6. Sector Non-Specific Economic Warfare

Cf. on the eligibility of extraterritorial legislation as measure of economic warfare Menzel (2011), p. 271; Meng (1994), p. 108; on the wide range of examples see Sandrock (2016), pp. 2–19.

And is understood in a wide sense here, i.e. in addition to statutes or common law any acts of the judiciary or executive “giving effect to the sovereign’s will” (Mann 1990, p. 5, originally appeared as Mann 1984).

Menzel (2011), p. 156; Herdegen (2016), p. 91; Meng (1994), pp. 73–75. Territory has to be understood to encompass not only the physical borders of a state but also foreign territory on which a state legally exercises jurisdiction, see Meng (1994), p. 73. Ryngaert (2015), pp. 6–8 rejects the term extraterritorial jurisdiction as confusing, at least when there is any kind of nexus or link to the territory of the legislating state, and prefers the formulation “not exclusively territorial”.

German legal terminology seems more precise in this context: Geltungsbereich describes the localities where a law applies; Anwendungsbereich or Vollzugsbereich describe the localities where a law can be enforced, although much of the terminology is in dispute, see Menzel (2011), pp. 155–156.

With compelling arguments Bartels (2002), pp. 376–386. In this case, the Geltungsbereich exceeds the Anwendungsbereich, see Menzel (2011), p. 156. Most authors tend to exclude the case where domestic laws only have de facto extraterritorial effects, such as the compliance with standards to secure market entry (see Schlochauer 1962, pp. 11–12; Peters 2016, pp. 148–149 (para. 5); Ryngaert 2015, pp. 94–99; Meng 1994, pp. 76–77).

Cf. Martyniszyn (2014), p. 109.

Cf. Herdegen (2018), para. 19. It can be noted, however, that the further trade restrictions become permissible under international law on ill-defined grounds, the easier it becomes for states to use these exceptions (for instance Art. XX GATT) as pretext for economic warfare, see Mavroidis (2008), p. 281.

See Bartels (2002), pp. 365 et seqq., 386 et seqq. In this reard cf. the submittion of the European Communities in Appellate Body (12 October 1998 (adopted 6 November 1998)) United States — Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, WT/DS58/AB/R, para. 73 as well as the Appellate Body’s refusal to deal with the issue of extraterritorial jurisdiction (para. 133, emphasis added): “[…] We do not pass upon the question of whether there is an implied jurisdictional limitation in Article XX(g), and if so, the nature or extent of that limitation. We note only that in the specific circumstances of the case before us, there is a sufficient nexus between the migratory and endangered marine populations involved and the United States for purposes of Article XX(g).” Critical Mavroidis (2008), pp. 277–278.

Cf. Meng (1994), pp. 82–87, who lists a number of “persuasive factors” inducing compliance with foreign laws.

Beaucillon (2016), p. 105 (fn. omitted).

Meng (1997), p. 290. See Dover and Frosini (2012), p. 14 on examples for extraterritorial legislation from the United States and the EU.

Meng (1997), p. 290.

Members of the Bundestag (2015), p. 1; Lalonde et al. (2013), pp. 199–200.

Members of the Bundestag (2015), p. 1; Fuest (2011), Herdegen (2016), pp. 91–92. On the United States embargo on Cuba, the so-called Helms-Burton-Act (and EU responses thereto), see Wallace (2002), pp. 613–625; Lowenfeld (2008), pp. 923–924; Oyer (1997), pp. 434–445; Thiele (1998), Herdegen (2016), p. 92; Kress and Herbst (1997), Lalonde et al. (2013), p. 184.

Huck (2015), p. 999. At the same time, eBay and Paypal faced the allegation of infringing EU blocking statutes enacted to prevent compliance with the United States embargo (below Sect. 6.1.1.2).

Innumerable other examples come to mind (see especially Sandrock 2016, pp. 4–19). For instance, one particular question in terms of international law compatibility of ISCMs relates to the exercise of extraterritorial jurisdiction. ISCMs can produce the oddity that the acquisition of a company located in state A by an investor from state B is subject to scrutiny under the ISCM of state C because the target company holds shares in a second company located in state C. Some jurisdictions’ ISCM capture this type of acquisition as “indirect control”. To be more concrete, for instance, if an investor from Argentina intended to buy a controlling stake in an Irish company which holds a controlling stake in a German company, this acquisition could be subject to scrutiny under the German ISCM (cf. Sec. 56 (2) No. 1, (3) AWV) (Pottmeyer (2013), para. 27; Seibt and Wollenschläger (2009), p. 838; see also Chap. 4 fn. 410 above). Nothing would change in this example if the Irish were substituted by a non-EU, say Kiribati, investor. Under the Canadian investment code, the result would be similar (Sec. 28 (1) (d) Investment Canada Act (cf. Chap. 4 fn. 360)): “For the purposes of this Act, a non-Canadian acquires control of a Canadian business only by […] the acquisition of voting interests of an entity that controls, directly or indirectly, an entity in Canada carrying on the Canadian business, where (i) there is no acquisition of control, directly or indirectly, of a corporation incorporated elsewhere than in Canada that controls, directly or indirectly, an entity in Canada carrying on the Canadian business, or (ii) there is an acquisition of control described in subparagraph (i) [,]” which led Muchlinski to conclude that such review of indirect acquisitions involves extraterritorial exercise of jurisdiction (Muchlinski 2007, p. 210). Other examples worth studying in future research could be environmental, intellectual property, and especially tax laws (on the discussion of a so-called digital tax on internet and other digital media companies cf. The Economist (2018bb); Rappeport et al. (2018) explaining the idea of taxing such companies at the place where they generate revenue instead of where their (statutory) headquarters is. The ever-current financial transaction tax could always have extraterritorial effects, even if only enacted by a group of states; see the last effort to this end: European Commission (2013), whose scope potentially extends to non-participating EU member states and third states, cf. Art. 3 (1) in conjunction with Art. 4 (1) (e), (2) (b) of that proposal. On the extraterritorial effects of the French financial transaction tax see Englisch and Krüger (2013), pp. 514, 517–518). Heightened interest has also been devoted to the banking and finance sector, where the United States can impose sanctions on foreign-based financial institutions if they violate embargoes or sanctions by executing customers’ orders, see Mayer and Albrecht (2015), p. 1226; Menzel (2011), pp. 79–82 and generally Mankowski (2015); Blumberg et al. (2018), Ch. 152 as well as Cremer (2016b).

