the territory,
regardless of their nationality or of where the alleged crime was com-
mitted. For example, Article 7(1) of the Convention Against Torture
requires that ‘[t]he State Party in the territory under whose jurisdiction
a person alleged to have committed any offence referred to in article 4 is
found shall in the cases contemplated in article 5, if it does not extradite
him, submit the case to its competent authorities for the purpose of
prosecution.’ The obligation to exercise enforcement jurisdiction over
any person accused of certain conduct who is found in the territory
implies an obligation to exercise prescriptive jurisdiction over the con-
duct in question.99 Such obligations are thus effectively treaty-based
obligations of universal prescriptive jurisdiction, conditional on the pres-
ence of the defendant in the territory, which thereby extend the
98
The International Court of Justice elected not to comment on the customary status of the
obligation to extradite or prosecute in reference to crimes against humanity, in Questions relating to
the Obligation to Prosecute or Extradite (Belgium v Senegal) [2012] ICJ Reports 422. For the view
that it is not customary, see e.g. the Separate Opinion of President Guillaume, Arrest Warrant of 11
April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ Reports 3, at [12]; for the view
that it is, see e.g. ‘Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide,
Perpetration, Cumulative Charging’, Appeals Chamber, Special Tribunal for Lebanon, STL-11-
01/I/AC/R176bis, 16 February 2011, at [102]. See further Kimberley N Trapp, State Responsibility
for International Terrorism (OUP 2011) 84.
99
Trapp, State Responsibility for International Terrorism, 83, 101-3; see further Michael A
Newton, ‘Terrorist crimes and the aut dedere aut judicare obligation’, in L van den Herik and N
Schrijver (eds), Counter-Terrorism Strategies in a Fragmented International Legal Order (CUP 2013).
traditionally accepted boundaries of the jurisdiction of states.100 To put

this another way, the ‘floor’ provided by treaty-based jurisdictional
duties may in fact, in such circumstances, be higher than the traditional
‘ceiling’ provided by the general international law limitations on juris-
dictional rights.
Such jurisdictional duties, particularly although not only where they
expand the scope of accepted jurisdictional principles, may also come
into (apparent) conflict with traditional prohibitive rules on jurisdiction,
such as rules of immunity, which would normally require that jurisdic-
tional powers not be exercised. In such cases, the collective agreement to
establish an obligation to exercise jurisdiction may constitute an implied
determination that state immunity should not be applicable. This is
indeed the best interpretation of the decision of the House of Lords in
R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet
Ugarte (No. 3) (2000),101 which held that state immunity did not pre-
vent extradition proceedings against the former Chilean head of state
Pinochet, who was present at the time in the territory, in relation to
allegations of torture unconnected to the United Kingdom.102 The
treaty-based obligation to exercise universal jurisdiction, triggered by
Pinochet’s territorial presence, was held to exclude the possibility that
state immunity would prevent such an exercise of jurisdiction. Since the
Convention Against Torture defines torture as conduct performed or
instigated by a state official,103 recognising immunity for acts of torture
would have effectively negated the Convention’s obligation of universal
jurisdiction.
Through accepting jurisdictional obligations, states have increasingly
accepted the idea of jurisdiction as a matter of duty rather than right,
particularly (although not exclusively104) in the criminal context. In
international criminal law, many states have accepted the related idea
that a failure to submit those suspected of international crimes to pros-
ecution will lead to forfeiture of national jurisdiction, to be replaced by
obligations to transfer suspects to the International Criminal Court,
100
See Staker, Jurisdiction, 323. The Joint Separate Opinion of Judges Higgins, Kooijmans and
Buergenthal in Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002]
ICJ Reports 3, notes (at [46]) that:
There are, moreover, certain indications that a universal criminal jurisdiction for certain
international crimes is clearly not regarded as unlawful. The duty to prosecute under those
treaties which contain the aut dedere aut prosequi provisions opens the door to a jurisdiction
based on the heinous nature of the crime rather than on links of territoriality or nationality
(whether as perpetrator or victim). The 1949 Geneva Conventions lend support to this pos-
sibility, and are widely regarded as today reflecting customary international law.
See further ibid, at [28]-[41]; Separate Opinion of President Guillaume, at [7]-[9].

101
[2000] 1 AC 147.
102
See further discussion in Jones v Saudi Arabia [2006] UKHL 26.
103
Article 1(1), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (1984).
104
See further section B below.
under the principle of complementarity.105 Obligations which affect the

exercise of jurisdiction are not new – international law has long included
some obligations on states which (positively) require an ‘internal’ exer-
cise of their jurisdiction, or (negatively) limit their discretion to exercise
jurisdiction. The venerable rules on protection of diplomats and embas-
sies, for example, are generally considered to require the enactment and
enforcement of domestic legislation which should deter and punish harm
to either. Conversely, it has long been recognised that states may not
under international law exercise their jurisdiction (territorially or other-
wise) in relation to parties who have a recognised basis of international
immunity – as noted, this is one of the important ‘prohibitive rules’
which constrain the exercise of jurisdiction under international law,
and which may even appear to conflict with positive jurisdictional
duties. Similarly, while a state may generally have extraterritorial juris-
diction over its nationals, it could not legislate to require them to act in a
manner which would breach rules of international law, for example, by
interfering in the internal affairs of a foreign state.106
While rules of international law which affect the exercise of jurisdic-
tion may not be new, the fact that (particularly positive) jurisdictional
obligations have been recognised with growing frequency and scope sup-
ports the thesis of a broader shift in international law. International law
increasingly requires states to regulate not only their own (usually
executive) conduct, which does not necessarily require any exercise of
prescriptive or enforcement jurisdiction,107 but also the conduct of
natural and legal persons within the state’s territory, which will often
necessitate (and sometimes prohibit) an exercise of jurisdictional powers
which were previously discretionary. It is, of course, possible to quar-
antine the law of jurisdiction from these developments – to argue that,
while obligations may indeed have arisen in other areas of international
law, as a matter of jurisdiction states still possess discretionary powers.
If jurisdictional obligations were few and far between, there would be a
reasonable case for such an approach. But as international law pervades
the fabric of state law-making increasingly broadly and deeply, such an
approach would leave the law of jurisdiction artificially disconnected
from reality – this is indeed the condition which has generally afflicted
accounts of the law of international jurisdiction.108 International law is
no longer only the law of, for, or between states: it also regulates the
relations between states and individuals, particularly but not only those
in a state’s territory, through a combination of rights, duties and pro-
hibitions. As a consequence, the idea of jurisdiction in international law
105
Rome Statute of the International Criminal Court (1998), Article 17.
106
See further e.g. Akehurst, Jurisdiction in International Law, 188ff.
107
For example, the general prohibition on the use of force.
108
A comparable critique is suggested in Daniel Bethlehem, ‘The End of Geography: The
Changing Nature of the International System and the Challenge to International Law’ (2014) 25
EJIL 9, 22.
as a matter of state discretion should no longer be the starting point of

thinking on the subject, but should be replaced by an idea of state jur-
isdiction as a mixture of discretionary, mandatory and prohibitive
elements.
This idea of jurisdiction as a duty most typically arises in the context
of criminal law obligations, or in the context of obligations of human
rights protection. This means that such jurisdictional duties between
states tend to conceive of individuals as ‘objects’ of state jurisdiction,109
and in that sense as passive.110 The jurisdictional obligations on states to
bring their prescriptive and adjudicative authority to bear on questions
of individual responsibility for violations of international criminal law,
for example, are obligations owed by states to each other, in respect of
individuals, not to individuals. They do not challenge the authority of
state public power, but rather operate through its mechanisms, to that
extent implicitly reinforcing them. This is not to say that such jurisdic-
tional duties are not innovative – they are frequently concerned with the
regulation by a state of matters within its own territory (for example,
obligations to criminalise certain territorial conduct), which is in itself a
departure from the older idea of international law as concerned only with
relations between sovereign states. Jurisdictional duties, even owed by
states to each other, are part of the recognition that international law is
also concerned with the relations between states and individuals.
B. Jurisdictional duties owed to individuals

The increasing acceptance that international law concerns the regulation
of individuals and not only states has raised a further challenge – the
question whether individuals should be recognised as active agents or
‘subjects’ rather than passive ‘objects’ of regulation.111 There has been
an apparent ‘drift’ in the conception of the status of individuals under
109
‘But what is the real position of individuals in International Law, if they are not subjects
thereof? The answer can only be that they are objects of the Law of Nations.’ – Oppenheim,
International Law, 344.
110
It should be noted that individuals might be able to participate in judicial review of decisions
as to whether or not prosecutorial discretion is exercised: see e.g. The Chili Komitee Nederland
(CKN, Dutch branch of the Chile Committee) v Public Prosecutor, the Netherlands, Court of
Appeal of Amsterdam, 4 January 1995, (1997) 28 Netherlands Yearbook of International Law 363.
111
The validity and utility of the distinction between ‘subjects’ and ‘objects’ of international law
has long been debated – see e.g. Kate Parlett, The Individual in the International Legal System (CUP
2011) 353ff; Jean D’Aspremont (ed), Participants in the International Legal System: Multiple
Perspectives on Non-State Actors in International Law (Routledge 2011); Rosalyn Higgins,
Problems and Process: International Law and How We Use It (Clarendon Press 1994) 48ff. In my
view it is conceptually helpful to distinguish between active rights-holders and passive objects of
international law regulation, but it should be understood that this defines a spectrum rather than a
dichotomy, and that entities may fall along different points in the spectrum in different contexts.
The International Court of Justice long ago affirmed the possibility of such variation in legal ‘sub-
jectivity’ in its acknowledgement that ‘The subjects of law in any legal system are not necessarily
identical in their nature or in the extent of their rights’ – Reparations for Injuries Suffered in the
Service of the United Nations, Advisory Opinion, [1949] ICJ Reports 174, 178.
international law.112 Indeed Hersch Lauterpacht had already argued in

1946 that:
The individual is the ultimate unit of all law, international and municipal, in the
double sense that the obligations of international law are ultimately addressed to
him and that the development, the well-being, and the dignity of the individual
human being are a matter of direct concern to international law.113
Lauterpacht attributed this view to Grotius, arguing that it was part of
the ‘Grotian tradition’. Whatever the truth of this (somewhat dubious)
claim, there is little doubt that individuals have become a focus of con-
cern – that international law is no longer merely about inter-state rights
and obligations. One aspect of this broader phenomenon is that it is
increasingly (although not universally) recognised that individuals may
have ‘direct rights’ under international law114 – or to put this another
way, states may owe obligations not just in respect of individuals but also
to individuals. These obligations have arisen most prominently in two
discrete areas of international law which will be examined in turn, parts
of which also particularly affect the topic of jurisdiction – first, the law
applicable to the treatment of foreign nationals, in particular, the rules
concerning the delict of ‘denial of justice’; and second, human rights law,
in particular, the right of access to justice.
1. Denial of justice to foreign nationals

