Entterritorialisierung normativer Ordnungen

 Joachim Zekoll

 Dieses Projekt ist Teil des an der Johann Wolfgang Goethe-Universität angesiedelten  fächerübergreifenden Exzellenzclusters „Herausbildung normativer Ordnungen“. Gegenstand des Forschungsvorhabens  ist die Ablösung normativer Ordnungsgefüge von ihren territorialen Bindungen an staatliche Rechtsordnungen. Der folgende Überblick  beleuchtet die strukturellen Elemente des Projekts, das auf Beiträgen deutscher und amerikanischer Wissenschaftler beruht:

A defining, fundamental theme of the 1990s and the beginning of the new century has been “globalization" commonly understood as a process of rapid integration of economic, political, and cultural systems across the globe.  Although “globalization" does not represent a novel phenomenon – arguably the present, post cold-war wave was preceded by a similar burst of integrative forces in the 19thcentury -- the present era of globalization is nevertheless characterized by an unprecedented mobility across borders of information, capital and people.  And while the on-going global financial and economic crisis has resulted in a significant slowdown, indeed a partial reversal of this process, leading some to actually speak of “de-globalization," (see, e.g. ,“Turning Their Backs on the World," The Economist, February 21, 2009, p.59) it stands to reason that, barring a major event of global cataclysmic proportions, the process will continue and accelerate in the future.

Although there may be disagreement about specific details, there exists a general consensus among experts that the single most significant trait of globalization is a fundamental change in the time and space dimension of human existence.  This change has, of course, far-reaching legal implications.  For the compression of time and space, epitomized by, in particular, the revolution in information technology and advances in modern means of communication and transportation has profound, if not unsettling, implications for the modern state system.  It brings into sharp relief a widening discrepancy between the transnational, indeed non-territorial nature of the problems and challenges posed by interconnectedness in a globalized world and traditional state-based, i.e. territorially focused legal tools, structures and processes to manage interdependence (Mathews, “Power Shift," Foreign Affairs Jan/Feb (1997), at 65, speaks of  the “clash between the fixed geography of states and the nonterritorial nature of today's problems."). In other words, in a seemingly borderless world social, economic or environmental problems and their solutions tend to be transnational in nature, or “deterritorialized," thus calling into question territorial sovereignty as a fundamental organizing principle of the global legal architecture.

Ever since Westphalia, or more precisely ever since acceptance of the principle of cuius regio, eius religio in the Treaty of Augsburg of 1555, territorially organized communities have laid claim to sovereign control over the territory concerned and the people and resources located therein.  As Max Huber puts it, “[s]overeignty in the relations between States signifies independence.  Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State." (Island of Palmas case (Netherlands, USA), 4 April 1928,  4UNRIAA 829, at 838.) However, territorial sovereignty could never convincingly be posited as an absolute principle.  Rather, it was understood to require some adjustment in view of states' physical co-existence and associated transboundary spill-over effects, and the desirability of international trade and diplomatic intercourse.  In short, “extraterritoriality" was always an indispensable, complementary legal notion, the proverbial exception to the rule of territorial sovereignty's exclusiveness.  By artfully tweaking the twin parameters of territoriality-extraterritoriality modern states for a long time managed to agree on mutually acceptable limits on the exercise of transnational legal authority while revalidating the basic principle of territorial sovereignty.  At the same time, it was well understood that, save for some very limited circumstances, it was the states permissibly exercising jurisdiction extraterritorially that were the fons et origo of transnational legal authority. Over time, however, as interaction among states progressively widened and deepened, international interdependence tended to render progressively implausible territorial sovereignty's corollary of exclusive territorial jurisdiction and control.  Moreover, growing interdependence entailed the emergence of functional international organizations and institutions with which states began to share transnational legal authority. 

