DescriptionThe regulation of extraterritorial jurisdiction sits at the crossroads between international and domestic law. When a domestic constitutional court is called upon to consider legal questions connected with the extraterritorial conduct of a state, it arrives at this juncture. One particular way in which legal systems may fail to provide justice is in these courts declining, on the basis of the principle of ‘comity’ or the ‘act of state doctrine’, to control extraterritorial exercises of state power. In that context, this paper presents comparative perspectives on the regulation of extraterritoriality by domestic constitutional courts. In so doing, it considers the implications of extraterritorial exercises of state power on the rule of law and three arguments are advanced. First, the act of state doctrine and comity principle are both unsatisfactory tools in the adjudication of extraterritoriality and ought to be abandoned. Second, the abuse of rights doctrine as it is understood in in international law and the principles of state responsibility may be usefully 'transplanted' into the domestic domain when adjudicating on exercises of extraterritorial power by the state. Third, the integration of international law doctrine into domestic public law contexts with dualist approaches can be characterised as a type of legal transplant.
|Society of Legal Scholars, United Kingdom