It has long been recognised that states owe obligations to meet a ‘min-
imum standard of treatment’ in respect of their dealings with each
other’s nationals. The standard of treatment includes a requirement
for states to afford ‘adequate judicial protection and effective legal reme-
dies for repairing invasions of rights’115 for foreigners, whether natural
or legal persons, typically through access to domestic courts.116 A breach
112
For a comprehensive analysis see Parlett, The Individual in the International Legal System;
see also Robert McCorquodale, ‘The Individual and the International Legal System’, in Malcolm D
Evans (ed), International Law (4th edn, OUP 2014); and more generally Roland Portmann, Legal
Personality in International Law (CUP 2010); Janne Elisabeth Nijman, The Concept of International
Legal Personality: An Inquiry into the History and Theory of International Law (T M C Asser Press
2004).
113
Hersch Lauterpacht, ‘The Grotian Tradition in International Law’ (1946) 23 BYIL 1, 27.
114
The point has been made most clearly by the International Court of Justice in relation to
rights of consular assistance – see LaGrand (Germany v US) [2001] ICJ Reports 466, at [77]; Avena
and Other Mexican Nationals (Mexico v US) (Judgment) [2004] ICJ Reports 12, at [40].
115
Andreas Hans Roth, The Minimum Standard of International Law Applied to Aliens (A W
Sijthoff 1949) 49.
116
The classical definition is provided by Emmerich de Vattel, The Law of Nations (1758), Book
II, Chapter XVIII, s.350, stating that ‘a refusal to hear your complaints or those of your subjects, or
to admit them to establish their right before the ordinary tribunals’ establishes a ‘denial of justice’.
According to Article 9 of the Harvard Research Draft of 1929:
A State is responsible if an injury to an alien results from a denial of justice. Denial of justice
exists when there is a denial, unwarranted delay or obstruction of access to courts, gross
deficiency in the administration of judicial or remedial process, failure to provide those
of this standard is considered to give rise to an international delict of

‘denial of justice’ – an established idea which has received new promin-
ence. The obligations of states are thus not limited to substantive stand-
ards of treatment towards foreign nationals, but also include adjudicative
obligations of providing access to redress for violations.117
As a counterpart to these obligations, foreign nationals were tradition-
ally expected to exhaust local remedies in the courts of the host state
before international claims could be brought.118 Although individuals
have not historically been considered as bearers of ‘rights’, in a sense
these jurisdictional requirements function mutually as between states
and individuals – the state is required to afford access to courts, and
the individual is expected to exercise it, before the state of nationality
may make any complaint about their treatment. Access to a court may be
required not only where the individual is mistreated by the state (typic-
ally leading to public law-style proceedings, such as judicial review), but
also where the individual is mistreated by another private party (typically
leading to a civil law claim, such as in contract or tort). Where a claim is
brought by a foreign national complaining about their treatment by the
host state itself, any failure of those local remedial processes may con-
stitute an additional international wrong, compounding the initial
wrongful treatment by the state. Where a foreign national suffers harm
due to the wrongful conduct of a private party, that wrong would not
ordinarily constitute a breach of the state’s international obligations be-
cause it would not be attributable to the state, but the failure to remedy it
through the actions or inactions of domestic courts could itself be a
breach of the international minimal standard. In such cases, a denial of
justice may be the only delict committed by the host state.
In either case, the test is not whether local law has been complied with
but whether an international standard of ‘justice’ has been met – a denial
of justice may be caused by a failure to exercise adjudicative jurisdiction
where a power to do so exists, but also by a failure to exercise adjudica-
tive jurisdiction because the courts are denied the power to hear the
claim of the injured party under local law. A state cannot limit its respon-
sibilities to foreign nationals by limiting the powers of its own courts. It
must not only comply with its own rules of jurisdiction, but those rules
must also comply with minimum standards of international law – stand-
ards which are admittedly yet to be fully and clearly articulated. In the
civil context, to put this simply, ‘A denial of justice may arise from the
guarantees which are generally considered indispensable to the proper administration of just-
ice, or a manifestly unjust judgment.
(1929) 23 AJIL Special Supplement 173. See also Alwyn Vernon Freeman, The International
Responsibility of States for Denial of Justice (Longmans Green & Co 1938).
117
See generally e.g. F V Garcia Amador, ‘Second Report on International Responsibility’, UN
Doc A/CN.4/106 (1957), at 110ff.
118
See further e.g. Chittharanjan Felix Amerasinghe, Local Remedies in International Law (2nd
edn, CUP 2004).
application of domestic notions of private international law where these

conflict with public international law rules’.119
Traditionally, the obligations of treatment of foreign nationals have
operated through the international law framework of diplomatic protec-
tion, and claims for violations of the standards in respect of any individ-
ual may only be made at the inter-state level and only by the state of
nationality. Thus, the Permanent Court of International Justice held
that:
It is an elementary principle of international law that a State is entitled to pro-
tect its subjects, when injured by acts contrary to international law committed
by another State, from whom they have been unable to obtain satisfaction
through the ordinary channels. By taking up the case of one of its subjects
and by resorting to diplomatic action or international judicial proceedings on
his behalf, a State is in reality asserting its own rights – its rights to ensure, in
the person of its subjects, respect for the rules of international law.120
Similarly, the International Court of Justice has held that:
within the limits prescribed by international law, a State may exercise diplo-
matic protection by whatever means and to whatever extent it thinks fit, for it is
its own right that the State is asserting.121
Thus formulated, the rules concerning denial of justice, and the standard
of treatment of foreign nationals more generally, are merely a further
example of jurisdictional duties which states owe to each other in respect
of individuals, not obligations owed directly to individuals. Under these
rules, ‘a person’s protection depended on the conduct of his state’, and
‘stateless persons were entitled to no protection whatsoever’.122 Because
a state is asserting its own rights, the possibility for individuals to receive
compensation for losses suffered due to violations of international law by
a foreign state is dependent on their home state being able and willing to
bring proceedings and to pass on any damages obtained – matters which
international law leaves to the discretion of individual states.
In the particular context of the treatment of foreign investors, this
traditional idea has however come under challenge through the rapid
development of international investment law and arbitration. States
across the world have entered into thousands of bilateral investment
treaties,123 which generally serve two functions. First, they define the
119
Ben Atkinson Wortley, ‘The Interaction of Public and Private International Law Today’
(1954-I) 85 Recueil des Cours 237, 310.
120
Mavrommatis Palestine Concessions Case (1924) PCIJ Series A, No. 2, 12. See also, similarly,
Factory at Chorzow (1928) PCIJ Series A, No.17; Panevezys-Saldutiskis Railway Case (1939) PCIJ
Series A/B, No.76.
121
Barcelona Traction, Light and Power Co. Case (Belgium v Spain) [1970] ICJ Reports 3, [78].
122
Sohn, The New International Law, 9.
123
See e.g. United Nations Conference on Trade and Development, World Investment Report
2013, x, 5http://unctad.org/en/PublicationsLibrary/wir2013_en.pdf4 accessed 18 August 2014,
(noting 3,196 international investment agreements).
substantive standards of treatment applicable to each state in respect of

foreign investors from the other state – these may reflect, clarify or go
beyond customary international law minimum standards. Second, and
more importantly for present purposes, they establish procedures under
which such investors may bring claims directly against the host state in
respect of their investment. Investors may thereby have their complaints
heard by an independent (‘private’124) arbitral tribunal, instead of
through national courts – and there have been hundreds of investor-
state arbitrations.125
Allegations of a denial of justice have been increasingly invoked in
claims arising under investment treaties, in particular as part of the
standard treaty requirement that ‘fair and equitable treatment’ must be
given to foreign investors, a test which is also sometimes taken to be
reflective of customary international law minimum standards of treat-
ment.126 The issue in these cases is whether a foreign investor has been
denied genuine or effective access to a remedy, in relation to violations of
their rights by either public or private parties. Few investment treaties
require exhaustion of local remedies, so an investor may directly com-
mence arbitral proceedings against a state for breaches of their rights by
a public authority of that state. If the investor is harmed by a private
party, or chooses (or is required) to bring domestic proceedings against a
public authority, denial of a remedy may mean that international arbi-
tration can still be pursued as a secondary claim arising out of denial of
justice.127
Although formally bilateral investment treaties apply between two
states, the imposition of obligations on those states with respect to pri-
vate investors, together with the creation of arbitral mechanisms for in-
vestors to enforce those obligations directly, means that international
investment law appears to create internationalised private rights which
are opposable to the state.128 Indeed, there is significant (albeit
124
On the public/private dimensions in the characterisation of international investment arbitra-
tion, see further Alex Mills, ‘Antinomies of Public and Private at the Foundations of International
Investment Law and Arbitration’ (2011) 14 Journal of International Economic Law 469.
125
See e.g. United Nations Conference on Trade and Development, ‘Recent Developments in
Investor–State Dispute Settlement, IIA Issues Note No. 1 (2013)’, 5http://unctad.org/en/
PublicationsLibrary/webdiaepcb2013d3_en.pdf4 accessed August 2014, 1 (noting 514 known inter-
national investment arbitrations).
126
See generally e.g. Francesco Francioni, ‘Access to Justice, Denial of Justice and International
Investment Law’ (2009) 20 EJIL 729; Jan Paulsson, Denial of Justice in International Law (CUP
2005); Andrea K. Bjorklund, ‘Reconciling State Sovereignty and Investor Protection in Denial of
Justice Claims’ (2005) 45 Virginia Journal of International Law 810.
127
See Francioni, Access to Justice, Denial of Justice and International Investment Law, 731ff.
The term ‘access to justice’ was also historically associated with this international standard – while it
is now much more commonly used in the distinct context of human rights law, there has been a
degree of cross-fertilisation between the two fields.
128
Whether a ‘right’ can only exist where the individual has control over the subject of the right
(eg through a means of individually vindicating the right) is a much-debated jurisprudential ques-
tion – see generally Kenneth Campbell, ‘Legal Rights’ (2013) Stanford Encyclopaedia of Philosophy
available at 5http://plato.stanford.edu/entries/legal-rights/4 accessed 18 August 2014. The present
article focuses on developments in international law under which individuals are given direct means
contested) authority for the view that this has the effect of ‘conferring or
creating direct rights in international law in favour of investors’.129
When combined with the idea of ‘denial of justice’, this means that in-
dividual investors may successfully demand that a state exercise adjudi-
cative or prescriptive jurisdiction to protect their rights, and may directly
pursue compensation to the extent that this is not done.130 The effect, if
not the form, is to internationalize these rights.
This development suggests the need to rethink the idea of jurisdiction
in international law. To the extent that states have agreed to individually
enforceable rights for foreign investors which extend to a right of access
to civil or administrative remedies in respect of their treatment by the
state, they have apparently agreed that they owe jurisdictional obligations
not only to foreign states but also to individuals. It is true that these rights
may be considered as products of state consent through treaties or even
(more controversially) customary international law, suggesting that the
individual ‘rights’ thus created can be accommodated within the existing
framework of jurisdictional rules. It can nevertheless also be argued that
of enforcement, as it is much less controversial to conclude that individuals bear rights in such
circumstances, but it should not be taken to argue that international rights are limited to such cases.
The International Court of Justice concluded that individuals have direct rights of consular access,
even in the absence of means through which individuals might vindicate those rights (other than
those provided by national courts): LaGrand (Germany v US) [2001] ICJ Reports 466, at [77].
129
Occidental Exploration & Production Company v Republic of Ecuador [2005] EWCA Civ 1116
(UK), at [18]. See also Corn Products International v Mexico, Decision on Responsibility, 15 January
2008, ICSID Case No. ARB(AF)/04/01, finding (at [168]-[169]) that ‘It is now clear that States are
not the only entities which can hold rights under international law; individuals and corporations may
also possess rights under international law’ and that ‘In the case of Chapter XI of the NAFTA, the
Tribunal considers that the intention of the Parties was to confer substantive rights directly upon
investors. That follows from the language used and is confirmed by the fact that Chapter XI confers
procedural rights upon them’. In Corn Products, the tribunal suggested (although not without am-
biguity) that this was always the case even under the traditional rules of diplomatic protection,
concluding (at [170]) that ‘It has long been the case that international lawyers have treated as a
fiction the notion that in diplomatic protection cases the State was asserting a right of its own’,
finding instead (at [173]) that ‘when a State claimed for a wrong done to its national it was in reality
acting on behalf of that national, rather than asserting a right of its own’. But for an opposing view
see e.g. Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc v Mexico,
Award, 21 November 2007, ICSID Case No. ARB(AF)/04/05, holding (at [169]) that ‘the investor
may bring the host State to an international arbitration in order to request compensation, but the
investor will be in reality stepping into the shoes and asserting the rights of the home State’; Loewen
v United States, Award, 26 June 2003, ICSID Case No. ARB(AF)/98/3, holding (at [233]) that
‘[t]here is no warrant for transferring rules derived from private law into a field of international law
where claimants are permitted for convenience to enforce what are in origin the rights of Party
states’. See further e.g. Patrick Dumberry and Erik Labelle-Eastaugh, ‘Non-state actors in inter-
national investment law’, in Jean d’Aspremont (ed), Participants in the International Legal System
(Routledge 2011); Zachary Douglas, ‘The Hybrid Foundations of Investment Treaty Arbitration’
(2003) 74 BYIL 151, 160ff.
130
Or, similarly, may pursue compensation to the extent that a state exercises adjudicative jurisdic-
tion beyond the permitted grounds under international law – see e.g. Vaughan Lowe, ‘Expert Opinion
on International Law Issues, in re: Yukos Oil Company, Case No. 04-47742-H3-11’, published in
(2005) 2(3) Transnational Dispute Management 5www.transnational-dispute-management.com/art
icle.asp?key¼4954 accessed August 2014; see further discussion in Giuditta Cordero Moss, ‘Between
Private and Public International Law: Exorbitant Jurisdiction as Illustrated by the Yukos Case’ (2007)
4(5) Transnational Dispute Management 5www.transnational-dispute-management.com/article.
asp?key¼11304 accessed August 2014 and (2007) 32 Review of Central and East European Law 1.
through the recognition of individuals as positive actors and jurisdictional