See also April (1984) and Meng (1994), pp. 300 et seqq. with numerous examples. Beaucillon (2016), p. 123 calls blocking and claw-back statutes one of the forms “[d]enunciation of wrongful extraterritorial effects” can take.

Cf. Panel (2 April 2004 (adopted 1 June 2004)) Mexico - Measures Affecting Telecommunications Services, Report of the Panel, WT/DS204/R, para. 7.235; Noonan (2008), pp. 224, 273, 285 for the United States, EU, and Japan.

Martyniszyn (2017), p. 747; Sandrock (2016), pp. 37–38; Ryngaert (2008b), pp. 6–7; Posner and Sykes (2013), pp. 299–302 (also with some of the more meaningful bilateral co-operations on international level); Noonan (2008), p. 208; cf. Panel (2 April 2004 (adopted 1 June 2004)) Mexico - Measures Affecting Telecommunications Services, Report of the Panel, WT/DS204/R, paras 7.236, 7.244 on the rudimentary WTO rules on the subject; for a dated overview of cooperation agreements see Lowe (1988), pp. 226 et seqq.

Noonan (2008), p. 207.

Wallace (2002), pp. 447, 449–457 for the United States and Europe.

Cf., for the EU, Art. 101 and 102 TFEU as well as the EC Merger Regulation.

Sornarajah (2017), pp. 114, 121 argues that antitrust laws can be used to prevent the inflow of capital into an economy (much like an ISCM). The scope of economic warfare discussed in this work does not include domestic economic warfare (above Sect. 1.​3.​2).

Ryngaert (2008b), pp. 25, 27; Noonan (2008), p. 284.

See recently Court (6 September 2017) Intel Corp. v European Commission, Judgement, C-413/14 P, ECLI:EU:C:2017:632, para. 42; Behrens (2016), pp. 8–14; Akehurst (1973), p. 197; Ryngaert (2008b), pp. 26, 42–43; Noonan (2008), p. 273; Rehbinder (2012), para. 11; extensively Meng (1994), pp. 378–400. For EU merger control see Simon (2016), paras 30–31; Ryngaert (2008b), pp. 156–162.

Court (14 July 1972) Imperial Chemical Industries Ltd. v Commission of the European Communities, Judgement, Case 48/69, ECLI:EU:C:1972:70 establishing the so-called economic entity doctrine; Court (27 September 1988) A. Ahlström Osakeyhtiö and others v Commission of the European Communities, Judgment, Joined cases 89, 104, 114, 116, 117 and 125 to 129/85, ECLI:EU:C:1988:447 establishing the so-called implementation doctrine; see in detail Ryngaert (2008b), pp. 29–37; Noonan (2008), pp. 273–277; Knebel (1991), p. 274.

Gerber (1983), pp. 757, 760–762; Steinberger (1984), p. 94; Rehbinder (1965), pp. 151 et seqq.; Meng (1994), pp. 401–402; Wolfrum (1996), pp. 611–612 (para. 124); Akehurst (1973), p. 198; Bundesgerichtshof (12 July 1973) Rohrlieferung, Ölfeldrohre, Beschluss, KRB 2/72, Wertpapier-Mitteilungen 1973, p. 1070, paras 12–14; Kammergericht (16 June 1983) Philip Morris/Rothmans, Beschluss, Kart 16/82, ECLI:DE:KG:1983:0616.KART16.82.0A, Der Betrieb 1984, pp. 231, 234–235 (on what was then Sec. 98 (2) Act against Restraints of Competition 1980 (and before Sec. 130 (2) Act against Restraints of Competition 1957); the provision is no longer part of the Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen)). Noonan (2008), p. 285 suggests that the German Act against Restraints of Competition may have influenced the EU’s antitrust laws position on extraterritoriality.

Ryngaert (2008b), pp. 48–56; for a different explanation (territorial jurisdiction) see Staker (2014), p. 318.

Behrens (2016), pp. 7–8; Martyniszyn (2017), pp. 748–749; Ohara (1996), pp. 166–168.

Martyniszyn (2017), p. 749.

Its enterprises having been the target of extraterritorial application of United States antitrust law, Japan for a long time maintained a critical view of the practice. See International Bar Association (2009), pp. 13, 48–49; Martyniszyn (2017), pp. 750–761; Noonan (2008), pp. 224–273, 285–295. For the initially critical reaction of states see Meng (1994), pp. 375–378. Critical of the extension of the effects doctrine beyond antitrust (and criminal) cases is Mavroidis (2008), p. 283.

Ryngaert (2008b), pp. 3–4.

United States Court of Appeals for the Second Circuit (12 March 1945) United States v. Aluminium Co. of America et al., Judgement, No. 144, 148 F.2d 416 (2d Cir. 1945), p. 421; Ryngaert (2008b), pp. 9–10.

Cf. Gerber (1983), pp. 759–761.

Some would also add the jurisdictional rule of reason as curtailment. Ryngaert (2008b), pp. 57–63, 75–110; Herdegen (2016), pp. 103–104; Meng (1994), pp. 529–530; critical Jennings (1957), p. 175; Jennings (1962), pp. 221–222, 225–226; Mann (1973), pp. 88–91 (with ample further references in fn. 1 and 2 on p. 88); Mann (1990), p. 71; Akehurst (1973), pp. 193–196; Messen (1984), pp. 791–793 lists opposition to the effects doctrine in the wake of the Alcoa judgement.

Sandrock (2016), pp. 26–27; with numerous further references Meng (1994), pp. 527–528 (fn. 2159); critical Jennings et al. (1992b), pp. 474–475 (para. 139). Peters (2016), p. 153 (para. 17); Ziegenhain (1992), p. 30; and Wallace (2002), p. 744 list the United Kingdom as persistent objector to the effects doctrine, Alexander (2009), p. 79 adds Australia and Japan, calling into question its customary international law nature. Interestingly, Lowe notes (Lowe 1981, p. 274, fn. omitted): “In the light of the enthusiasm of the Commission (though not, as yet, of the Court) of the European Communities for the ‘effects’ doctrine, it is likely to become increasingly difficult for Britain to reject that doctrine. It could even be argued that were the doctrine to be established as a part of Community law, Britain would be bound to accept its validity. […] It might indeed appear that Britain has already espoused […]. But this is not a claim to ‘effects’ jurisdiction.”

