Second, we invoke notions of extraterritoriality when we focus on the emergence of transnational norms that result from genuine or delegated private law making activities and that are in many instances governed by non-state dispute resolution mechanisms. This development raises a number of questions, and the inquiry into the status of sovereign state interests is of particular importance in this area: Who are these rule-making, non-state actors? What are the reasons and dynamics behind this private global law production? What is the status and legitimacy of these rules? How pervasively do they actually displace the norm-creating authority of sovereign states and operate as “acceptable” substitutes for state-made law?
Third, extraterritoriality is often also associated with the unilateral regulation of foreign conduct through domestic legal rules. Here, too, sovereign interests are at stake. But contrary to the state-negotiated voluntary relinquishment of these interests, and different from private norm production which may or may not be state-sanctioned, unilateralism calls into question the very concept of territoriality and, among other things, the right to self-determination. Whether driven by hegemonic pressure (e.g. the Helms Burton Act with respect to Cuba) or by the need to address unavoidable frictions in an increasingly interconnected world (e.g. competition rules), unilateral action with trans-border impacts is often perceived as an interference with foreign regulatory authority. The conflicts that ensue are difficult to reconcile, particularly in areas that are not subject to supra-national dispute resolution systems.
Each of these areas implicates the consequences of globalization for conventional perceptions of territoriality as the core element of state sovereignty. Thus, the principal purpose of the project, and its main contribution to the Cluster’s inquiries into the Formation of Normative Orders, is to review the status of the twin concepts of “territoriality”/”extraterritoriality” as relevant markers for the international allocation of jurisdiction among states or the lawful exercise of state power and legitimate private norm-creation and enforcement in the 21st century. The expanding and deepening interdependence of states in an economic, social, environmental and political-military sense has brought about a significant shift in both the traditional meaning of the concepts and their relevance as contemporary benchmarks for assessing states’ basic rights and obligations associated with territorial sovereignty. The specific areas of research that will be addressed in the course of this project range from an examination of the traditional territorial underpinnings of judicial jurisdiction to inquiries about state-initiated or privately generated extraterritorial norm production in various subject matter fields.