rights-bearers, the idea of jurisdiction as purely an expression of the
rights and powers of sovereign states requires reconceptualisation.
2. Human rights and access to justice

Alongside the development of obligations which relate to the treatment of
foreign nationals, particularly investors, international law has also de-
veloped obligations on states which relate to the treatment of all persons
– including each state’s own nationals – principally in the form of human
rights. These rights were largely developed and articulated in the after-
math of the Second World War (and particularly the Holocaust), as a
consequence of the realisation that it was unacceptable that ‘a state’s
own citizens were almost completely at its mercy, and international law
had little to say about mistreatment of persons by their own govern-
ment’.131 They have also included rights which relate to a state’s exercise
of adjudicative jurisdiction, generally under the rubric of rights of ‘access
to justice’,132 as well as access to an ‘effective remedy’ for violations of
other rights.133 A right of access to justice, including a right of access to a
court or tribunal, is an important feature of modern human rights law,
generally considered to apply even if no other human rights are at stake,
although its importance is enhanced where the substantive concerns in-
volve violations of other human rights. The European Court of Justice has,
for example, repeatedly emphasised the importance of rights of access to
justice in the context of sanctions against those suspected of direct or in-
direct involvement in terrorist activities, finding that such rights may not
be displaced, within the European constitutional order, even by a Chapter
VII resolution of the Security Council.134 Like the rules concerning denial
of justice, the standard of what ‘access to justice’ actually requires is (and
must be) international – a state cannot limit its international obligations
through restricting the capacity of its courts as a matter of domestic law,
and thus mere compliance with national rules of jurisdiction will not ne-
cessarily be sufficient to satisfy international jurisdictional obligations.135
131
132
See generally e.g. Francesco Francioni (ed), Access to Justice as a Human Right (OUP 2007);
see further the Italian counter-memorial in Jurisdictional Immunities of the State (Germany v Italy:
Greece intervening), 22 December 2009, 73ff. The term ‘denial of justice’ is sometimes used in this
context to refer to a failure to provide access to justice, although the term is more closely associated
with the rules concerning the treatment of foreign nationals which developed independently from
human rights law – as noted, there has been a degree of cross-fertilisation between the two fields.
133
See e.g. ICCPR Art.2(3).
134
Kadi v Council & Commission (Common foreign & security policy) [2008] EUECJ C-402/05
(03 September 2008); Yassin Abdullah Kadi, Re [2013] EUECJ C-584/10 (18 July 2013).
135
See e.g. Ashingdane v United Kingdom (8225/78) [1985] ECHR 8, holding (at [56]-[57]) that:
The applicant did have access to the High Court and then to the Court of Appeal, only to be
told that his actions were barred by operation of law . . . To this extent, he thus had access to
the remedies that existed within the domestic system. . . . This of itself does not necessarily
exhaust the requirements of Article 6 para. 1 (art. 6-1). It must still be established that the
Rights of access to justice have again been traditionally viewed as

obligations owed by states to each other, in respect of individuals,
rather than rights owed to individuals. Increasingly, however, the argu-
ment is made that individuals are, or are becoming, recognised as the
bearers of direct rights – as ‘international legal persons’ – under inter-
national law,136 in a manner equivalent to the recognition which has been
arguably accorded to foreign investors. International human rights law,
which is premised to some extent on a distrust of the treatment of indi-
viduals by states and governments, tends to be similarly distrustful of
mechanisms which would leave the enforcement of human rights entirely
in the hands of those same states and governments, and (as noted) having
a means of enforcement is often closely associated with the possession of
a legal right.137 Under the European Convention on Human Rights, for
example, the rights granted include the undertaking that ‘In the deter-
mination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by
law’138 – establishing not merely a right to a fair hearing, but a right of
access to justice, exercisable both through national courts and potentially
through proceedings before the European Court of Human Rights.139
The American Convention on Human Rights similarly provides that
‘Everyone has the right to simple and prompt recourse, or any other
effective recourse, to a competent court or tribunal for protection against
acts that violate his fundamental rights recognized by the constitution or
laws of the state concerned or by this Convention’,140 and provides for
individual access to justice through the Inter-American Commission on
degree of access afforded under the national legislation was sufficient to secure the individual’s
‘right to a court’, having regard to the rule of law in a democratic society
136
‘States have had to concede to ordinary human beings the status of subjects of international
law, to concede that individuals are no longer mere objects, mere pawns in the hands of states.’ –
137
The International Court of Justice has long drawn a link between international legal person-
ality and the possession of a means of vindicating rights – finding, for example, with respect to the
United Nations, that ‘if the Organization is recognized as having [international] personality, it is an
entity capable of availing itself of obligations incumbent upon its Members’ (178), and that ‘the
Court has come to the conclusion that the Organization is an international legal person . . . [i.e.] that
it is a subject of international law and capable of possessing international rights and duties, and that
it has capacity to maintain its rights by bringing international claims’ (179): Reparations for Injuries
Suffered in the Service of the United Nations, Advisory Opinion, [1949] ICJ Reports 174. It is at least
arguable that these contentions should also operate conversely – that the possession of enforceable
rights should imply the existence of legal personality.
138
Article 6(1).
139
See further e.g. Golder v United Kingdom (4451/70) [1975] 1 EHRR 524 (finding, at [35], that
‘The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of
the universally ‘recognised’ fundamental principles of law; the same is true of the principle of
international law which forbids the denial of justice.’); Airey v Ireland (6289/73) [1979] ECHR 3
(finding, at [24], that ‘The Convention is intended to guarantee not rights that are theoretical or
illusory but rights that are practical and effective . . . This is particularly so of the right of access to
the courts in view of the prominent place held in a democratic society by the right to a fair trial’).
140
Article 25(1).
Human Rights and Inter-American Court of Human Rights.141 In the

Convention Against Torture, there is an obligation on each state to
‘ensure in its legal system that the victim of an act of torture obtains
redress and has an enforceable right to fair and adequate compensa-
tion’.142 These developments signal at least a partial recognition of jur-
isdiction as a matter of international legal obligation owed to individuals.
The idea of access to justice is having a range of further effects on
private international law rules on jurisdiction. Traditionally, such rules
have focused on avoiding two potential harmful outcomes which could
be caused by exorbitant regulation – conflicts with foreign states, and
unfairness to defendants. These objectives are achieved through con-
straining the exercise of jurisdictional power by states, thus conceiving
of jurisdiction as a matter of limited state discretion. Increasingly, how-
ever, the counter-balancing concern of ensuring access to justice for
claimants, conceiving of jurisdiction as a matter of individual right, is
playing an important role in private international law.143 The influence
of access to justice is reshaping private international law in three distinct
ways which will be addressed in turn.
a. The design of jurisdictional rules
The first aspect of the increasing influence of ‘access to justice’ on pri-
vate international law is its impact on the development of jurisdictional
rules – the question of when national courts are considered to have
adjudicative authority over a civil dispute. This may be illustrated by
the Legislative Proposal,144 published by the European Commission on
14 December 2010, for reforming the Brussels I Regulation on
Jurisdiction and the Recognition and Enforcement of Judgments.145
The proposed reforms not only addressed a range of issues and concerns
with the functioning of the existing regime, but also suggested an im-
portant change in principle, with significant emphasis placed on access to
141
The Inter-American Court of Human Rights has even made the bold claim that ‘Access to
justice is a peremptory norm of international law’ (Case of Goiburú et al. v Paraguay, Judgment of
September 22, 2006 (Merits, Reparations and Costs), Series C, No. 153, at [131]), although perhaps
in context this is limited to the (still bold) claim that access to justice is peremptory if the norm
breached is peremptory. See further Juridical status and human rights of the child, Advisory Opinion
of August 28, 2002, Series A, No. 17, Concurring Opinion of Judge A. A. Cançado Trindade, [21]-
[22] – ‘The recognition of the individual as subject of both domestic law and international law,
represents a true juridical revolution. . . . This rendering of accounts would simply not have been
possible without the crystallization of the right of individual petition.’
142
Article 14(1), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (1984). See further infra text accompanying n 156.
143
See further generally J J Fawcett, ‘The Impact of Article 6(1) of the ECHR on Private
International Law’ (2007) 56 ICLQ 1. See also Amnesty International, ‘Injustice incorporated:
Corporate abuses and the human right to remedy’ (2014), POL 30/001/2014 available at 5http://
www.amnesty.org/en/library/info/POL30/001/2014/en4 accessed 18 August 2014.
144
Proposal for a Regulation of the European Parliament and of the Council on jurisdiction and
the recognition and enforcement of judgments in civil and commercial matters (Recast), COM(2010)
748 final, 2010/0383 (COD), 5http://ec.europa.eu/justice/policies/civil/docs/com_2010_748_en.
pdf4 accessed 18 August 2014.
145
Brussels I Regulation (2001) (supra n 68).
justice, alongside previously dominant considerations of internal market