With a typology Martyniszyn (2014), pp. 105–106. More generally April (1984).

European Commission (2012).

See the detailed analysis of the decree by Martyniszyn (2014), pp. 110–115 (also with an English translation on pp. 117–119); on questions of extraterritoriality in this case Martyniszyn (2015), pp. 292–293; see also Herdegen (2016), pp. 95–96.

Matsushita and Iino (2006), pp. 766–776.

A picture drawn by Martyniszyn (2014), p. 109; cf. similarly (blocking statutes constitute “an act of self-defence or reprisal or sanction against the international wrong inherent in the assumption of excessive jurisdiction by other States”, Mann (1990), p. 83 and see also Bowett 1983, p. 22).

For United States embargoes cf. Huck (2015), p. 993.

Cf. Akehurst (1973), pp. 167–168; Haellmigk (2018b), pp. 113–114; Pelz (2017), para. 76; Vogt and Arend (2017), para. 1.

April (1984), p. 231; Wallace (2002), p. 625; Herdegen (2016), pp. 93, 106; Mann (1990), p. 83; Lowenfeld (2008), p. 924; cf. Matsushita and Iino (2006), p. 762.

Chapter 4 fn. 71 above. For similar United States legislation see Burton (2013), pp. 106–108.

Sec. 7 sentence 1 AWV. The provision was introduced as Sec. 4a AWV by the 24th Verordnung zur Änderung der Außenwirtschaftsverordnung (BAnz No. 139, 29 July 1992, p. 6141). Since 29 December 2018, the provision has a second sentence (Art. 1 of the 12th Verordnung zur Änderung der Außenwirtschaftsverordnung (BAnz, AT, 28 December 2018, V1) (Ger)): “Sentence 1 does not apply to a declaration issued to comply with the requirements of an economic sanction of a state against another state against which also 1. the United Nations Security Council in accordance with Chapter VII Charter of the United Nations, 2. the Council of the European Union in accordance with Chapter 2 of the Treaty on European Union, or 3. the Federal Republic of Germany has decided to take economic sanction measures.” Details Hoffman (2019).

Sec. 81 (1) No. 1 AWV in conjunction with Sec. 19 (3) No. 1 (a) AWG. Prior to the 2013 reform of the AWG, transgressors even faced criminal sanctions; the provision ordering these was abolished due to constitutional concerns regarding its specificity (Vogt and Arend 2017, para. 29 (fn. 64)); for further legal consequences see Hoffman (2019), p. 320.

Sec. 134, 139 German Civil Code (Bürgerliches Gesetzbuch), official English translation available at https://​www.​gesetze-im-internet.​de/​englisch_​bgb/​englisch_​bgb.​html (accessed 21 January 2021). Vogt and Arend (2017), paras 31–33; Hoffman (2019), p. 320.

Cf. Vogt and Arend (2017), paras 15–16; Hoffman (2019), pp. 315–316.

Haellmigk (2018b), p. 112; Vogt and Arend (2017), para. 16.

Thus, the provision also applies to other state’s unilateral embargoes supported by Germany, Vogt and Arend (2017), paras 17–18.

Haellmigk (2018b), p. 109; Krumpholz (1993), p. 113. Commonly referred to as the Arab “boycott” on Israel.

Joyner (1984), pp. 216–221; Sarna (1986), pp. 5–7.

The so-called Unified Law on the Boycott of Israel adopted by the League of Arab States, Resolution No. 849, 11 December 1954 reprinted at Gilat (1992), p. 104 and Joyner (1977), p. 356, paraphrased by Lowenfeld (1977), pp. 26–27. For Jordan’s transposition of the resolution into domestic law see the reprint at Sarna (1986), pp. 193–195. On the Arab League in general see Heydte (1958), pp. 179–180.

Joyner (1984), p. 217.

Sarna (1986), pp. 14, 38; cf. Raphaeli (2006).

Joyner (1984), pp. 217–218.

Reprinted at Gilat (1992), p. 96. On this enforcement measure and others Sarna (1986), pp. 45–51. On the reaction of United States lawmakers cf. Lowenfeld (1977), pp. 34–38; Sarna (1986), pp. 81–118.

Haellmigk (2018b), pp. 110–113 on the legal minutiae of Germany’s blocking statute.

Haellmigk (2018b), p. 109.

Council Regulation (EC) No 2271/96 of 22 November 1996 protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom, OJ L 309, 29 November 1996, p. 1 (as amended from time to time)— Blocking Regulation—. For a good overview see Lalonde et al. (2013), pp. 195–201. A fundamental reform of the regulation as proposed by European Commission (2015) never took the hurdle of the ordinary legislative procedure (for renewed efforts see fn. 70 below). On proliferation of blocking statutes cf. on the one hand Mann (1990), p. 83; Bowett (1983), pp. 22–23; Vogt and Arend (2017), para. 45 and Haellmigk (2018b), p. 110 on the other hand with differing views.

Art. 5 Blocking Regulation. To be read in conjunction with Art. 11 Blocking Regulation. See especially Karpenstein and Sangi (2019), pp. 311–314.

Vogt and Arend (2017), para. 43 on the question of whether only the initial United States embargo laws or also subsequent ones fall under the ambit of the provision. See also Lalonde et al. (2013), pp. 196–197.

Lalonde et al. (2013), p. 198; Karpenstein and Sangi (2019), p. 313. In Germany, violations of the blocking statute are an administrative offence punishable by up to EUR 500,000 per infringement (Sec. 82 (2) AWV in conjunction with Sec. 19 (6) AWG).

See especially Lowe (1981), Lowe (1988), pp. 182–190; Detter Delupis (1994), p. 430; Staker (2014), p. 330; Oyer (1997), pp. 442–445; Cortese (2004), p. 745 (fn. 69).

Available at https://​eeas.​europa.​eu/​delegations/​iran/​32286/​nuclear-agreement_​en (accessed 21 January 2021). The agreement foresees a gradual lifting of sanctions against Iran in exchange for the shut-down of the Iranian nuclear program. Implementation had begun in early 2016, when the EU and the United States lifted some sanctions against Iran. The next liberalization was due in 2023. See in detail Haellmigk (2018a), p. 33

Karpenstein and Sangi (2019), pp. 309–310; Haellmigk (2018a), pp. 34–37 on the technical realization.

