The U.S. executive branch has long declined to recognize any country’s sovereignty over Jerusalem, insisting that the matter be worked out through negotiations between Israel and the Palestinians. The U.S. Congress, by contrast, has tended to support Israeli sovereignty over the city. In 2002, Congress enacted the Foreign Relations Authorization Act for Fiscal Year 2003, Section 214(d) of which provides that, “[f]or purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary [of State] shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” Both the Bush Administration and the Obama Administration declined to comply with this statutory directive. In Zivotofsky v. Kerry (Zivotofsky II), the Supreme Court sided with the executive branch, holding that Section 214(d) unconstitutionally interferes with the exclusive authority of the President to recognize foreign sovereigns.

Perhaps the most striking aspect of the Supreme Court’s decision in Zivotofsky v. Kerry (Zivotofsky II), was the open disagreement between Justice Kennedy and Chief Justice Roberts. What Justice Kennedy’s majority opinion, holding that the President has exclusive power to recognize states and governments and that Congress cannot constitutionally impinge on that power by requiring the President to list Israel in the passports of U.S. citizens born in Jerusalem, means for future foreign relations law cases is something of a puzzle. Solving it requires understanding the two competing visions at the case’s center and the fluctuating relationship between the two Justices who hold them.

Zivotofsky v. Kerry (Zivotofsky II) is a case about the constitutional distribution of power. The narrow question is whether Congress or the President has the power to determine whether a U.S. citizen born in Jerusalem can have “Israel” listed as his country of birth on his passport when the President does not formally recognize Jerusalem as part of Israel. As for the broader question—well, the case is packed with broader questions. Does the President have the exclusive constitutional authority to undertake the international legal act of recognition? Does the President have further exclusive constitutional authority to control the content of executive-branch communications with foreign nations? What powers does Congress have in foreign affairs? And are these justiciable issues for the federal courts to resolve?

These have been heady times for those interested in foreign relations law. The last twenty years have seen the field transformed. In the 1970s and 1980s, Vietnam had triggered significant attention on constitutional war powers, but that interest was more political than scholarly. Other foreign relations law issues were debated only at the margins. The Restatement (Third) supplied a largely unchallenged conventional wisdom in the area, even if some of its main points were more aspirational than descriptive. The courts had long been missing in action; though they had been active in the first century or so of the Republic on international law and foreign relations law issues, probably the most important Supreme Court ruling in the area from the second half of the twentieth-century merely served to confirm the judicial timidity. On many of the most important issues of foreign relations, sparse judicial precedents (such as they existed) had no more than oracular application to contemporary questions. Other actors nonetheless managed to achieve constitutional equilibria with little help from the courts or scholars. The second half of the twentieth-century was characterized by a remarkable level of constitutional stability regarding the allocation of foreign relations powers.

If we stipulate that the Foreign Relations Authorization Act of 2002 presented a genuine constitutional conflict between the President and Congress, reasonable minds can differ about the outcome in Zivotofsky v. Kerry (Zivotofsky II). The Court’s answer to the specific question presented is actually the least interesting thing about the decision—indeed, the majority avers its insignificance so often that a casual reader might be forgiven for wondering why certiorari was granted in the first place.

When the Supreme Court held that the executive branch has exclusive authority to recognize foreign sovereigns in the Jerusalem passport case, Zivotofsky v. Kerry (Zivotofsky II), Jack Goldsmith hailed the decision as a “vindication” of presidential signing statements and executive power. Indeed, in the context of the debate over the treatment of the terror suspects, the New York Times had called such signing statements the “constitutionally ludicrous” work of an overreaching, “imperial presidency.”

In Zivotofsky v. Kerry, the Supreme Court addressed the constitutionality of a 2002 law, Section 214(d) of the Foreign Relations Authorization Act for Fiscal Year 2003, which required consular officials to mark the word “Israel” as the birthplace of U.S. citizens who were born in Jerusalem if they requested that designation. The U.S. State Department refused to comply, pursuant to a policy of neutrality by the executive branch of the U.S. government concerning sovereignty over the much-contested city. The parents of a boy born in Jerusalem sued in federal court to see the law enforced. In its decision, the court found that Section 214(d) was an unconstitutional usurpation by Congress of the President’s exclusive authority to recognize foreign governments. The policy of official U.S. neutrality in regard to sovereignty over Jerusalem was upheld.

At first blush, the recent judgment of the U.S. Supreme Court in Zivotofsky v Kerry (Zivotofsky II) reads as a strikingly American affair concerning the enduring force of the separation of powers under a written Constitution. Finding that the President has the exclusive power to recognize foreign states and their territory, the Court holds that a statute of Congress encroaches upon this power and declares it unconstitutional. The reasoning of both the Court and the minority justices is largely a narrative of U.S. Constitutional history. So one might ask: does this decision really have anything to say of significance outside the U.S. context about the scope of the executive function in foreign relations?