efficiency and fairness to defendants. This had practical implications, in
particular the proposed introduction of a ‘forum of necessity’ rule, pro-
viding (subject to certain conditions) that ‘Where no court of a Member
State has jurisdiction under this Regulation, the courts of a Member
State may, on an exceptional basis, hear the case if the right to a fair
trial or the right to access to justice so requires’.146 Although this reform
was not adopted in the final version of the recast Brussels
I Regulation,147 this was not because it was particularly rejected, but
because the general idea of enlarging the scope of the Regulation to
cover non-EU domiciled defendants was at least deferred, and a forum
of necessity rule is not considered to be required for defendants domi-
ciled within the European Union, because at least one Member State
court will always have jurisdiction under the Regulation, and that court
will be presumed to be capable of delivering justice because its proced-
ures must comply with the European Convention on Human Rights. It
may be anticipated that a forum of necessity rule would form a part of
any future proposals on these questions within the European Union.
Similar ‘forum of necessity’ rules form part of the law of at least ten
Member States,148 including France, Germany, Austria,149 Belgium,150
the Netherlands,151 and Switzerland,152 and the rule has been included
146
See supra n 144, Article 26.
147
Recast Brussels I Regulation, No. 1215/2012, OJ L 351/1, 20 December 2012 (effective
January 2015).
148
See further generally Arnaud Nuyts, ‘Study on Residual Jurisdiction: General Report’ (2007),
64ff available at 5http://ec.europa.eu/civiljustice/news/docs/study_residual_jurisdiction_en.pdf4
accessed 18 August 2014. Chilenye Nwapi, ‘Jurisdiction by Necessity and the Regulation of the
Transnational Corporate Actor’ (2014) 30 Utrecht Journal of International and European Law 24.
149
The rule in France, Germany and Austria is based on case law – see Nuyts, Study on Residual
Jurisdiction, 66.
150
Article 11 of the Belgian Code of Private International Law, 16 July 2004, provides that:
Notwithstanding the other provisions of the present statute, the Belgian courts will excep-
tionally have jurisdiction when the subject matter presents close connections with Belgium
and proceedings abroad seem impossible or when it would be unreasonable to demand that the
action be brought abroad.
151
Article 9 of the Dutch Code of Civil Procedure provides that:
When Articles 2 up to and including 8 indicate that Dutch courts have no jurisdiction, then
they nevertheless have if: (a) the case concerns a legal relationship that only affects the inter-
ests of the involved parties themselves and the defendant or a party with an interest in the legal
proceedings has appeared in court, not exclusively or with the intention to dispute the juris-
diction of the Dutch court, unless there is no reasonable interest to conclude that the Dutch
court has jurisdiction; (b) a civil case outside the Netherlands appears to be impossible; or (c)
the legal proceedings, which are to be initiated by a writ of summons, have sufficient connec-
tion with the Dutch legal sphere and it would be unacceptable to demand from the plaintiff
that he submits the case to a judgment of a foreign court.
152
Article 3 of the Swiss Federal Act on Private International Law of 18 December 1987 pro-
vides that:
When this Act does not provide for jurisdiction in Switzerland and proceedings in a
foreign country are impossible or cannot reasonably be required, the Swiss judicial or
in another proposed EU Regulation dealing with matrimonial prop-

erty.153 The idea that jurisdiction may be justified on the basis of a
‘forum of necessity’ rule, even in the absence of the factual connections
traditionally considered necessary to justify the assertion of state power,
has also received legislative and judicial support in Canada.154
At the international level, the Convention Against Torture imposes an
obligation of access to justice on state parties in relation to victims of
torture. This obligation is subject to a disagreement as to whether it is
limited to acts of torture committed in the territory of the forum state, or
possibly by or against nationals of the forum state.155 The Committee
against Torture, which supervises compliance with the Convention, has
consistently taken the view that the obligation does not depend on trad-
itional jurisdictional connections of territory or nationality, particularly
where ‘a victim is unable to exercise the rights guaranteed under article
14 in the territory where the violation took place’.156 This might be
understood as an argument in favour of universal civil jurisdiction (in
the form of an obligation rather than a right157), subject to a requirement
to exhaust local remedies, or as a forum of necessity rule. In practice,
there is little significance in the distinction between these two positions,
aside from the possibility that a forum of necessity rule might have fur-
ther limitations based on the need for a ‘sufficient connection’.
Each of the ‘forum of necessity’ rules discussed above supports an
assertion of jurisdictional power (and even duty) to protect the rights
administrative authorities at the place with which the case has a sufficient connection have
jurisdiction.
153
Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and
enforcement of decisions in matters of matrimonial property regimes, COM(2011) 126 final, 2011/
0059 (CNS), 16 March 2011, Article 7:
Where no court of a Member State has jurisdiction under Articles 3, 4, 5 and 6, the courts of a
Member State may, exceptionally and if the case has a sufficient connection with that Member
State, rule on a matrimonial property regime case if proceedings would be impossible or
cannot reasonably be brought or conducted in a third State.
154
See e.g. Van Breda v Village Resorts Limited [2010] ONCA 84 at [54], [100]; Uniform
Court Jurisdiction and Proceedings Transfer Act s.6 available at 5http://www.ulcc.ca/en/uniform-acts-
new-order/current-uniform-acts/739-jurisdiction/civil-jurisdiction/1730-court-jurisdiction-proceedings-
transfer-act4 accessed August 2014, adopted in British Columbia and Nova Scotia; Quebec Civil Code,
Article 3136. See further John P McEvoy, ‘Forum of Necessity in Quebec Private International Law:
CcQ Article 3136’ (2005) 35 Review General 61.
155
See e.g. Jones v Saudi Arabia [2006] UKHL 26, at [20]-[25]; but see Committee against
Torture, Conclusions and recommendations, 34th Session, 2-20 May 2005, UN Doc. CAT/C/
CR/34/CAN, 7 July 2005, paras 4(g), 5(f)).
156
General Comment No. 3 of the Committee against Torture, 19 November 2012, UN Doc.
CAT/C/GC/3, at [22]. The Comment also clearly states (at [22]) that ‘The Committee considers that
the application of article 14 is not limited to victims who were harmed in the territory of the State
party or by or against nationals of the State party’, and (at [43]) that ‘The Committee considers
reservations which seek to limit the application of article 14 to be incompatible with the object and
purpose of the Convention.’
157
Curiously, the United States appears to take the position that while it does not have an obligation
of universal jurisdiction in respect of civil proceedings arising from torture (having expressly objected to
this reading of the Torture Convention), it has at least a conditional right of universal jurisdiction,
exercised through the Torture Victim Protection Act of 1991 – see infra text accompanying n 170.
of private parties in the absence of the connections of territory or na-

tionality which would traditionally be required under private or public
international law rules of jurisdiction. As in the context of treaty-based
universal jurisdiction, the ‘floor’ provided by jurisdictional duties (here,
to ensure access to justice) may be higher than the traditional ‘ceiling’ of
jurisdictional rules – requiring an additional evolution in our under-
standing of traditional jurisdiction.
These rules do not, however, necessarily suggest a ‘pure’ universal
civil jurisdiction: they may rely on some other factual connection in
order to justify the exercise of jurisdiction. Among EU Member
States, only the Dutch forum of necessity rule expressly provides that
no connection whatsoever with the Netherlands is required (where ‘a
civil case outside the Netherlands appears to be impossible’).158 Under
Swiss law, for example, it is necessary that the case has ‘a sufficient
connection’ with Switzerland for the court to exercise ‘forum of neces-
sity’ jurisdiction.159 There are a range of reasons why ‘pure’ universal
civil jurisdiction would be undesirable, not least the costs this would
impose on certain legal systems, the risks of overlapping and inconsistent
exercises of jurisdiction (although these might be reduced by rules of
jurisdictional priority or deference), the opportunities which would be
created for forum shopping, and the related risk that an exercise of jur-
isdiction becomes a form of ‘neo-colonial’ power which denies a state the
ability to resolve disputes which are internal or most closely connected to
it.160 However, a subsidiary forum of necessity jurisdiction could be (and
indeed commonly is) recognised in a more limited form. A national and
resident of State A, a state which does not adhere to the rule of law,
seriously injured by the brother of the President, subsequently fleeing in
fear to State B, might have no possibility to claim damages under trad-
itional jurisdictional grounds. In this context, the courts of State B might
exercise forum of necessity jurisdiction based on the subsequent
residence of the claimant in their territory. This factor is indeed the
connection most commonly relied on in EU Member States which
permit the assertion of forum of necessity jurisdiction based on a
158
Dutch Code of Civil Procedure, Article 9.
159
Swiss Federal Act on Private International Law, Article 3. Article 3136 of the Quebec Civil
Code similarly provides that ‘Even though a Quebec authority has no jurisdiction to hear a dispute,
it may hear it if the dispute has a sufficient connection with Quebec, where proceedings cannot pos-
sibly be instituted outside Quebec or where the institution of such proceedings outside Quebec
cannot reasonably be required’ (emphasis added). See also e.g. the Belgian rule, supra n 150,
which applies only ‘when the subject matter presents close connections with Belgium’. See also
similarly the ALI/UNIDROIT Principles of Transnational Civil Procedure, adopted in 2004 (see
supra n 65), Principle 2.2.
160
See further e.g. Donald Francis Donovan and Anthea Roberts, ‘The Emerging Recognition of
Universal Civil Jurisdiction’ (2006) 100 AJIL 142. Another way of understanding these concerns is
through the idea that rules of private international law should adopt and reflect a principle of
horizontal subsidiarity – see further Alex Mills, ‘Federalism in the European Union and the
United States: Subsidiarity, Private Law and the Conflict of Laws’ (2010) 32 University of
Pennsylvania Journal of International Law 369, 406ff; Ryngaert, Jurisdiction in International
Law, 211ff.
‘sufficient connection’.161 Such an approach enlarges traditional juris-