Today, globalization with its explosive enlargement of the scope of all matters “transnational" has lead states to unilaterally claim expansive new extraterritorial powers (see, e.g. Coughlan, Currie, Kindred & Scassa, “Global Reach, Local Grasp:  Constructing Extraterritorial Jurisdiction in the Age of Globalization," Law Commission of Canada, 2006). Globalization has also re-energized, however, a quest for re-conceptualizing transnational legal authority centering on governance structures and processes -- complementary or alternate to those of the state system -- that range from formally institutionalized, supranational organizations to informal transnational institutions or arrangements, including private legal regimes.  Thus, globalization has lead to a (re)discovery of modern legal pluralism, a recognition of the inevitability, indeed desirability of spatially co-existing and overlapping normative legal systems.  It has also, finally, sharpened awareness and acceptance of the role that other non-state actors, such as corporations, NGOs and individuals, may play – formally and informally – at various stages of the making and application of transnational legal norms. For some of us, at least, these changes may also have necessitated a reconsideration of the very notions of legal community and law. 

Under the impact of globalization, therefore, the traditional signaling functions of the twin concepts of territoriality/extraterritoriality have become definitely less reliable, possibly misleading, at times perhaps altogether irrelevant as regards the contemporary allocation of transnational legal authority.  Indeed, the term “extraterritoriality" itself has acquired negative connotations, suggesting aggressive unilateralism, legal hegemony, and abandonment of traditional consensus-based international lawmaking.  Whether or not these references are entirely convincing, there is no denying that transnational legal authority is fragmented, that transnational law-making and law applying functions are diffused, i.e. involve a variety of actors, settings and processes. By the same token, it is evident that states, far from having been totally eclipsed by the forces of globalization, at least for the time being remain keystones of the global governance architecture. 

By taking “extraterritoriality," the touchstone for the traditional, state-centered allocation of transnational legal authority as the conceptual starting point, the Frankfurt-Tulane project seeks to trace the evolution of transnational legal authority in the course of globalization.  While our proposal cannot and does not purport to cover exhaustively all critical issues in international relations or matters of transnational concern, the project seeks to provide an accurate and up-to date map of changes in legal governance with regard to a few select, but – we believe -- fairly representative and important topics.  In the end, therefore, the project aggregate findings should help us to address the larger constitutive picture, namely that of the evolving global governance structure, or the extent to which the modern system of states is yielding to postmodern forms of configuring political space (see Ruggie, “Territoriality and Beyond: Problematizing Modernity in International Relations," 47 International Organization 139, at 144 (1993)).

Unter dem Titel: The Extraterritoriality Project - a Work-in-Progress Conference kamen im Dezember 2008 Mitglieder des Projekts in Frankfurt am Main zu einem ersten Arbeitstreffen zusammen. Bei dieser Gelegenheit wurden die folgenden Themen vorgestellt und diskutiert:

• Transnational Environmental Law, Eckard Rehbinder
• The Extraterritorial Reach of U.S. Environmental Laws, Jonathan Nash
• The Extraterritorial Aspect of Admiralty Jurisdiction, Martin Davies
• Judicial Jurisdiction and Territoriality, Joachim Zekoll
• Traditionality and Extraterritoriality of Fundamental Rights, Stefan Kadelbach
• From Transplant to Transfer: Comparing Constitutions, Günter Frankenberg
• The Concept of Territoriality and the Quest for Universal Justice, Günther Handl
• Deterritoriality and Transnational Legal Regimes, Peer Zumbansen
• The Extraterritorial Implications of the Sarbanes-Oxley Act of 2002, Onnig Dombalagian
• International Investment Law as an Example of Extraterritorial Law-Making and Law-Enforcement, Rainer Hofmann

Im November 2009 fand die Abschlusstagung in New Orleans statt. Die dort präsentierten und besprochenen Beiträge wurden 2012 in Buchform unter dem Titel "Beyond Territoriality: Transnational Legal Authority in an Age of Globalization" bei Brill in der Reihe "Queen Mary Studies in International Law" veröffentlicht.