Volume 93 - No. 3 Minnesota Law Review

Reclaiming International Law from Extraterritoriality

A fierce debate rages among leading international law theorists that implicates the role of national courts in solving global challenges. On one side of the debate are scholars who are critical of international law and its institutions. These scholars, often referred to as Sovereigntists, see international law as a threat to democratic sovereignty. On the other side are scholars who support international law as a key means of promoting human and environmental rights, as well as global peace and stability. These scholars are modern Internationalists because they see nontraditional, nonstate actors as appropriately enforcing international law at the substate level. The debate has had a real-world impact. In recent years, the United States has disengaged from traditional sources of international law, and in particular, multilateral treaties. In their place, the United States and nonstate actors use domestic laws, applied extraterritorially, to exert international influence. Following our lead, other countries now increasingly apply their domestic laws extraterritorially too.

This Article addresses a topic that leading theorists have downplayed—the rise of global extraterritoriality, i.e., the use of domestic laws to regulate the activities of foreigners abroad. It argues that the two prevailing dominant perspectives in international legal theory have miscalculated the dangers extraterritoriality poses. In so doing, the Article advocates for an approach that acknowledges changes in the international system, but also seeks to shore up territorial sovereignty to prevent the problems that extraterritoriality creates. It thus offers a way beyond the current stalemate in international law scholarship. Controversially, it concludes that international law scholars from both the Sovereigntist and Internationalist perspectives should embrace and reclaim multilateral international lawmaking.

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De Novo

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