Commission Delegated Regulation (EU) of 6 June 2018 amending the Annex to Council Regulation (EC) No 2271/96 of 22 November 1996 protecting against the effects of extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom (and Annex thereto), C(2018) 3572 final; in detail Immenkamp (2018); Dover and Frosini (2012), pp. 27–31 and Karpenstein and Sangi (2019), pp. 311–314; cf. also Herdegen (2016), p. 92; The Economist (2018q).

Swaine (2018).

See also Mann (1990), p. 62.

Cf. Akehurst (1973), pp. 182–183; Shaw (2017), p. 484.

Above Sect. 1.​3.​2. It will be assumed in the following that international law has some influence on states’ constitutional boundaries for lawmaking, irrespective of how such influence may be implemented from state to state, cf. Sandrock (2016), pp. 78–79; Englisch and Krüger (2013), p. 514; Rudolf (1973), p. 12; Menzel (2011), pp. 213, 223. For Germany, cf. Art. 25 Basic Law for the Federal Republic of Germany: “The general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory”.

For a discussion of EU law boundaries on ISCMs see Hindelang and Hagemeyer (2017).

Cortese (2004), p. 745.

Mann (1990), p. 83; Martyniszyn (2014), p. 110.

April (1984), pp. 232–233.

Mann (1990), p. 83.

Mohamad (2015), p. 78 calls them “inherently extraterritorial in nature as they involve the application of a State’s national legislation beyond its territories”; Lowenfeld (2008), p. 924; Bartels (2002), p. 385; Karpenstein and Sangi (2019), pp. 310–311.

WTO (1996) reveals that the complaint was about: “(a) the extraterritorial application of the US embargo of trade with Cuba in so far as it restricts trade between the EC and Cuba or between the EC and the US.” On the United States embargo on Cuba see fn. 14 above.

Ryngaert (2008a), p. 224; Mann (1990), p. 62; see also Streit (2015), p. 369.

Beaucillon (2016), p. 105; Oyer (1997), pp. 438–439; cf. Bundesregierung (2007), pp. 5–6; Culot (2017), p. 345; Mann (1990), p. 62; Ryngaert (2008a), p. 224 concludes that “a State does not ordinarily have jurisdiction to impose a secondary boycott that requires corporations of another State to comply with the boycott laws of the former.”

Shaw (2017), pp. 69–72, 684.

Lee calls this strategy “ultimatumism”: Concessions are demanded with the threat of termination of agreements if not granted; according to Lee this is a “unique, unconventional, if not totally unprecedented, approach in international trade” (Lee 2017, pp. 442–443). It would seem that the qualification as measure of economic warfare within this work’s definition depends primarily on the exclusively economic character of the measure (above Sect. 2.​2.​2.​5.​2).

Cf. Elms and Sriganesh (2017), pp. 259–260; see also Lee (2017), pp. 426–427 and especially Petersmann (2018), pp. 476–477, 483–485. For the United States—Korea BIT and the United States’ “renegotiation strategy” see above Sect. 3.​4.​5 and Lee (2017), pp. 430 et seqq.). The United States is not the only state engaged in this practice (cf. Brewster (2018), pp. 379–380, 390–392); with regard to Venezuela’s withdrawal from the ICSID Convention see Chap. 4 fn. 439 above. Other examples include: Bolivia and Ecuador, which also renounced the ICSID Convention (Ripinsky 2012; see also Kobayashi 2017, pp. 387–388 for further examples).

The text, the negotiations of which were concluded in October 2015, signed in Auckland on 4 February 2016 (cf. Office of the United States Trade Representative (2016)), is still publicly available at the time of writing: Trans-Pacific Partnership—TPP—available at https://​ustr.​gov/​trade-agreements/​free-trade-agreements/​trans-pacific-partnership/​tpp-full-text (accessed 23 January 2021). A negotiation history is provided by Nakagawa (2017), pp. 409–412; for the magnitude of the agreement see The Economist (2018b).

In his letter to the TPP depositary (the government of New Zealand), the United States Trade Representative wrote (cited in Kobayashi 2017, p. 386 (fn. and author’s underlining omitted)): “This letter is to inform you that the United States does not intend to become a party to the Trans-Pacific Partnership Agreement. Accordingly, the United States has no legal obligations arising from its signature on February 4, 2016. […]”

It might seem a negligible technicality but while the president demanded “withdrawal”, the representative only pointed out that no legal obligation arose from mere signing (in lack of ratification). Thereby, the United States remain an original signatory to the TPP (Kobayashi 2017, p. 388).

It is important to note that the United States “withdrew” at a stage of the treaty-making process at which it was not yet legally bound.

Pursuance of the TPP was impossible due to a technicality (see in detail fn. 89 above and fn. 192 below, and Kobayashi 2017, pp. 589–591).

The text, signed on 8 March 2018 in Santiago de Chile, is publicly available: Comprehensive and Progressive Trans-Pacific Partnership Agreement—CPTPP—. History and policy considerations leading to the CPTPP are summarized by Nakagawa (2017), pp. 412–416. Its parties still account for more than ten percent of global GDP and accessions of more states is not unrealistic (The Economist 2018b; The Japan Times 2018). For a synopsis of the TPP and the CPTPP see New Zealand Foreign Affairs & Trade (2021).

Hsueh (2017), p. 359.

See Depositary Notifications C.N.464.2017.TREATIES-XXVII.7.d and C.N.575.2019.TREATIES-XXVII.7.d, available at https://​treaties.​un.​org/​doc/​Publication/​CN/​2017/​CN.​464.​2017-Eng.​pdf and https://​treaties.​un.​org/​doc/​Publication/​CN/​2019/​CN.​575.​2019-Eng.​pdf (both accessed 23 January 2021).

A detailed overview of the obligations under and content of the Paris Agreement is provided by Hsueh (2017), pp. 361–365; see also UN Climate Change (2021).

U.N.T.S. Registration No. I-54113 (not yet published in the U.N.T.S. Volume at the time of writing).

Although no direct threat to withdraw from the agreement was made by the United States officially (the President of the United States on Twitter declared “May have to terminate?”, see (The Economist 2017i; Brewster 2018, pp. 391–392), many observers expect just this outcome in case renegotiations fail; Irwin 2017; The Economist 2017l).

