EXTRATERRITORIAL JURISDICTION TO ENFORCE IN CYBERSPACE? BODIN, SCHMITT, GROTIUS IN CYBERSPACE

Abstract

What is at stake if justice authorities decide to hack a computer system that is physically located on a server outside the territory of the state they represent – for instance, because a malicious attack was operated from foreign territory, causing serious harm to a variety of computing systems? The article explores potential answers to this question, starting with a discussion of the makings of territorial jurisdiction. My starting point is an inquiry into the territorial spatiality of modern jurisdiction that traces the history of the idea of mutually exclusive jurisdiction that informs international law. I will argue that such territorial spatiality has been generated by the technologies of cartography and discuss how this connects with the notion of terror, with Bodin’s absolute sovereignty, and with Schmitt’s understanding of occupatio as central to territorial sovereign jurisdiction. Next, I investigate the powers of extraterritorial jurisdiction in the light of Grotius’s Mare Liberum. His natural law theory entails that the high seas be seen ‘as a passage’ and ‘a global commons’ that enable free trade and the common good of mutual collaboration between independent states. The eschatological overtones of Grotius’s belief in the moral and economic benefits of free trade have been coined ‘economic theology’ by Agamben, paraphrasing Schmitt’s ‘political theology.’ We can detect a similar ‘economic theology’ in early descriptions of the benefits of cyberspace. This, finally, raises the question of the feasibility and the desirability of a ‘cyberspace liberum,’ taking into account various attempts to gain control over parts of cyberspace for instance, by means of a so-called indirect extraterritorial effect. I conclude with the question of whether we can sustain cyberspace as a passage and as a global commons, considering its non-modern spatiality and keeping in mind how it engages with the landscape of territorial jurisdiction while often evading that jurisdiction’s core of mutually exclusive boundaries.

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