diction in the service of ensuring access to justice and avoiding impunity,
but maintains deference to the primacy of traditional jurisdictional rules.
Forum of necessity jurisdiction in this form is a secondary or subsidiary
basis for exercising regulatory authority. Access to justice does not ne-
cessarily mean abandoning existing jurisdictional rules altogether, nor a
global jurisdictional ‘free for all’.162
A similar ‘forum of necessity’-based expansion of civil jurisdiction was
contemplated, and indeed advocated by the European Commission,
before the US Supreme Court in Kiobel v Royal Dutch Petroleum
(2013).163 The Commission’s amicus brief argued that an exercise of
universal civil jurisdiction, not based on any traditional jurisdictional
grounds, would meet international jurisdictional standards where it
was necessary to prevent a ‘denial of justice’ (because no effective alter-
native forum was available, or where possible local remedies had been
exhausted).164 Such an approach, the Commission suggested, would be
‘consistent with the growing recognition in the international community
that an effective remedy for repugnant crimes in violation of fundamen-
tal human rights includes, as an essential component, civil reparations to
the victims.’165 The joint amicus brief of the United Kingdom and the
Netherlands argued, however, that the Alien Tort Statute should be
interpreted consistently with existing jurisdictional principles, ‘princi-
pally based on territoriality and nationality’.166 Ultimately, the Supreme
161
See further Nuyts, Study on Residual Jurisdiction, 66.
162
The Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and
Commercial Matters (2000) prepared for the Hague Conference on Private International Law, avail-
able at 5http://www.hcch.net/upload/wop/jdgmpd11.pdf4 accessed 18 August 2014, included a
controversial Article 18(3) permitting states to exercise ‘universal’ civil jurisdiction in respect of
serious international crimes. But this included a proposed qualification suggesting that such juris-
diction could only be exercised ‘if the party seeking relief is exposed to a risk of a denial of justice
because proceedings in another State are not possible or cannot reasonably be required’. The rule
thus implicitly recognised the primacy of the traditional grounds for jurisdiction.
163
133 S.Ct. 1659 (2013). The possibility of adopting a forum of necessity rule was discussed in
oral pleadings – see 5http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-
1491rearg.pdf4 accessed 18 August 2014, (at 13 and 46).
164
The two tests might differ if ‘exhaustion of local remedies’ is defined purely territorially. If a
national of state A commits a wrong in state B then travels to state C, the absence of an available
forum in state B might not preclude an exercise of universal jurisdiction by state C which was
conditional only on the exhaustion of ‘local’ remedies in state B, but forum of necessity jurisdiction
conditional on the absence of any alternative forum might still not be available (because state A
might have nationality-based jurisdiction). The difference between these two positions was poten-
tially decisive in the Kiobel case, in which it might have been possible to conclude that the Nigerian
courts were not an available forum, but proceedings could have been brought in the UK or the
Netherlands (the home jurisdictions of Royal Dutch Shell). The European Commission adopted the
position that ‘exhaustion of ‘local’ remedies requires a demonstration by the claimant that those
states with a traditional jurisdictional nexus to the conduct are unwilling or unable to proceed’,
making the two approaches identical, and thus suggesting that the exercise of jurisdiction in Kiobel
would not have been permissible under international law.
165
At p.18 available at 5http://www.americanbar.org/content/dam/aba/publications/supreme_
court_preview/briefs/10-1491_neither_amcu_eu.authcheckdam.pdf4 accessed August 2014.
166
‘The Governments strongly believe that such allegations of human rights violations should be
dealt with in an appropriate forum, respecting international law principles of jurisdiction. In relation
Court decided to adopt an even more conservative approach, based on a

presumption against the extraterritorial application of the Alien Tort
Statute,167 and thus did not directly address the scope of US jurisdiction
as a matter of international law, or whether the US constitution would
permit a forum of necessity approach.168 An approach similar to a ‘forum
of necessity’ rule is, however, notably adopted in the Torture Victim
Protection Act of 1991,169 which essentially provides for the possibility
of universal civil jurisdiction for claims arising out of torture, subject to
the rule that ‘A court shall decline to hear a claim under this section if the
claimant has not exhausted adequate and available remedies in the place
in which the conduct giving rise to the claim occurred.’170 As noted
above, a rule of universal jurisdiction which is subject to the exhaustion
of local remedies is functionally equivalent to a forum of necessity rule
which is subject to the non-availability of a traditional forum. In either
case, such a ground of jurisdiction goes clearly beyond traditional inter-
national grounds, in service of enhancing individual access to justice.
b. The exercise of jurisdictional discretion
The second effect of access to justice on private international law is in the
context of jurisdictional discretion (in legal systems which accept such a
discretion, such as those in the common law tradition) – the question of
whether a court will in fact exercise adjudicatory authority. While this
discretion is consistent with the traditional view of jurisdiction as a state
right, the increasing influence of access to justice as an international
requirement suggests a shift toward viewing jurisdiction as an obligation.
English courts, for example, have increasingly considered the avail-
ability of an alternative forum before which the claimant can practically
to claims of a civil nature, the bases for the exercise of civil jurisdiction under international law are
generally well-defined. They are principally based on territoriality and nationality. The basic prin-
ciples of international law have never included civil jurisdiction for claims by foreign nationals
against other foreign nationals for conduct abroad that have no sufficiently close connection with
the forum State.’ (at 6)
available at 5www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/10-
1491_neutralamcunetherlands-uk-greatbritain-andirelandgovs.authcheckdam.pdf4accessed August 2014.
167
569 US ___, 133 S.Ct. 1659 (2013). It should be noted, however, that the court left open the
possibility that extraterritorial jurisdiction might be asserted under the statute where ‘the claims
touch and concern the territory of the United States . . . with sufficient force to displace the pre-
sumption against extraterritorial application’ (slip opinion, 14). The minority suggested instead an
approach which arguably drew on the alternative ‘presumption against extra-jurisdictionality’ but
did not develop this approach in detail. See further e.g. Alex Mills, ‘Kiobel Insta-Symposium: A
Tale of Two Presumptions’, Opinio Juris, 18 April 2013, available at 5http://opiniojuris.org/2013/
04/18/kiobel-insta-symposium-a-tale-of-two-presumptions4 accessed August 2014.
168
There is very little support for a doctrine of forum of necessity in US law – indeed allowing
such a doctrine based on contacts between the claimant and the forum (as permitted under various
EU Member States) would seem to be inconsistent with the general approach that the constitution-
ality of an exercise of jurisdiction under the Due Process clause has ‘never been based on the
plaintiff’s relationship to the forum.’ Goodyear Dunlop Tires Operations, S. A. v Brown, 564 US
___, 131 S. Ct. 2846 (2011), at 2857 n.5.
169
28 USC x1350 Notes.
170
Section 2(b).
achieve justice to be one of the central questions in exercising the forum

non conveniens discretion.171 In the absence of such an alternative forum
English proceedings are highly likely to continue, to ensure that the
claimant has ‘access to justice’. In the United States, courts must con-
sider whether the exercise of jurisdiction is ‘reasonable’ as part of the test
for determining whether jurisdiction is compatible with constitutional
due process requirements, which also involves determining whether
there is an available alternative forum, as part of considering ‘the plain-
tiff’s interest in obtaining convenient and effective relief’.172 Even if
jurisdiction is constitutional, courts may decline to exercise it on the
basis of forum non conveniens (or possibly venue transfer rules if the al-
ternative forum is within the United States173), which again takes into
consideration, at least in principle, the need to ensure that another forum
is available in which the plaintiff might obtain a remedy.174 The absence
of a foreign court through which the claimant could obtain justice will
strongly increase the likelihood of an exercise of jurisdiction.
c. Access to justice and immunities
The effect of the development of principles of access to justice in inter-
national law also has implications when it comes to prohibitive rules on
jurisdiction in the form of the immunities recognised in international law
(which may be general state immunity, the personal immunity of heads
of state and other senior governmental officials, or the immunity of dip-
lomats, consular officials or representatives of or to international organ-
isations). Traditionally these immunities have been understood as
171
See e.g. Amin Rasheed v Kuwait Insurance Co [1984] AC 50; The Spiliada [1987] AC 460;
Connelly v RTZ [1998] AC 854; Lubbe v Cape Plc [2000] UKHL 41; Cherney v Deripaska [2009]
EWCA Civ 849.
172
World-Wide Volkswagen Corp. v Woodson, 444 US 286, 292 (1980). Note also McGee v
International Life Ins. Co., 355 US 220, 223 (1957) observing that ‘When claims were small or
moderate, individual claimants frequently could not afford the cost of bringing an action in a foreign
forum – thus in effect making the company judgment-proof’.
173
28 USC x1404(a).
174
See e.g. Gulf Oil Corp. v Gilbert, 330 US 501, 506-7 (1947), holding that ‘In all cases in which
the doctrine of forum non conveniens comes into play, it presupposes at least two forums in which the
defendant is amenable to process; the doctrine furnishes criteria for choice between them.
. . . [Jurisdictional statutes] are drawn with a necessary generality, and usually give a plaintiff a
choice of courts, so that he may be quite sure of some place in which to pursue his remedy.’
While the courts will not ordinarily refuse to stay proceedings merely because foreign law is less
advantageous to the plaintiff, ‘if the remedy provided by the alternative forum is so clearly inad-
equate or unsatisfactory that it is no remedy at all, the unfavorable change in law may be given
substantial weight; the district court may conclude that dismissal would not be in the interests of
justice’ – Piper Aircraft Co. v Reyno, 454 US 235, 254 (1981). It has been debated whether the courts
actually take such considerations into account sufficiently, or whether ‘the forum non conveniens
doctrine creates an access-to-justice gap in transnational cases’: Donald Earl Childress III, ‘Forum
Conveniens: The Search for a Convenient Forum in Transnational Cases’ (2013) 53 Virginia
Journal of International Law 157, 168 (suggesting at 178 that ‘many cases that are dismissed in
favor of a foreign forum are now being filed and tried successfully to judgment in a foreign court’);
Christopher A Whytock, ‘The Evolving Forum Shopping System’ (2011) 96 Cornell Law Review
481; David W Robertson, ‘Forum Non Conveniens in America and England: “A Rather Fantastic
Fiction”’ (1987) 103 Law Quarterly Review 398.
‘minimal’ standards for when a state may not assert jurisdiction – be-
cause the exercise of jurisdiction was understood to be a discretionary
matter of state right, there was no reason why a state might not give more
immunity than required under the rules of international law. The devel-
opment of principles of access to justice, however, requires a state to
exercise its jurisdictional powers, and perhaps to expand those jurisdic-
tional powers as a matter of domestic law to encompass internationally
permitted grounds for jurisdiction, or even to go beyond traditional
territorial or nationality-based jurisdiction.
It has long been debated whether these considerations should also
affect or override those of state immunity, particularly where the right
of access to justice arose from a violation of a peremptory norm of inter-
national law.175 The general conclusion has been that access to justice
does not require or permit states to exercise jurisdiction contrary to the
international law of state immunity – this approach has been adopted by
most national courts and tribunals, and also by the International Court
of Justice.176 States however still find themselves caught between the
two opposing international legal forces of access to justice and immunity
law. Where both come into play, the effect is that states must give im-
munity when required by international law, but must not go beyond what
is required by international law – they must otherwise exercise their
jurisdiction.177 To exercise too little jurisdiction would be to deny
access to justice; to exercise too much would be to infringe state
immunity.
By way of illustration, the UK Employment Appeal Tribunal held
that the immunity extended to foreign states under the State
Immunity Act 1978 in relation to suits under employment contracts
went beyond what was required under international law – and even
(controversially) went so far as to find that the Act should be set aside
175
Compare, for example, Roger O’Keefe, ‘State Immunity and Human Rights: Heads and
Walls, Hearts and Minds’ (2011) 44 Vanderbilt Journal of Transnational Law 999; Beth
Stephens, ‘Abusing the Authority of the State: Denying Foreign Official Immunity for Egregious
Human Rights Abuses’ (2011) 44 Vanderbilt Journal of Transnational Law 1163. On the tension
between access to justice and state immunity see further e.g. Christopher A Whytock, ‘Foreign State
Immunity and the Right to Court Access’ (2013) 93 Boston University Law Review 2033.
176
See generally Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), 22
December 2009. For critical comment see Alex Mills and Kimberley Trapp, ‘Smooth Runs the
Water Where the Brook is Deep: The Obscured Complexities of Germany v Italy’ (2012) 1
Cambridge Journal of International and Comparative Law 153. If access to justice does indeed
not ‘trump’ immunity, the better view is that this is not because access to justice is not engaged
where immunity exists (the view adopted by the House of Lords in Holland v Lampen-Wolfe [2000]
UKHL 40 and Jones v Saudi Arabia [2006] UKHL 26), but because compliance with immunity
obligations provides a sufficient reason for non-compliance with access to justice obligations (the
view adopted by the European Court of Human Rights in Al-Adsani v United Kingdom (2001) 34
EHRR 273). While the two approaches would lead to the same outcome, the former approach
wrongly suggests a hierarchy between the two international obligations, while the latter accepts
their equivalence but interprets them to be compatible. For an alternative approach to reconciling
the two norms, see Whytock, ‘Foreign State Immunity and the Right to Court Access’.
177
Al-Adsani v United Kingdom (2001) 34 EHRR 273 (ECHR); Jones v Saudi Arabia [2006]
UKHL 26; Jones v United Kingdom (2014) Case nos. 34356/06, 40528/06 (14 January 2014).
to the extent that it went beyond the requirements of international law,