On the several rounds of negotiation see The Economist (2017h); in late August 2018, the United States and Mexico agreed on a revised version of NAFTA (cf. The Economist 2018h, i), which was later agreed upon by all NAFTA parties (see Chap. 3 fn. 199 above). For academic views see Hufbauer (2017a), Payosova et al. (2018), Dadush (2018).

The move to withdraw can be seen as a one to make good on campaign promises (Blackwill and Rappleye 2017 have collected five publicly stated reasons for the withdrawals; Dias Simoes 2017, pp. 267–269 offers a comparison of campaign promises and presidential action; Elms and Sriganesh 2017 give a more general overview of the United States’ new administration’s trade policy stances). Hence, it could be argued that the United States’ (threat of) withdrawal was driven by economic motives and thus falls within this work’s definition of economic warfare. The President of the United States expressly linked the withdrawal from the Paris Agreement to the invigoration of American coal mining and the steel sector, again making good on an election campaign promise, see The Economist (2017d), Abramson (2017), Hsueh (2017), p. 359.

The terminology applied here (“termination” as umbrella term, “withdrawal” as termination of multilateral agreements, and “denunciation” as termination of bilateral agreements) finds its basis in the wording of the VCLT and authoritative opinion, see Giegerich (2018a), paras 18–19; Villiger (2009), p. 685 (para. 4); Aust (2018a), para. 1; Peters (2016), pp. 117–118 (paras 43–44).

At the time of writing, the VCLT had 116 parties and 15 signatories without ratification (see https://​treaties.​un.​org/​Pages/​ViewDetailsIII.​aspx?​src=​TREATY&​mtdsg_​no=​XXIII-1&​chapter=​23&​Temp=​mtdsg3&​clang=​_​en (accessed 23 January 2021)). The United States have signed but not ratified the VCLT. See Maxeiner (2011), pp. 1124–1125; Villiger (2009), p. 689 (para. 12); Peters (2016), pp. 101–102 (para. 4); on the customary international law status of the VCLT’s provisions see Aust (2018b), paras 14–18; Shaw (2017), p. 685.

Staker (2014), p. 313.

Meng (1994), pp. 458–459 (also with references (in fn. 1961 to 1963) to outdated views that states’ extraterritorial legislation is impermissible per se or unlimited).

Schlochauer (1962), pp. 40–41; Bartels (2002), p. 369.

Cf. International Bar Association (2009), p. 6. The (preceding) question of whether jurisdiction is in fact subject to international law, answered in the affirmative by majority opinion (cf. Bowett 1983, p. 3 (also with references to the opposing view in fn. 8 and 9); Kamminga 2018, para. 7; Jennings 1957, pp. 150–151; Mann 1973, p. 4), will not be pursued here. Instead, applicability of international law is assumed here.

Staker (2014), p. 310.

Mann (1973), pp. 5–6, 37–38, originally published as Mann (1964); Sandrock (2016), p. 79; Meng (1994), p. 498.

Meng (1994), p. 498.

Schlochauer (1962), pp. 38–39; Peters (2016), p. 147 (para. 1): “Jurisdiction is the state competence [Zuständigkeit] to exercise sovereign powers.” (Ger). In German, the word Jurisdiktion is (if at all) mostly used in the narrow sense of courts’ competence to adjudicate, but, as Meng has shown, this narrow understanding is not compulsory and understanding Jurisdiktion according to international custom is possible (Meng 1994, p. 3).

Higgins (1984), pp. 3–5. For a comprehensive overview of the historical development of the (dogmatic) discourse on international jurisdiction see Sandrock (2016), pp. 22–77. For an overview and explanation of the different approaches in common law and civil law of continental European states see Staker (2014), pp. 311–313. On terminological questions Mann (1973), pp. 6, 8.

Cf. Akehurst (1973), pp. 145–146, 152, 179; Shaw (2017), pp. 486–487; Bowett (1983), p. 1; Jennings (1962), p. 212; Staker (2014), pp. 312–313; Mann (1973), p. 6; Mann (1990), p. 4; Meng (1994), pp. 6–10. Many of these (and other) authors argue that an often quoted third type of jurisdiction—juridicial jurisdiction—is merely a reflex of prescriptive jurisdiction and no category of its own. Judicial jurisdiction means the competence of courts of one state to adjudicate cases whose facts in some way relate to another state. It seems that juridical jurisdiction is mainly endorsed in the United States whereas the rest of the world follows the binary division of jurisdiction (International Bar Association 2009, pp. 7–8; for continental Europe see Menzel 2011, pp. 322–323 and Peters 2016, p. 147 (para. 1)). Meng reasons that the separation of juridicial jurisdiction is but a consequence from the ambiguous position of courts somewhere between prescription and enforcement; since courts are not engaged in (forcible) enforcement, however, their actual role is only prescriptive (Meng 1994, pp. 9–10). For the purposes of this study, this dispute shall not be expanded on. The custom to distinguish only between legislative and executive jurisdiction, which seems justified at least in the present context of administrative and public law, will be adhered to here (cf. Menzel 2011, p. 323).

Cf. Mann (1973), pp. 111–112; Mann (1990), pp. 19, 21; Englisch and Krüger (2013), p. 517; Weil (1984), p. 35; with qualifications Oxman (2018), para. 5.

Beaucillon (2016), p. 110; Cassese (2005), p. 49; Englisch and Krüger (2013), p. 516; European Court of Human Rights (12 December 2001) Bankovic and Others v. Belgium and 16 Other Contracting States, Grand Chamber Decision (Admissibility), 52207/99, ECLI:CE:ECHR:2001:1212DEC005220799, p. 59; Jennings (1957), p. 149; Jennings (1962), p. 216; Mann (1990), pp. 22 et seqq.; Meng (1994), pp. 59, 116–117; Menzel (2011), p. 313; PCIJ (7 September 1927) The Case of the S.S. Lotus (France v. Turkey), Judgement, Publications of the PCIJ, Series A. - No. 10, para. 45; Peters (2016), p. 147 (para. 1); Rudolf (1973), pp. 33–34; Ryngaert (2015), p. 9; Staker (2014), p. 331; Wallace (2002), p. 772; cf. also Bundesverfassungsgericht (22 March 1983) Rechtshilfevertrag zwischen der Bundesrepublik Deutschland und der Republik Österreich, Beschluss, 2 BvR 475/78, BVerfGE 63, p. 343 (para. 68).

