Netherlands Yearbook of International Law 2016

This introductory chapter presents some of the key issues and developments surrounding the relationship between territory and international law. While most rules of international law are traditionally based on the notion of State territory, new developments have challenged territory as the main organising principle in international relations. In particular, three trends have affected the role of territoriality in international law: the move towards functional regimes, the rise of cosmopolitan projects claiming to transgress state boundaries, and the development of technologies resulting in the need to address intangible, non-territorial, phenomena. Yet, notwithstanding some profound changes, it remains impossible to think of international law without a territorial locus. The contributions to this Volume demonstrate that, if international law is undergoing changes, this implies a reconfiguration of territory, but not a move beyond it.

The chapter considers whether a State can exist without territory. It argues that if the functional theory of territory is accepted, then the concept of a deterritorialized State may indeed be conceivable. The chapter however cautions against embracing this concept hastily, drawing attention to four caveats. First, the functional theory requires solid justification that is so far lacking. It is not so evident that territory is nothing more than a special tool people use and would be ready to abandon. Secondly, even if the theory is accepted, doubts arise as to whether all the traditional functions of territory can, in the current state of affairs, be assumed by a substitute and what this substitute would be. Thirdly, there are no historical ‘precedents’ of deterritorialized States to demonstrate the viability of the concept. Fourthly, other options are available to respond to the problems that the concept of deterritorialized State is supposed to resolve, especially the problem of disappearing States. As long as the concept remains insufficiently developed, these other options may seem preferable.

Territory is central to the doctrine of international jurisdiction. However, the use of territory as the jurisdictional linchpin is a political choice, the result of a confluence of historically specific political, material, epistemic, and above all mapping practices. The political contingency of territory begs the question whether alternative, non-territorial jurisdictional concepts could be contemplated. In this contribution, community, temporality, and justice are explored. The territorial imbrications of these jurisdictional alternatives are acknowledged, but it is highlighted how territory can in fact be re-conceptualized in the service of ‘its others’. Opting for the ‘others’ and for a novel conceptualization of territory remains a political choice. However, the political character of jurisdiction is not something to lament, but rather to celebrate, as it creates opportunities for a variety of political actors to have an impact on the actual application and construction of the un(der)determined notions of jurisdiction and territory, and ultimately on the modes of exercise of public authority. The salience of these theoretical ideas is exemplified by applying them to the case of transnational human rights litigation against corporations, a manifestation of socio-legal globalization that encapsulates the key role played by jurisdiction in negotiating claims of authority.

Territoriality is a powerful architecture of association in international law, performing significant bounding, distributive and placement functions. Yet it has always interacted with other global legal architectures of affiliation and disaffiliation, among them informational geographies. So what becomes of territoriality amid the turn to data analytics—the automated analysis of massive, distributed data sets—as a basis for international legal and policy decision, action, thinking, and prediction? This chapter recounts processes and practices already underway on the global plane that are effecting, on one hand, the ‘datafication’ of territory (and the related rise of a logic of association) and, on the other, the ‘territorialisation’ of data (and the emergence or recurrence of ‘data territories’) in international legal order. Through these kinds of processes, and in its variable configurations, data might yet parallel physical territory (landed and maritime) as a primary medium for the conduct of juridical global life and conflict, a prospect that raises important questions for international law and lawyers.

This chapter explores how the internet materializes in one of the most influential writings on cyberwar and international law, the Tallinn Manual on the International Law Applicable to Cyber Warfare. Based on the work of Molly Sauter, this chapter examines the metaphor used in the Manual to describe the internet, what effect this particular metaphor has, and at which points specific situations made possible by ‘cyberspace’ escape the confines of this particular metaphor.

This chapter aims to explore policy proposals to deal with one of the most complicated problems posed by the Internet, namely that of jurisdiction. While cybercrime is a phenomenon without borders, the effective prosecution of such a crime is seriously hampered by conflicts of territoriality and jurisdiction. These problems are exacerbated by the evolution of information technology, in particular cloud computing which creates ‘loss of location’ problems for collecting the electronic evidence indispensable for prosecuting crime. The Cloud Evidence Group—a Working Group established by decision of the Cybercrime Convention Committee (T-CY) of the Council of Europe—has proposed, within the limits of agreed legal principles of territoriality and jurisdiction, a series of measures which, together with proper implementation of the Convention, would enable fast and effective access to electronic evidence, while respecting human rights and the rule of law.

Recent scholarship in international law has studied the phenomenon of deterritorialization and, in this context, has framed territoriality and functionality as competing modes of organizing the global political order. In this chapter, we challenge this vision by exploring the hypothesis that territoriality and functionality, rather than mere substitutes or competitors, impart meaning to each other. To test this hypothesis, we identify different modes by which functionality and territoriality interact in the reconfiguration of the international legal space, and in particular in the trade and investment regimes. In the context of international trade law, we show how territoriality is multiplied, and how it gives meaning to functionality, in particular at the intersection of the trade regime and regimes for the protection of health and environment. We further develop the idea of the emergence of techno-territoriality, where norms allegedly promoting global technocracy are being shaped by territoriality. The analysis of the international investment regime engages with the threats that contractual clauses exert on territoriality in the context of investment operations, the significance of the territorial nexus requirement in the definition of investment, when intangible financial instruments are involved, as well as the ‘international-territoriality’ mode conveyed by the activities of sovereign investors abroad. We conclude by arguing that territoriality is not subsumed by functionality, but is rather undergoing a process of transformation into ‘non-modern’ territoriality: the reassertion of territoriality in investment and trade regimes, albeit in different forms, should be looked at as a positive development to keep alive the ‘public’ core of international law.