because of the new status of the right of ‘access to justice’ as part of EU
law since the Lisbon Treaty.178 A conflict between immunity law and
access to justice was only avoided because of this claimed power to set
aside the State Immunity Act 1978.179 Without that power and if the Act
does indeed exceed international requirements, the United Kingdom
would be in breach of EU law and the European Convention on
Human Rights. At least where state immunities are involved, the law
of jurisdiction has become less of a discretionary field and more of a
tightrope walk.
d. Access to justice, jurisdiction, and ‘sovereignty’
The idea that individuals have a directly enforceable right of access to
justice, explored here in a variety of contexts, has implications for the
idea of jurisdiction in international law. It implies that jurisdiction is no
longer exclusively a right of states, or even an obligation owed by states
to each other, but is at least to some extent a matter of individual right,
that is, an obligation owed to individuals. This would represent a fun-
damental challenge to traditional conceptions of jurisdiction, one which
cannot be met simply by an enlargement of the recognised grounds for
the exercise of state jurisdiction.
Since public international law rules on jurisdiction are reflective of the
idea of ‘sovereignty’, this challenge requires us to reconsider that idea
too. In particular, it suggests the recognition, much debated in political
and legal theory, of the idea of a ‘sovereignty of the individual’180 along-
side the sovereignty of states. If this were to be accepted, rules of juris-
diction in international law could not continue to be characterised purely
as rules regulating the co-existence of sovereign states, seeking to min-
imise overlapping exercises of their authority. Rules of jurisdiction
would remain concerned with co-existing ‘sovereigns’, but would require
a broader recognition that this encompasses individuals who may have a
178
Benkharbouche v Embassy of the Republic of Sudan (Jurisdictional Points: State immunity)
[2013] UKEAT 0401_12_0410 (4 October 2013) (currently under appeal).
179
Such a conflict might also be avoided through interpretation – if a court of an ECHR state
were to apply the common presumption that a statute should be interpreted to be in compliance with
international law, this should (to the extent that the text permits such an interpretation) lead to an
immunity statute being understood to confer immunity as far as required by international law but no
further.
180
This idea has a long history; see e.g. Hersch Lauterpacht, International Law and Human
Rights (Stevens & Sons 1950) arguing (at 70) that ‘International law, which has excelled in punc-
tilious insistence on the respect owed by one sovereign State to another, henceforth acknowledges
the sovereignty of man’; James M Buchanan, The Economics and the Ethics of Constitutional Order
(University of Michigan Press 1991), arguing (at 227) that ‘The central premise of individuals as
sovereigns . . . denies legitimacy to all social-organizational arrangements that negate the role of indi-
viduals as either sovereigns or as principals’ (emphasis in original); Annan, ‘Two Concepts of
Sovereignty’ – ‘[I]ndividual sovereignty—by which I mean the fundamental freedom of each indi-
vidual, enshrined in the charter of the UN and subsequent international treaties—has been
enhanced by a renewed and spreading consciousness of individual rights’.
right to demand assertions of regulatory authority by states on their

behalf.
V. PARTY AUTONOMY AND INDIVIDUAL POWER OVER JURISDICTION
This analysis of the challenges presented to the traditional understanding

of jurisdiction in international law by the increasing focus on individual
rights may be taken a step further through consideration of another
important development in domestic rules of (private international law)
jurisdiction and choice of law.181 In private law disputes, states very
widely assert jurisdiction on the sole basis of the consent of the parties,
in relation to disputes which themselves have little or no connection to
the state.182 In some cases, this consent may be in the form of a joint
agreement to submit an existing dispute to a particular court,183 and in
such cases this form of jurisdiction might perhaps loosely be charac-
terised as based on their territorial ‘presence’ before the court. This is,
however, something of a legal fiction, and in other cases jurisdiction may
be based only on a choice of court clause in a contract which one party
subsequently refuses to accept, recognise or perform, a situation which
cannot be so easily subsumed under existing jurisdictional principles.184
Similarly, states will generally apply the law chosen by the parties to
govern their contractual relationship, even if that relationship is other-
wise unconnected with the parties or their dispute.185 In private inter-
national law terms, these are aspects of the almost universally recognised
principle of ‘party autonomy’,186 which has traditionally functioned in
the context of commercial contractual disputes, and increasingly is also
applied beyond this, such as in tort law187 and even family law.188 The
international status of party autonomy in the context of jurisdiction has
arguably been confirmed by the Hague Choice of Court Convention
181
See also Mills, The Confluence of Public and Private International Law, 291ff.
182
See e.g. Zelger v Salinitri [1980] ECR 89, in relation to the Brussels Convention on
Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, Sept. 27, 1968,
1998 O.J. (C 27) 1 (consolidated version) (now Brussels I Regulation (2001)).
183
See e.g. the Brussels I Regulation (2001), Article 24.
184
See e.g. the Brussels I Regulation (2001), Article 23.
185
In the EU, this follows by implication from Articles 3(1) and 3(3) of the Rome I Regulation
(2008).
186
Party autonomy was recognised by the PCIJ as early as the Serbian and Brazilian Loans cases,
France v Yugoslavia; France v Brazil (1929) PCIJ Ser A, Nos 20-21, Judgments 14-15, p.41. See
generally e.g. Peter Nygh, Autonomy in International Contracts (OUP 1999); Giesela Ruehl, ‘Party
Autonomy in the Private International Law of Contracts’, in Gottschalk et al (eds), Conflict of Laws
in a Globalized World (CUP 2007); Mattias Lehmann, ‘Liberating the Individual from Battles
Between States: Justifying Party Autonomy in Conflict of Laws’ (2008) 41 Vanderbilt Journal of
Transnational Law 381; Horatia Muir Watt, ‘“Party Autonomy” in international contracts: from the
makings of a myth to the requirements of global governance’ (2010) 6 European Review of Contract
Law 250.
187
For example, under the Rome II Regulation (2007), Article 14.
188
See e.g. Janeen Carruthers, ‘Party Autonomy in the Legal Regulation of Adult Relationships:
What Place for Party Choice in Private International Law?’ (2012) 61 ICLQ 881.
(2005), prepared by the Hague Conference on Private International

Law.189 An equivalent acceptance of the status of party autonomy in
the context of choice of law in contract may be suggested by the Draft
Hague Principles on Choice of Law in International Commercial
Contracts, also being prepared under the auspices of the Hague
Conference.190
Historically, party autonomy has been viewed as a problem for theor-
ists who have sought to reconcile rules of private international law with
public international law. If jurisdiction in public international law is (as
it has been traditionally viewed) about state rights and powers, how can
individuals give or take away the powers of states? Many courts and
commentators have sought to accommodate party autonomy and trad-
itional state sovereignty by finding that party choices are not themselves
effective to confer or oust jurisdiction, but that courts should neverthe-
less almost always give effect to genuine party choices as a matter of state
policy, particularly (in the commercial context) for the sake of ‘interna-
tional trade and commerce’. Party intentions are, in this view, merely a
factual connection on which states have decided to rely in determining
the forum or the applicable law. There is no real autonomy under this
approach, although there is still an expansion of traditional international
jurisdictional grounds to accept ‘party intentions’ alongside territory or
nationality as sufficient grounds for jurisdiction in the context of private
law disputes and relationships. But it is not clear whether even this ex-
pansion provides a convincing explanation of what appears to be state
recognition of the autonomy of private parties, rather than a contingent
choice by states to give effect to party intentions.
Party autonomy can function in two fundamentally different ways,
each of which has a distinct impact on ideas of public international law
‘jurisdiction’. As states have accepted and adopted rules of party auton-
omy, it has sometimes been required that there be an ‘objective’ connec-
tion between the parties or their dispute and the forum or law chosen by
the parties in order for that choice to be valid.191 Under this conception,
party autonomy does not function as a new basis of jurisdiction, but
rather as a rule of jurisdictional priority.192 Where more than one state
189
Concluded on 30 June 2005; not yet in force. Available at 5http://www.hcch.net/index_en.
php?act¼conventions.text&cid¼984 accessed August 2014.
190
The most recent version is Prel. Doc. No 6, March 2014, prepared for the attention of the
Council of April 2014 on General Affairs and Policy of the Conference. Available at 5http://www.
hcch.net/upload/wop/gap2014pd06_en.pdf4 accessed August 2014.
191
For example, the Restatement (Second) of Conflict of Laws (1969), s.187(2)(a), provides that
the parties’ choice need not be given effect if ‘the chosen state has no substantial relationship to the
parties or the transaction and there is no other reasonable basis for the parties choice’ (although it is
unclear whether neutrality might itself be considered a reasonable basis in some circumstances). A
similar position was also traditionally adopted in the Uniform Commercial Code in the United
States, but see infra n 193.
192
This assumes that the objective connection required for a choice of law or court to be valid is a
traditional territorial or personal link, which is generally the case in states which have adopted this
approach.
might have ‘jurisdiction’ (in the public international sense) on traditional