Menzel (2011), pp. 314–315; Meng (1994), pp. 117 et seqq.; Staker (2014), p. 332.

Mann (1990), p. 4; Bowett (1983), p. 1.

See Jennings et al. (1992a), p. 457 (para. 136); Menzel (2011), pp. 323–325. Mann carefully divides the concepts of sovereignty and prescriptive jurisdiction (Mann 1973, p. 9, see also p. 22): “Legislative jurisdiction should be clearly distinguished from sovereignty. The doctrine of legislative jurisdiction answers the question whether and in what circumstances a State has the right of regulation. If, and insofar as, the right exists, it is exercised by the State in virtue of its sovereignty. The distinction is, therefore, pronounced.”

Cf. International Bar Association (2009), pp. 8–9; Staker (2014), pp. 315, 333; Oxman (2018), para. 10; Noonan (2008), p. 211; critical Gondek (2009), p. 51.

Jennings et al. (1992a), pp. 458–459 (para. 136); Peters (2016), p. 148 (para. 4); see also Kammergericht (16 June 1983) Philip Morris/Rothmans, Beschluss, Kart 16/82, ECLI:DE:KG:1983:0616.KART16.82.0A, Der Betrieb 1984, pp. 231, 232.

Meng (1994), pp. 542–544 has compiled the common formulations. See also Huck (2015), p. 994; Karpenstein and Sangi (2019), p. 310. For the reasonableness test cf. Bundesregierung (2007), pp. 2–3.

Cf. Menzel (2011), p. 223; Ryngaert (2015), p. 29. Menzel (2011), p. 223; Weil (1984), p. 32; and Meng (1994), p. 482 also uncover that the question is obviously related to one of the more fundamental problems of international law: Are states on principle allowed to “do as they please” save for a restrictive rule to the contrary? Or is their freedom of action only vested in them by virtue of permissive rules to this end? This question is addressed in greater detail below (Sect. 7.​1.​1).

Papathanasiou (2018), p. 82 (fn. 15).

PCIJ (7 September 1927) The Case of the S.S. Lotus (France v. Turkey), Judgement, Publications of the PCIJ, Series A. - No. 10, paras 44–46 (emphasis added): “[44] […] Restrictions upon the independence of States cannot therefore be presumed. [45] Now the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention. [46] It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion, which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.”

See Vogel (1965), p. 144; Rudolf (1973), pp. 18–19; Lowenfeld (2008), p. 901; Dodge (1998), pp. 111–112 calls this the vested rights theory and Menzel (2011), p. 350 with a tendency towards this approach; Meng (1994), p. 485 (fn. 2019, 2031 to 2034) for further references.

Weil (1984), p. 32; Ryngaert (2015), p. 29; Kamminga (2018), para. 9; Englisch and Krüger (2013), p. 515; Herdegen (2016), p. 101; Mann (1973), pp. 26–27; International Bar Association (2009), p. 9.

Ryngaert (2015), pp. 29–30; some authors view the PCIJ Lotus verdict outdated, wrong, or simply not transferable, for instance Sandrock (2016), p. 24; Herdegen (2016), p. 101; Mann (1990), p. 17; Englisch and Krüger (2013), pp. 514–515; Menzel (2011), p. 225.

Beaucillon (2016), p. 109. To the present author it would seem sensible to assume that states on their territory generally have prescriptive jurisdiction as a consequence of sovereignty and require no permissive rule whereas any extraterritorial reach requires a permissive rule due to the fact that other states’ jurisdiction (and sovereignty) is touched upon (in this sense see also International Bar Association (2009), p. 9).

Menzel (2011), p. 224; Meng (1994), pp. 488–489; Beaucillon (2016), p. 112; Ryngaert (2015), p. 44 (who, however, suggests a compromise).

Cf. Lowe (1988), p. 179 with an account of the United Kingdom’s concordant view on the issue.

Sandrock (2016), p. 21; Meng (1994), pp. 466, 498; Jennings (1957), p. 175; cf. Rudolf (1973), p. 22; Meessen (1984), p. 790; Herdegen (2018), para. 11.

Cf. Staker (2014), p. 333.

International Bar Association (2009), pp. 16–21 notes that, with only minor exceptions, no treaties exist in regard to international jurisdiction; Lowenfeld (2008), p. 901 writes: “No treaty or convention governs jurisdiction to prescribe or to enforce.” See also Ryngaert (2015), pp. 44, 145–146; Meng (1994), pp. 460, 564; examples for international agreements with jurisdictional provisions are listed by Peters (2016), p. 150 (para. 10) and Staker (2014), pp. 323–325. For a different view (based on a broader conception of what qualifies as treaty on jurisdiction) see Menzel (2011), p. 230.

Jennings (1957), p. 148; Rudolf (1973), p. 11; Mann (1990), p. 4; Mann (1973), p. 22; Bowett (1983), p. 4; see also Meng (1994), p. 482 who adds that sovereignty is itself confined by international law. Others prefer the principle of non-intervention as meta-principle, without different results, see Menzel (2011), pp. 323–325.

Ryngaert (2015), p. 37.

Mann (1973), p. 22; Mann (1990), p. 4.

Mann (1990), p. 4.

As Maier (1996), p. 65 puts it (emphasis added): “[The] term, ‘sovereign state’ describes nothing more – and nothing less – than a group of people with a general commonality of interests living in an artificially bounded geographical area.”

Rudolf (1973), p. 33; Jennings (1962), p. 210 even refers to it as a maxim; International Bar Association (2009), p. 11. Extensively Ryngaert (2015), pp. 49–100.

Menzel (2011), p. 304; see also pp. 330–335.

Cf. Mann (1973), pp. 51–52; Herdegen (2016), pp. 96–97; Sandrock (2016), pp. 58–60; Ryngaert (2015), pp. 68–77; accordingly, statutes should be read as to apply only within the territory of the enacting state unless they give indication to the contrary, Rudolf (1973), p. 9 (but see also p. 43 (no. 4)).

Although many commentators object to the transposition of jurisdictional concepts originally developed in international criminal law (cf. fn. 144 below) to other fields of law, this issue is not pursued further here (cf., for instance, on the one hand, Mann 1990, pp. 4–5 and Bowett 1983, pp. 1–3 and, on the other hand, Jennings 1962, p. 211 and Ryngaert 2008b, pp. 15–18).

