29 that is jurisdiction is the right of a state to

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29 That is, jurisdiction is the right of a state to control physical assets and the activities of individuals, while “property” is the right of individuals to control physical assets. The analogy becomes more evident when we recognize that both of these rights (jurisdiction and property) involve legally-constructed packages of control over things of value. The fundamental unit of analysis in both cases is the transaction: the transaction in property and the transaction in prescriptive jurisdiction. It is worth recognizing at the outset that an initial institution-building transaction creates property rights, while subsequent transactions transfer property rights. Similarly, in prescriptive jurisdiction, an initial transaction creates the initial allocation of jurisdiction, while subsequent transactions transfer it. States act to maximize state preferences. 30 States will seek jurisdiction over matters as necessary to allow them to achieve their preferences. This is analogous to individuals seeking ownership of property that will allow them to achieve their preferences. In a primitive context, states encounter one another and may find it appropriate to engage in a particular immediate transaction. This transaction is similar to a “spot” market transaction in domestic markets. The international legal system is engaged at two moments. First, the international legal system is engaged to assign initial 27 In the well-known Wood Pulp decision, the European Court of Justice held that this was conduct within the European Communities. See Joined Cases 89, 104, 114, 116, 117 &125-29/85, A. Åhlstrom Oaskeyhtio v. Commission, 1988 E.C.R. 5193, 4 Common Mkt. Rep. (CCH) ¶ 14,491 (1988); James J. Friedberg, The Convergence of Law in an Era of Political Integration: The Wood Pulp Case and the Alcoa Effects Doctrine , 52 U. P ITT . L. R EV . 289 (1991). 28 See Joel P. Trachtman, Cyberspace, Sovereignty, Jurisdiction and Modernism , 5 I NDIANA J. G LOBAL L EG . S TUDIES 561 (1998). 29 See Joel P. Trachtman, Economic Analysis of Prescriptive Jurisdiction and Choice of Law , 42 V A . J. I NT L L. 1 (2001). 30 In the context of this paper, we may elide the public choice critique of this statement.
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Global Cyberterrorism, Jurisdiction, and International Organization 18 jurisdiction rights to the actors. Second, when these exchanges take place over time, when they are not “spot” transactions but longer-term transactions, requiring the security of treaty or other law, the international legal system is engaged to facilitate these transactions, through the law of treaty and other international law. While the international legal system contains some rules for allocation of prescriptive jurisdiction, these rules are unclear and incomplete. They are often unclear insofar as a rule, for example, of territoriality does not distinguish between territorial conduct and territorial effects: does not distinguish between what is conduct and what are effects. Furthermore, conduct may occur in multiple territories, as may effects. More importantly perhaps, rules for allocation of prescriptive jurisdiction are incomplete
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  • Spring '12
  • Kushal Kanwar
  • global cyberterrorism

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