grounds, it is the parties’ choice which determines whose jurisdiction
prevails – which court gets to hear the case, and which law is applied.
Party autonomy is thus defined as a limited choice between those juris-
dictional powers recognised by and between states – a position which
balances recognition of state sovereignty and individual autonomy.
Other states have not adopted such a restrictive view, and even those
states which did initially take a restrictive approach have tended to move
away from it.193 Under the common law and under EU rules, for ex-
ample, there is no requirement for a connection between the parties or
their dispute and the forum or law they have chosen. Article 3 of the
Rome I Regulation (2007) and Article 23 of the Brussels I Regulation
(2001) are not rules determining priority between other grounds of
choice of law or jurisdiction: they trump the general rules of choice of
law or jurisdiction based on territorial or personal connections.194 The
same position is adopted in the Draft Hague Principles on Choice of Law
in International Commercial Contracts, which expressly state that ‘No
connection is required between the law chosen and the parties or their
transaction.’195 Under this conception, party autonomy is an additional
basis of jurisdiction (in the international sense) which supersedes trad-
itional territorial or personal jurisdictional grounds. Such grounds con-
tinue to apply, but only in default of party choice. Party autonomy in this
view is not merely another accepted basis of jurisdiction, it is a new
jurisdictional ground with priority over the others.196
Because jurisdiction based on a choice of court agreement thus gener-
ally requires no other connection between the parties or their dispute and
the state asserting jurisdiction, and a choice of applicable law similarly
may be entirely independent of the parties or the subject matter of their
dispute, some private international lawyers have traditionally viewed
party autonomy as indicating that the only limits on the national
193
The 2001 revisions to the Uniform Commercial Code removed any requirement for an ‘ob-
jective connection’ for a valid exercise of party autonomy (s.1-301(c)), except in respect of consumer
contracts. The change was, however, controversial, has not been universally implemented, and was
reversed in 2008 amendments to the Code. See further, e.g., Patrick Joseph Borchers, ‘Categorical
Exceptions to Party Autonomy in Private International Law’ (2008) 82 Tulane Law Review 1645;
Dennis Solomon, ‘The Private International Law of Contracts in Europe: Advances and Retreats’
(2008) 82 Tulane Law Review 1709, 1723ff; Mo Zhang, ‘Party Autonomy and Beyond: An
International Perspective of Contractual Choice of Law’ (2007) 20 Emory International Law
Review 511.
194
While there are some important but narrow limitations which apply to party autonomy – such
as Article 3(3) and (4) of the Rome I Regulation (2008), and Article 22 of the Brussels I Regulation
(2001) – these do not undermine the general priority of party autonomy over traditional jurisdic-
tional grounds.
195
Article 2(4).
196
While this is clearly recognised under the common law and Brussels I Regulation (2001), it is
not entirely uncontroversial – as reflected in Article 19 of the Choice of Court Convention (2005),
which provides that ‘A State may declare that its courts may refuse to determine disputes to which
an exclusive choice of court agreement applies if, except for the location of the chosen court, there is
no connection between that State and the parties or the dispute.’
regulation of private international law are those concerned with private

justice or fairness – concerns which are met if the defendant has freely
agreed in advance to the jurisdiction or law, even if there are no other
objective connections. If a state exercises jurisdiction or applies its law in
civil proceedings based purely on consent by the parties, this is difficult
to reconcile with the traditional public international law requirement
that jurisdiction must be justified by a substantial objective connection,
typically territoriality or nationality. Faced with this argument, it might
seem that there are only two alternatives: first, rejecting the idea that
private international law is about the allocation of regulatory authority
between states (denying any connection between public and private
international law, thus rejecting the application of public international
law jurisdictional rules to civil disputes, leaving them unrestricted except
under national law), or second, making (unrealistic) arguments against
party autonomy, a response notoriously taken under the First
Restatement of Conflict of Laws.197
The broader developments in international law examined here provide
a simpler explanation. If an acknowledgement is made of an ‘individual
sovereignty’ which is balanced against that of the state, the widespread
recognition of party autonomy is clearly compatible with an argument
that the foundations of private international law lie in broader interna-
tional norms.198 The apparent incompatibility arises only as a result of
outmoded conceptions of public international law, which conceive of
jurisdiction as purely a matter of (territorial or nationality-based) state
rights and powers. Party autonomy provides a further demonstration of
an evolution which incorporates the idea of jurisdiction as a matter of
individual right. The right to be subject to jurisdiction only in accord-
ance with traditional international law limitations is a right which may be
waived, not only by states, but by individuals themselves. Almost uni-
versally, states have accepted that individuals may confer adjudicative
197
Under Beale’s First Restatement (Conflicts) (1934), party autonomy was rejected because
otherwise individuals were acting as ‘legislators’ (a direct rejection of the idea of ‘individual sover-
eignty’). That this theory was out of step with practice encouraged scepticism about private inter-
national law rules more generally, contributing to the rise of the American ‘realist’ challenge to
private international law (see generally Mills, ‘The Identities of Private International Law’). The
status of party autonomy in US law remains, however, underdeveloped – choice of forum agree-
ments have generally been approved in respect of federal question or admiralty jurisdiction (The
Bremen v Zapata Off-Shore Co., 407 US 1 (1972)), but some state courts remain sceptical, and it is
unclear when or whether federal courts exercising diversity jurisdiction ought to follow federal or
state law on this question.
198
The deference to party autonomy in private international law was described as reflecting ‘the
sovereign will of the parties’ by Judge Bustamente in his separate opinion in Serbian and Brazilian
Loans Cases, France v Yugoslavia; France v Brazil (1929) PCIJ Ser A, Nos 20-21, Judgments 14-15,
p.53. Nygh argues that party autonomy itself has the status of a rule of customary international law:
Nygh, ‘Autonomy in International Contracts’, 45. Note the recognition of the affinity between
international norms and private international law rules on party autonomy in the resolution of the
Institute of International Law on ‘The Autonomy of the Parties in International Contracts Between
Private Persons or Entities’ (1991) (see 5http://www.idi-iil.org/idiE/resolutionsE/1991_bal_02_en.
PDF4 accessed August 2014.
jurisdiction on a state of their choice, and may also, by making that

choice exclusive, detract from the jurisdiction that other states would
ordinarily be entitled to assert over them.199
These developments are compatible with a view of the international
system in which states and individuals are both recognised as, at least to
some extent, sovereigns. This is not to say that such individual sover-
eignty must be unrestricted – the ‘sovereignty’ of individuals is, no less
than that of states, prescribed by law. This does, however, require ac-
cepting an active role for individuals in questions of the jurisdictional
power of states.
A further fundamental issue concerning party autonomy should be
noted, although it is beyond the scope of this article. There is also
very widespread agreement among states – principally in the form of
the 1958 New York Convention on the Recognition and Enforcement
of Foreign Arbitral Awards – that parties should be free to grant exclu-
sive jurisdiction over their private disputes to non-state methods of dis-
pute resolution, such as arbitral tribunals, to the (at least partial)
exclusion of state judicial jurisdiction. This development is subject to
two contrasting and incompatible readings, each widely adopted and
heavily contested. The first is that it simply reflects the acceptance by
states of arbitration as a form of alternative dispute resolution, backed up
by state courts, but lacking any normative power of its own. The second
is the more radical proposition that it implies the acceptance by states of
a non-state form of ordering, alongside and competing with national
courts – that arbitral tribunals are privately constituted courts, some-
times even applying privately constituted (non-state) private law.200 This
would certainly represent a further challenge to traditional conceptions
of jurisdiction, recognising individual party freedom not just between
state laws or adjudicative bodies, but beyond them, through the recog-
nition of private (non-state) legal forms of ordering, or of legal pluralism
beyond the state.201 It would also be a serious challenge to the idea that
‘jurisdiction’ is only concerned with the powers of states, as it would
199
When combined with the idea of access to justice, accepting that parties may generate juris-
dictional exclusivity arguably also requires accepting an obligation to exercise that exclusive juris-
diction, otherwise no forum will be available to the claimant.
200
Note the acceptance of a possible choice of non-state law in the Draft Hague Principles on
Choice of Law in International Commercial Contracts, Article 3. Although a choice of non-state law
is not (currently) permitted under the Rome I Regulation (2008), English courts will recognise and
enforce arbitral awards based on non-state law, under the Arbitration Act 1996, s.46; see e.g.
Deutsche Schachtbau- und Tiefbohrgesellschaft mbH at al. v The Government of the State of R’as Al
Khaimah and The R’as Al Khaimah Oil Company (‘Rakoil’) [1987] 2 All ER, pp. 769-784 (reversed
on other grounds at [1990] 1 AC 295); Channel Tunnel Group Ltd v Balfour Beatty Constructions Ltd
[1993] AC 334; Musawi v R.E. International (UK) Ltd [2007] EWHC 2981 (Ch); Dallah Real Estate
& Tourism Holding Co v Pakistan [2010] UKSC 46.
201
See generally e.g. Thomas Schultz, Transnational Legality: Stateless Law and International
Arbitration (OUP 2014); Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law
Beyond Borders (CUP 2012); Peer Zumbansen, ‘Transnational Legal Pluralism’ (2010) 1
Transnational Legal Theory 141; Emmanuel Gaillard, Legal Theory of International Arbitration
(Nijhoff 2010).
involve accepting not just individual jurisdictional power to choose be-

tween state laws or courts, but jurisdictional power conferred on private
institutions, or exercised by individuals in the creation of private rules. If
it becomes accepted that private parties can make laws with a status equal
to those of states, then there may be little doubt that they possess a form
of sovereignty. Whether this is indeed taking place remains one of the
great contested issues of the international legal order.
VI. CONCLUSIONS
This article has sought to reconsider the idea of ‘jurisdiction’ in light of

broader changes in international law, including the emerging influence of
individual rights and powers. Individuals have traditionally been con-
sidered passive objects of international legal regulation, which is
analysed exclusively as a matter of state right or power based principally
on links of territory or personal identity. This approach has been
reflected in domestic rules of jurisdiction as a matter of private interna-
tional law, which similarly have approached jurisdiction principally as a
question of territorial or personal control.
At both the international and national level, these approaches are under
challenge and ripe for reconceptualisation. Prescriptive and adjudicative
jurisdiction at the international level is, in a variety of contexts, accepted
as a matter of obligation between states rather than state rights – the
approach to jurisdiction needs to be reconceived not merely as a ceiling,
but also as a floor. Even more significantly, in the context of the devel-
opment of ideas of the international delict of ‘denial of justice’ in relation
to the treatment of foreign nationals, and of the idea of ‘access to justice’
in the context of human rights law, there is increasing recognition that
states may owe obligations to exercise prescriptive and particularly adju-
dicative jurisdiction (according to international not domestic standards)
directly to individuals. Some states take the view that access to justice
may even require exercising forum of necessity jurisdiction if no other
forum is available for the claimant, even if there is no connection between
the state and the parties or their dispute which would justify jurisdiction
on traditional grounds. Further, there is widespread recognition that jur-
isdiction may be at least partially conferred on states and withdrawn from
states, by private parties in civil or commercial matters, through the ex-
ercise of party autonomy. All these developments appear to signify a shift
in the status of individuals in relation to jurisdiction at both international
and national levels, from passive objects of international law regulation to
active rights-holders. The rules on jurisdiction in international law
should thus be rethought as concerned not only with state rights but
also with state responsibilities – a combination of state rights, obligations
and prohibitions as well as individual rights which reflects the more
complex reality of modern international law.
Of course it remains true that it is states that have recognised these

