Exterritorialization of normative orders

Project manager: Prof. Dr. Joachim Zekoll

The project which began as a search for and evaluation of various facets of “extraterritoriality” emerged into a significantly more complex undertaking aimed at locating and assessing the various manifestations of transnational legal authority. The results are published in: Handl, Gunther/ Zekoll, Joachim/ Zumbansen, Peer (Eds.) (2012): Beyond Territoriality: Transnational Legal Authority in an Age of Globalization (Series: Queen Mary Studies in International Law, Vol. 11) Leiden/Boston: Brill.

By taking “extraterritoriality,” the touchstone for the traditional, state-centered allocation of transnational legal authority as the conceptual starting point, the project sought to trace the evolution of transnational legal authority in the course of globalization. In this respect, the project provided an accurate and up-to date map of changes in legal governance with regard to a number of fairly representative and important topics. The project’s aggregate findings thus help us to address the larger constitutive picture, namely that of the evolving global governance structure, and the extent to which the modern system of states is yielding to postmodern forms of configuring political space.

It is with these considerations in mind that individual contributions to the project paid special attention to any shift in transnational legal authority away from the state. More specifically, the various parts describe present-day transnational legal authority in terms of whether it is being exercised unilaterally or multilaterally; is minimally internationally coordinated or formally institutionalized; reflects a traditional state-centered as against a supra-national or “privatized” approach; and, finally, emanates from a single as against a multiple-layered normative system.

The project traced the evolution of transnational legal authority from being an exceptional derogation from the territoriality principle by offering a basic definitional part on jurisdiction and communities; a review of the implications for modern “globalized” society of jurisdictional concepts and practice in medieval times; and an introduction to the post-modern, present-day phenomenon of transnational legal pluralism, namely spatially co-existing and overlapping normative legal systems, involving both states and non-state actors in the making and application of transnational legal norms.
The project also evaluated prototypical transnational applications of domestic law, i.e. direct emanations of the assertion of territorial sovereignty. Without pretending to cover all possibly relevant scenarios, several different contexts, such as the application of domestic environmental laws were analyzed to illustrate the inevitability of “extraterritorial” jurisdictional effects associated with (routine) governmental acts within state territory.

Another part addressed the phenomenon of transnational authority based on – direct or indirect – transfers or “leakage” of constitutional norms, fundamental rights or human rights norms and/or basic governance concepts. Furthermore, situations were examined in which transnational legal authority is exercised in relation to real or virtual exterritorial spaces, thus is subject to special legal regimes, such as maritime law, or gives rise to special jurisdictional considerations as is the case with cyberspace and the emergence of a – real or only alleged – lex digitalis.

Finally, the focus shifted to the emergence of transnational governance structures which, though rooted in the state system, display a high degree of international substantive coordination as well as institutional developments. Several “case studies” focusing, inter alia, on capital market regulation, international investment regimes and arms control confirmed the assumption that transnational authority is being increasingly shared by the states with autonomous institutional structures and processes.

The findings of this joint research are multifaceted. This is in significant part due to the research topics, which follow different rule-making dynamics and the approach taken by the individual scholar to examine the heterogeneous subject matter areas. As Per Zumbansen, one of the editors of the volume, puts it (at 553 et seq.): “While for many of the authors represented in this volume, the state continues to be the primary reference framework for the creation and implementation of the applicable norms, other scholars in this book understand references to the state’s legal authority as less definitive. At the same time, both groups of authors testify to the many ways in which national legal systems have been adapting to the growing number of border-crossing legal conflicts. Defining and comprehensively explaining the ‘nature’ of this adaptation process is what can arguably be seen to be at the heart of the yet not fully resolved conundrum of ‘globalization and the law’. The differences in value assigned to the ‘state as container’ by the legal authors collected here reflect on the wealth of approaches toward unpacking this complex relationship. As shines through some of the contributions to this volume, this has long ceased to be un champ de recherche alone for lawyers. Importantly, explorations into the relevance of territoriality for an understanding of today’s legal systems have been at the center of a number of other disciplines for quite some time.”
And, indeed the inclusion of and cooperation with other disciplines, such as political science and anthropology, appear to be indispensable prerequisites for an even better understanding of the evolving nature and dynamics of transnational norm production.

The following individuals cooperated in and contributed to this project:
Adeno Addis (Tulane Law School, New Orleans), Larry Catá Backer (Pennsylvania State University, University Park), Michael Bothe Goethe University, Frankfurt); Eric Dannemaier, Indiana University Robert H. McKinney School of Law, Indianapolis), Martin Davies (Tulane Law School, New Orleans), Onnig Dombalagian (Tulane Law School, New Orleans) James Gordley (Tulane Law School, New Orleans), Günther Handl (Tulane Law School, New Orleans), Rainer Hofmann (Goethe University, Frankfurt), Stefan Kadelbach (Goethe University, Frankfurt), Imelda Maher (University College, Dublin), Jonathan Nash (Emory University School of Law, Atlanta), Alexander Peukert (Goethe University, Frankfurt), Eckard Rehbinder (Goethe University, Frankfurt), Edward Sherman ((Tulane Law School, New Orleans), Friedl Weiss (Univeristy of Vienna) and Peer Zumbansen (Osgoode Hall Law School, Toronto).

Most of these scholars participated in two preparatory conferences/workshops, the first in December 17-18th 2008 at Goethe-University Frankfurt, entitled “The Extraterritoriality Project – A ‘Work in Progress'” and a follow-up conference in New Orleans November 12-14th 2009 in cooperation with Tulane Law School.