This chapter focuses on citizenship as an increasingly important aspect of the relationship between international law and the delineation of territories. Traditionally, nation-states are tilted towards an identification of their established population with its nationality. In times of rapidly growing migration and border-crossing relations, this identification is under pressure and requires additional—often contested—rules about acquisition and loss of citizenship. At first sight, increasing hyper-connectivity on a global scale would seem to diminish the importance of territoriality for citizenship. However, a re-assessment of the importance of citizenship for the realization of fundamental rights supports paradoxically a connection of citizenship with the territoriality of a democratic society. The notion of citizenship has to be reconnected to that of territory, but in a different manner than in the past. The territorial state provides the constitutional setting for citizenship free from ethnic privileges and prejudices. This means that the state should constitute the democratic home for people who participate in its social, economic and cultural life.

The framework for refugee protection established around 1950 seemed to be essentially territorial. In this chapter, the ways in which states redefined entry into territory and indeed territory itself in order to accommodate schemes for migration control and to limit refugee law obligations is explored, as well how states, drawing on the notion that refugee law applies within the territory, set up border controls away from their borders. Furthermore, the responses of human rights treaty monitoring bodies are analysed - both as regards the redefinitions of borders and territory, as well as regards extraterritorial acts. The picture is mixed: on the one hand human rights law did develop constraints on state actions, on the other hand the notion of territoriality limits alternative human rights law approaches to define state responsibility.

Any post-Brexit accord between the UK and the EU will redefine who exercises jurisdiction—and sovereign control—over the UK’s territory. Every engagement in an international agreement by a State may be viewed as entailing a loss of sovereignty, and in certain circumstances, an alienation of its power to regulate its territory. However, it may also be construed as an exercise of sovereignty. States enter such agreements precisely because they have the power to do so. A corollary thereof is the power to regain control over their own affairs. However, in an era when interdependence has superseded independence as the norm, we may question whether defining states based on territorial sovereignty is even appropriate anymore. Securing investment and trade requires international oversight, once integration surpasses a certain threshold. In such circumstances, a state’s territory becomes the subject of overlapping jurisdiction. Brexit will not come without a cost, and mitigating this may ironically involve further alienation of sovereignty, via parasitic attachment to the EU, whereby the UK may find itself forced to accept European norms without having a role in their elaboration. The alternative is a future involving an unambiguous reassertion of control, but with a virtual certainty of less prosperity. One may view the equation facing the UK as a balancing act between exclusive territorial control and economic prosperity.

The central topic of this chapter is Dutch state practice with regard to the international armed fight against ISIS in Iraq and Syria. This state practice manifested itself as a Dutch contribution to aerial bombardments in Iraq from October 2014 onwards, and in Syria from January 2016 onwards. In order to uncover its details, the authors primarily examined the various parliamentarian debates held on the international legal aspects of contribution to this armed struggle. What is striking about these debates is that international law played a particularly important role in answering the question of whether the Netherlands should contribute militarily to the fight against ISIS. Remarkably, the Dutch government changed its legal position on the legality of bombarding ISIS in Syria within a period of nine months. The fact that the Dutch government and an increasing number of Western states have started to give a more extensive interpretation of the right of collective self-defence with regard to the fight against ISIS in Syria, has everything to do with the current global disorder, in which failed states and militant non-state actors are commonplace. Public international law adapts to this new ‘world disorder’ by incorporating that state practice which allows for more lenient interpretations of the rules regarding the use of force.

This chapter will analyse the legal consequences of the outcome of the Dutch referendum of 6 April 2016 concerning the EU-Ukraine Association Agreement. The result of the referendum raised the question whether a single Member State can ‘veto’ the entry into force of a bilateral association agreement. Due to the unprecedented nature of this situation and the fact that the EU Treaties do no give a clear answer to this question, many issues related to the non-ratification of mixed agreements remain unclear. Therefore, after briefly analysing the ‘mixed’ nature of the EU-Ukraine Association Agreement and its current legal status, the legal consequences of the Dutch ‘tegen’ (against) are explored, focussing on the provisional application of the agreement. Finally, the solution of the Dutch government to deal with the outcome of the referendum, and some alternatives, are discussed.

The taxation of multinational enterprises is currently subject to intensive international and national debates. In these debates the Netherlands has sometimes been labelled as a ‘tax haven’. This term has a strong negative connotation. In any case, a country’s reputation is at stake if it is qualified as a tax haven. The main research question of this chapter is: Is the Netherlands a tax haven? In this context, it will be discussed whether the following features make the Netherlands a tax haven: (1) The Dutch participation exemption (2) The non-existence of withholding taxes on outbound interest and royalties (3) The Dutch tax treaty network (4) The Dutch advanced tax ruling and advance pricing agreement practice (5) The Dutch exchange of information rules and practice.The chapter starts with the question of whether tax havens are a problem. Subsequently, it discusses a number of definitions of the term tax haven. Based on one of them, the Netherlands’ position will be tested and the research question will be answered. At the end, the author sums up his main conclusions and suggestions for improvement of the Dutch tax system, inter alia in respect of letterbox companies.

In 2014, the Supreme Court of the Netherlands switched from a binary to a contextual approach to the question whether a treaty provision has direct effect. In this contribution, the new approach is discussed in a historical perspective and linked with some other developments in Dutch case law that further enhance the possibilities for the national courts to enforce treaties: the interpretation of treaty provisions by means of non-binding but authoritative decisions of international supervisory bodies and the treaty-consistent interpretation and application of domestic law.