Impact principle
The effect principle is a disputed principle in international law and state practice, according to which a state is entitled to regulate behavior outside its territory if this behavior has effects domestically.
Derivation
International law, which regulates the relations between states and equals under international law, recognizes the right of every state to regulate the situation on its own territory (principle of territoriality ). However, the exercise of sovereign power is not only permitted if the subject matter of the regulation is located in the territory of the state concerned. In other words, the national territory and the territorial boundaries of sovereign power are not necessarily identical. Under certain conditions, customary international law allows foreign matters to be regulated. Where the limit to the legitimate exercise of sovereignty lies in detail is determined primarily from the rules governing the establishment of jurisdiction of states. In addition, there are special rules that must be observed when exercising this responsibility.
Connecting principles
The principle that a state may not regulate a process outside its borders without a sufficient domestic relationship is recognized in state practice. According to the general opinion, a meaningful connection is necessary in order to regulate a matter extraterritorial. In this respect, customary international law recognizes a number of connecting principles.
One of these principles is the impact principle, which has been widely criticized for its wide scope. It states that it is sufficient if the effects ( effects ) of a behavior that will regulate the acting State to enter its territory. The subject to be regulated is located abroad, and only the effects that occur at home establish a relationship with the acting state.
restrictions
As a rule, states tend to interpret their area of responsibility too broadly to be able to take over a matter in case of doubt and if necessary. For example, in the area of failed states , the judiciary can take action in cases that otherwise could not be taken over, but which otherwise each functioning country would regulate itself.
The declaration of one's own responsibility alone does not, therefore, constitute effective responsibility. The state in which the matter takes place can refuse the jurisdiction of the former state if it wants to regulate it itself. Such an approach is particularly evident in the area of criminal law. Here it often happens that states argue about the punishment of an offender because, on the one hand, he is a citizen of one country, but on the other hand his act affects another country. While the first country wants to protect its citizens (especially in the area of human rights ), the other is possibly out to punish the perpetrator as harshly as possible.
In order to extend the jurisdiction of a state to a situation outside of its territory, the Permanent International Court of Justice decided in the Lotus decision that international law allows it extensive freedom, which is only restricted in some cases by prohibitive rules. In the literature of international law, it is argued that the states are free to regulate an extraterritorial situation where such a prohibition cannot be proven.
Examples
In German criminal law , a reference based on the effects of foreign behavior is established, for example, in Section 5 No. 7 StGB . According to this, German criminal law applies to acts committed abroad regardless of the law of the place of the crime , if these acts violate trade or business secrets of a company located in Germany or a company located there. The same applies to an affected company that has its headquarters abroad if it is dependent on a German company and forms a group with it.
Another area of application of the effect principle is in antitrust law . In the case of foreign mergers of companies and a merger agreement concluded abroad that also covered domestic subsidiaries, various competition authorities have assumed responsibility to regulate the entire merger due to the principle of effects.
See also
literature
- Luzius Wildhaber : International legal problems of multinational corporations. Heidelberg, Karlsruhe: Müller, Juristischer Verlag, 1978 ISBN 3-8114-0578-0
- Luzius Wildhaber : Interplay between inside and outside: Swiss national law, comparative law, international law. Basel, Frankfurt am Main: Helbing and Lichtenhahn, 1996 ISBN 3-7190-1456-8
Web links
- International Administrative Law: The Principle of Territoriality and Its Exceptions XIII. Meeting of the highest administrative courts of Germany, Austria, Switzerland and Liechtenstein from November 7th to 10th, 2002 in Vaduz. Country report of Switzerland.
Individual evidence
- ↑ Karsten Kramp, The Justification and Exercise of State Responsibility for the Prohibition of Transnational Mergers According to Applicable International Law, Diss. Duncker & Humblot, Berlin 1993
- ^ FA Mann, The Doctrine of Jurisdiction in International Law, Recueil des Cours, Volume 111, 1964 (I), p. 36 ff.
- ^ Permanent International Court of Justice . In: Publications de la Cour Permanente de Justice Internationale . CPJI, No.10, 1927, pp. 19 .
- ↑ Kramp,: The justification and exercise of state responsibility for the prohibition of transnational mergers according to applicable international law, Diss.Duncker & Humblot, Berlin 1993, page 32. Retrieved on October 4, 2018 .
- ↑ Kammergericht WuW / E OLG 3055f .; US v. Ciba Corp, 1970 Trade Cases (CCH) § 73, 269 (SDNY)