Over the last two decades, the scholarly study of transnational networks has—with select exceptions—been characterized by two features.

The first is an approach to transnational networks as a relatively singular phenomenon. Networks have largely been studied as a broadly encompassing choice of institutional design—with emphasis on the common characteristics that distinguish them from other design choices, rather than those that distinguish them from one another.

Three Pathways to Global Standards broadens our understanding of structures that undergird international cooperation. Stavros Gadinis argues that different kinds of lawmaking networks propagate differently. Private networks depend on market success, in the sense that the demand for their products rests on competition in the private sector. Regulators succeed when they cooperate with true peers. States use power to work their will. I have some second-order criticisms of the article, offered in the spirit of respectful engagement with good scholarship. These reservations, however, do not detract from a view that Gadinis has identified significant issues in international relations and has proposed useful theses about them as well as good strategies for their validation.

Open the website of the Financial Action Task Force (or FATF) and find your way to the “FATF Presidency” page. Up until the end of June 2015, you would have encountered a headshot of a dapper fellow with smiling eyes and a pink bowtie: Roger Wilkins OA, President of FATF between July 2014 and June 2015. A one time “mandarin” of the public service in Australia (former Secretary of the federal Attorney-General’s Department in that country), Mr. Wilkins seems an apt embodiment of those qualities that Stavros Gadinis would have us see in the FATF, as a “ministry executives” network. It seems entirely plausible to cast Wilkins as a vehicle of such networks’ “key motivation”—to pursue “broad societal goals.” From his record, he seems well suited to the role of guardian of “states’ interests” in a “secure environment,” deft at deploying his “longstanding connections” and “power relations” in order to “strike deals” and, where necessary, unleash “sanctions’ firepower.” In short, Mr. Wilkins seems to “fit neatly within the three types—private, regulator, ministry” around which Stavros Gadinis’ thought-provoking article revolves.

Eighty years ago, in 1935, a major step was taken in international law; the Harvard Research Draft Convention on Jurisdiction with Respect to Crime (“Harvard Draft”) was published in the American Journal of International Law. The influence of the Harvard Draft has been nothing but phenomenal and must surely have exceeded the drafters’ wildest ambitions. Indeed, it is fair to say that the structure put forward in the Harvard Draft has represented public international law’s approach to jurisdiction ever since.

What follows is a private international lawyer’s response to the thought-provoking ideas put forward by Professor Svantesson on international jurisdiction from a criminal law perspective. This stance may in itself seem (and certainly feels!) paradoxical, since much contemporary academic effort (my own included) has been directed towards a rejection of the public/private distinction in international law. This rejection has been championed both as a normative matter, because so much would be gained from reaching ‘beyond the schism” to overcome the personality split from which the discipline has suffered for over a century, as well as a descriptive matter, since multiple issues, debates, myths and concepts straddle the divide, even if they give rise to specific disciplinary understandings on either side. Both of these observations apply to jurisdiction in all the forms mentioned by Professor Svantesson. Moreover, the need for an intradisciplinary conversation is particularly acute in respect of international limits on criminal jurisdiction, which, as Professor Svantesson’s paper seems to demonstrate, fall somewhere in-between the public and the private models (perhaps seen as logically public, but considered private in France!).

Dan Svantesson is quickly establishing himself as a leading voice in the field or jurisdiction. Coming to this field from Internet and data protection law, he is surely well placed to criticize the current legal framework of international jurisdiction in light of technological evolution, which has made territoriality lose its salience as the cornerstone of jurisdiction. I myself have recently been characterized as one of the border guards of territoriality, on the basis of my earlier monograph on Jurisdiction in International Law. Accordingly, the informed reader might believe that I will severely criticize as iconoclastic such a proposal as Svantesson’s namely, doing away with territoriality as the very linchpin of jurisdiction. As it happens, however, I largely concur with Svantesson’s ideas, at least to the extent they apply to cross-border transactions via the Internet. In this contribution, I argue that the reality of a de-territorialized Internet necessitates jurisdictional rethinking, but that this rethinking in fact heavily relies on previous scholarship, predating the Internet era. The advent of the current era, however, has lent particular urgency to those earlier proposals.

Dan Svantesson has introduced an important proposal to reformulate the way we allocate jurisdiction in the international community. Rather than asking whether a proposed assertion of jurisdiction falls into one of the canonical principles identified in the Harvard Research Draft Convention on Jurisdiction with Respect to Crime of 1935, Svantesson proposes to subject claims of jurisdiction to three “core” principles: (1) whether there is a substantial connection between the matter and the State seeking to exercise jurisdiction; (2) whether the State seeking to exercise jurisdiction has a legitimate interest in the matter; and (3) whether the claim of jurisdiction is reasonable given the balance between the state’s interests and other interests that might be asserted. He sees the first two of these as being implicit in the Harvard Draft paradigm, and the third a helpful addition to resolve conflicts in an increasingly interdependent world.