As Mann noted, “dollar balances like goods have no nationality and it could not be argued that, since the United States has control over the dollar as a currency, it also had control over all contracts denominated in dollars, wherever they may have been made […]” Mann (1990), p. 62.

Mann (1973), pp. 37, 39; Mann (1990), p. 13; Herdegen (2016), p. 101; Rudolf (1973), pp. 22–23.

See Oxman (2018), paras 22–26; Herdegen (2016), p. 102; Ryngaert (2008b), pp. 15–18; Kamminga (2018), para. 17. Many authors consider that the PCIJ in its Lotus decision laid the groundwork for the effects doctrine (cf., for instance, Englisch and Krüger 2013, p. 515).

Herdegen (2016), p. 102. Originally developed in international criminal law (where at least one of the constituent elements of the criminal statute would have to materialize within the regulating state’s territory) (cf. Jennings 1962, pp. 214–216; Ryngaert 2008b, p. 15), the transposition of this doctrine to fields of law where no constituent elements in the criminal law sense exist, has been described as a “slippery slope which leads away from the territoriality principle towards universal jurisdiction” (Akehurst 1973, p. 154).

Cf. Ryngaert (2008b), pp. 57–63.

Bartels (2002), p. 373; see also the references in fn. 38 above.

It is not correct to distinguish between the territoriality principle as sole bedrock of territorial state jurisdiction and the remaining principles (which are to follow) as the only ones to exceptionally justify extraterritorial jurisdiction because this would ignore the fact that the effects doctrine extends the territoriality principle to extraterritorial legislation as well (cf. Jennings 1957, pp. 148, 153).

Staker (2014), pp. 318–321; Mann (1990), p. 4: “[A]s a rule jurisdiction extends (and is limited) to everybody and everything within the sovereign’s territory and to his nationals wherever they may be.” It should be noted that Mann bases jurisdiction primarily on sovereignty, which in his view is territorial and personal.

Akehurst (1973), pp. 206–207; Bowett (1983), pp. 7–10; Oxman (2018), paras 18–21. An emanation is the passive personality principle, which appears to be a version of the territoriality principle, because it takes into view whether the person affected (or injured) is a citizen of the regulating state (see Jennings et al. 1992a, pp. 471–472 (para. 139); Dover and Frosini 2012, p. 10; Ryngaert 2015, pp. 110–113). The same can be said of Herdegen’s principle of control, which seems to be an extension of the personality principle (for instance, to state B shareholders behind a state A corporation), Herdegen (2016), pp. 104–105.

Bowett (1983), pp. 10–11; Oxman (2018), paras 27–28; Ryngaert (2015), p. 114. See, for example, the crimes listed in Sec. 5 of the German Criminal Code (Strafgesetzbuch) (cf. Chap. 2 fn. 86 above).

Jennings et al. (1992a), pp. 469–470 (para. 139) (also with further examples); Peters (2016), pp. 154–161 (paras 20–38); Oxman (2018), paras 37–45; Bowett (1983), pp. 11–14.

International Bar Association (2009), p. 23; Peters (2016), p. 162 (para. 40); Englisch and Krüger (2013), p. 515; Ryngaert (2015), pp. 142–144. It appears that the process of balancing the principles and the finding of the adequate “genuine link” occur on a case-by-case basis in different fields of law, cf. Herdegen (2016), pp. 105–109; Sandrock (2016), p. 93; Mann (1973), pp. 41 et seqq.

Cf. Meng (1994), p. 562. On the position of the United Kingdom see Lowe (1988), pp. 180, 182. Prominent advocates are Mann (1964), p. 90 and Jennings et al. (1992a), p. 458 (para. 137). Naturally, the advocates of the primacy of the territoriality principle consequently also reject the effects doctrine.

Ryngaert (2015), p. 142.

Maier (1996), p. 69; Schlochauer (1962), p. 39; vehemently against this approach Meng (1994), pp. 558–559.

See especially American Law Institute (1987), para. 403 (on the legal quality of the Restatement see Meessen 1987, pp. 47–48 and Olmstead 1989); Menzel (2011), p. 328; Ryngaert (2015), pp. 152–187. The approach’s benefit (flexibility) is also its downside (unpredictability). Vehemently in opposition to this concept is Mann (1964), pp. 30–31.

Ryngaert (2015), pp. 181–184; Meng (1994), pp. 564–569; for a different view see Ziegenhain (1992), p. 52, who claims that a customary principle exists (deduced from more general principles of international law).

For instance, if state A were to forbid its citizens to use turn signals at home and abroad (i.e. exercise jurisdiction on the basis of the nationality principle), state B’s right to demand their very use (i.e. the exercise of its territorial jurisdiction) by all driving public would naturally prevail as it is state B’s prerogative to regulate traffic within its territory. See Bowett (1983), pp. 7–8. In addition, a state cannot demand of its citizens acts deemed illegal under the laws of the state they reside in. Also, state B’s law is backed by enforcement jurisdiction while state A’s is not (see Mann 1973, p. 29).

Weil (1984), pp. 34–35, 37. Take Akehurst’s example (Akehurst 1973, pp. 188–189, see also p. 208): “A more controversial situation arises where nationals of State A own industries in State B. Although a State is normally entitled to legislate for its nationals abroad, it is submitted that State A is not entitled to use such legislative power in a way which would mean imposing its own economic policy on State B.”

Dodge (1998), pp. 121 et seqq.; Meessen (1987), pp. 53 et seqq.; Meng (1994), pp. 569 et seqq.; Bartels (2002), p. 370; International Bar Association (2009), pp. 22–31; see especially Ryngaert (2015), pp. 145 et seqq., who finds the current state unsatisfactory and proposes (or identifies) a rule of reason to resolve such conflicts de lege ferenda.

Meng (1994), p. 108 (Ger).

The belief that states will usually not use extraterritorial laws is disappointed (cf. Jennings et al. 1992b, p. 466 (para. 139) (fn. omitted): “As a general rule states do not seek to exercise civil or criminal jurisdiction over foreign nationals in foreign states.” See similarly Meng (1994), p. 108: “No state will arbitrarily exercise extraterritorial jurisdiction.” (fn. omitted) (Ger)).