rights and perhaps even conferred them on individuals, and an explan-
ation may be made of this phenomenon in derivative terms which fit
within a model of international law in which states retain their traditional
position as exclusive sovereigns, and international law is merely
concerned with relations between sovereign states – that individuals
are, for example, merely exercising the contingently delegated authority
of states, which could also be taken away. Courts themselves have often
striven to find such explanations, in an effort to accommodate both
individual rights and state sovereignty. But the recognition of the indi-
vidual in international law reflects both the moral strength of individual
claims to justice and autonomy and the reality of the power wielded by
private actors in protection of their property and interests. In practical
terms, it has become difficult for any state wishing to engage with the
international community to ignore individual rights of access to justice,
or the powers of commercial parties to choose the laws and forums under
which their relationships are regulated. Individual personality and au-
tonomy has become entrenched in reality, if not yet entirely in theory.
The rules giving effect to choice of law clauses, choice of court agree-
ments, and arbitration agreements may take the form of national or
supra-national (for example, EU) laws or treaties, but it hardly seems
realistic to suggest that they could be repealed or repudiated given the
power and influence of the corporations which rely on these rules
(remembering that, at least according to one study, there are more cor-
porations than states in the list of the 100 largest economies in the
world202), not to mention the arbitration and litigation industries
which depend on them. One might be reminded of the character called
‘the king’ in Chapter 10 of the novella ‘Le Petit Prince’ by Antoine de
Saint Exupéry, who suffers from the delusion that the sun rises and sets
each day because (after consulting an almanac) he commands it to do so
at the specified time, asserting his ‘sovereign’ power over it.203 States
may well believe that private parties exercise power only because of their
consent, and may even legislate to this effect, but this may not provide an
accurate account of where power lies in the global political and legal
order. In any event, while there remain points of controversy concerning
the limits of party autonomy, there is little or no sense that party auton-
omy as a principle is merely contingent.
202
Institute for Policy Studies, ‘Top 200: The Rise of Corporate Global Power’, 4 December
2000, available at 5http://www.ips-dc.org/top_200_the_rise_of_corporate_global_power/4 accessed
18 August 2014.
203
‘“You shall have your sunset. I shall command it. But, according to my science of govern-
ment, I shall wait until conditions are favorable.”
“When will that be?” inquired the little prince.
“Hum! Hum!” replied the king; and before saying anything else he consulted a bulky almanac.
“Hum! Hum! That will be about–about–that will be this evening about twenty minutes to eight. And
you will see how well I am obeyed!”’
These phenomena suggest an important development in the concep-

tion of jurisdiction, and the limits of state sovereignty, but one which has
received insufficient attention in the international law literature. I have
argued that this development indicates a partial acceptance of a ‘sover-
eignty of the individual’ in the public and private international law of
jurisdiction, and thus perhaps the emergence of a more ‘cosmopolitan’
conception of sovereignty, which attempts to accommodate the norma-
tive value of both state and individual actors. The issues which arise in
the context of jurisdiction are in many ways a microcosm of one of the
great challenges facing international law – how to move beyond the trad-
itional dominance of states, to the reconciliation of a range of normative
interests, from individual, to state, to international society as a whole.
In law, as in science, a theoretical model may only be stretched so far
in response to evidence before a paradigm shift occurs, replacing the
basic assumptions of the system with a new set of foundational prin-
ciples.204 The theme underlying this analysis is that international law
is (at least potentially) in the midst of such a shift. Both theoretical
models may be broadly feasible at present, but as the recognition of
individuals grows in international law and practice, Occam’s razor chal-
lenges the persuasiveness of the traditional perspective. But descriptive
economy is not the only value at stake in choosing a theoretical perspec-
tive. Law and the social sciences are fundamentally different from the
natural sciences in that the adoption of a theoretical perspective does not
merely describe, but may also change its subject. The move from
Newtonian to relativistic physics did not change the reality of the
world, it simply described it better. But the development of classical
international law did not merely describe movements in international
relations, it has helped to shape them by shaping the thinking and
behaviour of the actors who in turn influenced events. The choice of a
theoretical paradigm in law is not only a question of its descriptive
accuracy, but also a question of its normative implications.
This leaves us with perhaps the most fundamental question – a ques-
tion beyond the scope of this article – whether or not the transformation
in jurisdiction described in this paper is desirable. Not all change is
progress. Enthusiasm for a more ‘cosmopolitan sovereignty’ must be
tempered by the recognition that it comes with the danger that the
empowerment of some private actors, particularly corporations, may
put at risk the rights of others, or the collective goods traditionally
protected by the normative authority of states. Recognising individual
jurisdictional powers might embrace not just access to justice for victims
of human rights violations, or freedom for individuals to choose which
system of law should govern their personal relations, or freedom for
companies doing business internationally to choose the most appropriate
204
See most famously Thomas Kuhn, The Structure of Scientific Revolutions (University of
Chicago Press 1962).
or efficient legal order to govern their relations, leading to potentially

healthy jurisdictional competition. The recognition of jurisdictional au-
tonomy may also provide a means through which individuals or markets
evade the regulatory influence of states and the protection of national
public interests – concerns which are particularly prevalent in the rights
granted to foreign investors (whose complaints are heard by international
arbitral tribunals, largely applying international not national law), and in
the scope of recognition of party autonomy. ‘Liberating the individual
from battles between states’205 may sound virtuous, but liberation may
also mean ‘regulatory escape’.
It must also be remembered that the traditional jurisdictional rules of
international law were themselves developed with the protection of cer-
tain values and interests in mind – for example, to reduce regulatory
conflict, for the sake of the peaceful coexistence of states. An increase
in the range of jurisdictional grounds in international law might serve the
interests of individuals in achieving access to justice, but overlapping
jurisdiction between states may also give rise to systemic conflict that
outweighs the benefits provided to particular claimants. As Judges
Higgins, Kooijmans and Buergenthal noted in their Joint Separate
Opinion in the Arrest Warrant Case:
One of the challenges of present-day international law is to provide for stability
of international relations and effective international intercourse while at the
same time guaranteeing respect for human rights. The difficult task that inter-
national law today faces is to provide that stability in international relations by a
means other than the impunity of those responsible for major human rights
violations.206
These are the sorts of difficult decisions which courts and law-makers
are increasingly faced with, in the context of the scope of extraterritorial
or universal jurisdiction, or balancing freedom of arbitration against
national policy interests, or where claims come up against traditional
restrictions on jurisdiction such as foreign state immunity. In each
case, the concerns of access to justice for individuals square up against
concerns of limiting state regulatory power on traditional grounds, to
minimise the possibility of regulatory conflict between states, or exer-
cises of jurisdiction which might lead to inefficient resolution of
disputes, or even amount to ‘neo-colonial’ assertions of extraterritorial
power.207 The range of cases and contexts in which these types of
205
To quote from the title of Lehmann, ‘Liberating the Individual from Battles Between States:
Justifying Party Autonomy in Conflict of Laws’.
206
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ
Reports 3, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, at [5].
207
These are analogous to the concerns raised in the Separate Opinion of President Guillaume in
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ Reports 3,
arguing (at [15]) that universal jurisdiction would ‘risk creating total judicial chaos. It would also be
to encourage the arbitrary, for the benefit of the powerful, purportedly acting as agent for an ill-
defined “international community”.’
problems arise are not a series of isolated and disconnected incidents, but
rather like localised ‘tremors’ which signal pressure points in the slow
drift of tectonic plates. If international law is under a process of trans-
formation, then more of these types of collisions must be anticipated.
The deeper challenge for international lawyers is whether the door can
be opened to recognition of the normative authority of individuals
without losing sight of the other interests and values, national and inter-
national, which have traditionally been protected by the law, and whose
protection we may need to preserve.

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The British Yearbook of International Law ! The Author 2014.

Published by Oxford University

The regulation of the jurisdiction of states is an important aspect of

law have fundamentally shifted from state sovereignty to a greater con-

Before examining the generally accepted traditional law of jurisdiction, it

being based on observation of current practice. While international legal

This ‘positivist’ conception of sovereignty as an a priori value, above

III. THE MODERN INTERNATIONAL LAW OF JURISDICTION: LIMITED

This section introduces the ‘standard’ account of jurisdiction in interna-

A. Public international law

maintain, nor is it universally accepted as reflecting international law,

in absentia, because an exercise of prescriptive jurisdiction in the absence

territoriality particularly dominates in the context of jurisdiction to

Although international law rules on jurisdiction are traditionally

territory.44 Such an entitlement has traditionally been controversial, but

accepted jurisdictional rules than it would be under the Lotus Case

B. Private international law

proceedings has occasionally been doubted,51 there is little in practice or

‘subject’ (national) within the concept of living permanently or tempor-

org/instruments/transnational-civil-procedure4 accessed August 2014, which state (in Comment P-

connecting factors to determine the law which governs a private law

Public international law principles of ‘personality’, like those of terri-

the traditional conception of public international jurisdiction as a matter

individual autonomy is increasingly recognised as playing an important

a foreign state’s greater claim to substantive regulatory authority, and

IV. JURISDICTION AS A DUTY OF STATES

The remainder of this article considers challenges which have arisen to

contexts) as a ‘floor’, reflecting minimum requirements for the exercise

A. Jurisdictional duties owed to other states

traditionally accepted boundaries of the jurisdiction of states.100 To put

See further ibid, at [28]-[41]; Separate Opinion of President Guillaume, at [7]-[9].

under the principle of complementarity.105 Obligations which affect the

as a matter of state discretion should no longer be the starting point of

B. Jurisdictional duties owed to individuals

international law.112 Indeed Hersch Lauterpacht had already argued in

1. Denial of justice to foreign nationals

of this standard is considered to give rise to an international delict of

application of domestic notions of private international law where these

substantive standards of treatment applicable to each state in respect of

through the recognition of individuals as positive actors and jurisdictional

2. Human rights and access to justice

Rights of access to justice have again been traditionally viewed as

Human Rights and Inter-American Court of Human Rights.141 In the

justice, alongside previously dominant considerations of internal market

in another proposed EU Regulation dealing with matrimonial prop-

of private parties in the absence of the connections of territory or na-

‘sufficient connection’.161 Such an approach enlarges traditional juris-

Court decided to adopt an even more conservative approach, based on a

achieve justice to be one of the central questions in exercising the forum

to the extent that it went beyond the requirements of international law,

right to demand assertions of regulatory authority by states on their

V. PARTY AUTONOMY AND INDIVIDUAL POWER OVER JURISDICTION

This analysis of the challenges presented to the traditional understanding

(2005), prepared by the Hague Conference on Private International

might have ‘jurisdiction’ (in the public international sense) on traditional

regulation of private international law are those concerned with private

jurisdiction on a state of their choice, and may also, by making that

involve accepting not just individual jurisdictional power to choose be-