Term inspired by Gestri (2016), p. 99.

Gestri (2016), p. 79; cf. also p. 99.

Indeed do EU sanctions, in comparison to those of the United States, not punish legal persons resident abroad for non-compliance, see Gestri (2016), pp. 79–80.

Meng (1997), p. 290.

Staker (2014), p. 310.

See especially: Beaucillon (2016), pp. 119–123, who concludes (p. 123): “In all other cases, which constitute the vast majority, existing State practice is therefore contrary to international law.” Peters (2016), p. 377 (para. 45), who declares the embargo of the United States against Cuba a violation of international law on the ground of overstepping the boundaries of extraterritorial jurisdiction. Neuss (1989), p. 102 takes the view that an extension of national embargo laws to third states is only permissible if the third states are obliged by international law to join in the embargo (due to allegiance to the embargoing state), which will rarely ever be the case. Also critical are Ress (2000), p. 40 and Meng (1997), pp. 303–306 (the latter without a final commitment).

Meng (1997), pp. 296–297.

Weil (1984), pp. 34–35, 37 (emphasis added).

See, for instance, the symptomatic statement of the German Federal Government in Chap. 3 fn. 1 above.

Meng (1997), p. 289 and fn. 8 above.

Mavroidis (2008), p. 278 would doubt even the solidity of the territoriality principle, which in his view becomes “elusive” through its extension by the effects doctrine.

Menzel (2011), p. 350; Ress (2000), p. 42.

Meng (1994), pp. 558–559; Beaucillon (2016), p. 108.

Meng (1997), pp. 296–297 (for English see p. 327); Lowenfeld (2008), p. 915; Culot (2017), p. 345; Herdegen (2018), para. 17; Menzel (2011), p. 271 (on the relevance of international law in this context see pp. 218, 220, 229). For fiscal legislative jurisdiction cf. Qureshi (1987), p. 21.

Cf. Meng (1994), pp. 108, 115–116.

Beaucillon (2016), p. 126 (fn. omitted). Originally, Beaucillon refers to “unilateral sanctions”. In order to fit the terminology of this work, this term had to be substituted by “embargoes” (without changing the meaning).

Mann (1990), p. 83; Schlochauer (1962), pp. 41–42; Bartels (2002), p. 369 with ample further references in fn. 71; see also Bowett (1983), p. 22.

This is probably not the only issue: While Schlochauer sees the possibility of state responsibility, he submits that not every effect of one state’s laws on foreigners (in their home state) is an international wrong, but with certainty those effects caused by laws in violation of international jurisdiction are; the mere fact that not a foreign state (but its citizens and legal persons) are injured by the international wrong is no hinderance for him (Schlochauer 1962, pp. 41–42).

Cf. Martyniszyn (2014), p. 113 calls the Russian blocking legislation an “unfriendly measure”.

Staker (2014), p. 330; similarly Mavroidis (2008), p. 277.

Beaucillon (2016), p. 103 (emphasis added). Regarding the term “embargoes” see fn. 178 above.

The German term is less misleading than “freedom of contract”, because it also captures treaties, see Delbrück et al. (2002), pp. 535–536 (paras 1–2).

Chapter 3 fn. 585 above.

Art. 52 VCLT reads: “A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.”

Partridge (1971), p. 767; Seidl-Hohenveldern (1999), p. 159; Garçon (1997), p. 162; Peters (2016), pp. 115–116 (para. 39); economic force was not included in the VCLT but exiled into an annex of the Final Act of the United Nations Conference on the Law of Treaties (UN (1971), p. 285 (A/CONF.39/26)), where it is of declaratory value. In detail Kearney and Dalton (1970), pp. 533–535; Brosche (1974), pp. 27–30. Also critical (from a law and economics perspective) is Guzman (2008), pp. 60–63.

Under rare circumstances, which lie beyond the scope of this work, states may even dispose of their right to withdraw from a treaty, see Giegerich (2018a), para. 47; Aust (2018a), paras 17–22.

Villiger (2009), pp. 685–686 (paras 5–6).

Schröder (2016), p. 586 (para. 113). Art. 60 VCLT raises some question as to how it supersedes or modifies the law of countermeasures, see Crawford (2013), pp. 678–684; Tomuschat (1973), pp. 187–188, 193–194.

Such rights are often granted to the parties in the treaty itself (see, for instance, Art. 24.2 KORUS), cf. Lee (2017), p. 433.

Art. 30.5 (1) TPP: “This Agreement shall enter into force 60 days after the date on which all original signatories have notified the Depositary in writing of the completion of their applicable legal procedures.”

Interestingly, the text also made provision for the case that not all signatories would also ratify in Art. 30.5 (2) and (3) TPP. Despite these provisions, the remaining TPP parties could not have moved on with the original TPP text instead of negotiating CPTPP because the United States constitutes 60% of the TPP parties’ cumulative GDP (Kobayashi 2017, p. 389). This reading is contingent on the status of the United States as original signatory in the sense of Art. 30.5 TPP because if it were not, its GDP share would not count. Since the United States Trade Representative only declared not to be bound by the signature but not to retract it, the United States still hold the status of original signatory (see fn. 89 above). In the word’s of Kobayashi (2017), p. 389: “[TPP] can go nowhere without US ratification.”

The VCLT’s reference to “party” and “parties” instead of “signatories” in this regard is quite clear (cf. Art. 54, 55 VCLT). Kobayashi (2017), p. 392; cf. Villiger (2009), Art. 54 VCLT, para. 3.

Kobayashi (2017), pp. 384, 391, 395–397.

Many were the options to prevent the TPP from realizing without the memorandum, see Dias Simoes (2017), p. 269; Kobayashi (2017), p. 385.

Hence, the withdrawal can take effect no earlier than 4 November 2020; cf. Hsueh (2017), pp. 368–369 and fn. 94 above.

Less obvious is the possible violation of international investment law, which could yet place a restraint on this type of economic warfare, see Hsueh (2017), pp. 369–376 and Miles (2017).

Cf. Kausch (1977), p. 30.

Cf. Suzuki (2020), pp. 195–196; Swaine (2018); Spiegel Online (2018h); see also Karpenstein and Sangi (2019), pp. 309–310.

See Bothe (2016b), pp. 666–675 (paras 104–120); Bothe (2013).

Neff (1990a), pp. 73–80.