Extraterritorial Jurisdiction and its Extent
By Bryan Wong —
International law precludes “the exercise of extraterritorial jurisdiction unless specifically permitted”. Some scholars argue that it is the prerogative of a state to reject intervention and uphold its independence in territorial jurisdiction. Conversely, the interconnectedness of countries warrants this intervention, and stubborn conformity to territoriality would be anachronistic.
I venture that countries have a right to enforce criminal laws of another country, given that such interference is circumscribed by clear jurisdictional nexus while maintaining protection of fundamental human rights.
To assess this, one must inquire whether exercising this right has deviated from the rule of law. A legal framework through which this can be determined is Lord Bingham’s eight principles , specifically principles one, three and five:
(Principle 1) Law must be accessible and as far as possible intelligible, clear, and predictable.
(Principle 3) The laws of the land apply equally to all, to the extent where objective differences justify differentiation
(Principle 5) The law affords adequate protection of fundamental human rights
Using this scaffold, two questions prevail: Can extraterritorial jurisdiction (1) override the principle of sovereignty, and if so (2) ensure fairness to the accused?
The Tenable Justifications of Extraterritorial Jurisdiction
The S.S. Lotus case held two key verdicts: (1) Restrictions upon the independence of states cannot be presumed; (2) States are left with a wide measure of discretion to promulgate laws outside their territory which it regards as best. Consequently, nations are afforded the liberty to try and punish violations outside their borders. Courts have limited interpretation of statutes when using the Clear Congressional Intent Test. Look towards the Alien Tort Statute which provides that “the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations”. Its application in Filartiga v. Pena-Irala (1980) sets precedent that torture perpetrated by a government official “violated customary international law, extending the jurisdiction of the US courts to tortious conduct committed abroad” .
Outlined in Harvard Law’s “Draft Convention on Jurisdiction with Respect to Crime” , there are three relevant bases for extraterritorial justice:
(1) The Principle of Nationality pertaining to the conduct by a nation’s own citizens
(2) The Principle of Universality targeting internationally recognised crimes against humanity
(3) The Principle of Passive personality highlighting the conduct against a nation’s citizens
On the principle of nationality and passive personality, extraterritorial jurisdiction rests on the citizenship of the accused and victim, respectively. National laws should reflect the self-determination of the people they look to govern. One will see a Lockean argument in that citizens have conditionally transferred some of their rights to the government to ensure better collective outcomes. Assertion is justified because individuals (1) received protection from the government, hence in return (2) owe an obligation of obeying the law. A similar argument professes in justifying the taxation of citizens abroad and fulfilling military service obligations. As demonstrated, social contract theory maintains regardless of location, and its terms should be enforced insofar as fair procedures and clarity of law is upheld. Consequently, governments do have an obligation to protect, as well as punish its own citizens beyond its borders.
One of the main goals of the criminal justice system is retribution, and the universality principle enables swift punishment. The Universality Principle is asserted when these grounds are fulfilled : (1) the existence of a specific base for universal jurisdiction, and (2) a sufficiently clear definition of the offence and its constitutive elements. Offences under this principle (Jus Cogens) are outlined as (a) genocide; (b) crimes against humanity; and (c) war crimes. They violate the basic dignity of all, defined as “the inalienable worth all people are born with regardless of status, race or belief”. All victims’ suffering matters equally in the eyes of the law. To this extent, a victim in one country is not morally less important than a victim in another. Through this, the universality principle embodies the idea that justice is owed equally to all. Since Jus Cogens are recognised globally, this fulfils Bingham’s First Principle in that such crimes are expected to be met with rigorous punishment.
However, this speedy retribution is limited when nations cannot compromise their stance. Given the globalisation of crimes, more countries would have competing claims to jurisdiction and prosecution. I refer to the ‘Lockerbie’ incident where a commercial PanAm flight was hijacked. While the victims’ nationalities were mostly Dutch, the two alleged perpetrators were Libyan nationals. The US also staked their claim given the airliner. This dispute for jurisdiction lasted over 20 years before negotiations agreed a trial to be held in the Netherlands in a court deemed to be Scottish. When nations are unrelenting in their challenge for the right to prosecute, it delays justice and closure for victims, another vital goal of the criminal justice system. It may also set an ugly precedent that stirs distrust and hesitance to cooperate between states.
The Principle of Territorial Jurisdiction: The Derivative of Sovereignty
The freedom for a country to rule independently in their socio-legal systems is well-enshrined by the UN Charter, specifically Article 2(4) prohibiting the threat or use of force and calls on all members to respect the territorial integrity, and political independence of other states. As declared in United States v. Bowman (1922) , international law is merely a supporting factor rather than a decisive one in deciding the overseas application of American law. Sovereignty is the entitlement for nations to refuse extraterritorial jurisdiction insofar as claimant states “fail to provide a permissive rule to the contrary, derived from international convention” .
One may refer to General Assembly Resolution 2131 to understand why detractors mount their stance. Specifically, violations of sovereignty are outlined in paragraphs five and six.
(Paragraph 5) Every state has an inalienable right to choose its political, economic, social, and cultural system without interference in any form by another state.
(Paragraph 6) All states shall respect the right of self determination to be freely expressed without any foreign pressure.
Critics believe that judicial interference contravenes Paragraph 5 of the Resolution for nations to impose their own laws on another nation’s soil, violating the sanctity of one’s jurisdiction. This is extremely problematic when nations have different constitutional obligations, proceedings, or punishment for an offence. Tying into Paragraph six, all countries should revere the procedures that each territory adopts to maintain equality amongst nations. Furthermore, such models that use social contract theory will limit the number of beneficiaries that can benefit from a government’s protection. Detractors will forward that the line is to be drawn at citizenship, and nations do not have a principle right to prosecute a non-citizen under any circumstance.
When determining whether extraterritorial jurisdiction can override the principle of territorial jurisdiction, one must use the reasonableness test to decide. Seeking a legal framework, I will introduce Section 403(2) of The Restatement (Fourth) as one. There are eight 8 factors which are to be considered in determining whether the assertion of prescriptive jurisdiction is unreasonable . These included (2) the nature of the activity, (3) the competing interests of states, and (4) the likelihood of conflict. Section 403(3) defines competing interests as one of sovereign compulsion, where one jurisdiction compels that particular action be taken while the other prohibits. Only when extraterritorial jurisdiction is deemed to be reasonable and fair can we expect other nations to relent and allow this intervention.
In Hartford Fire Ins. Co. V. California 1993 , the Supreme Court reexamined the question of extraterritorial reach of antitrust laws. The Foreign defendants argued that they were in compliance with English law when they carried out their anticompetitive conduct which violates US law. The District Court held that US law was not applicable when it was not the place of conduct but only the place of injury, dismissing the case on factor (3).
However, the Court of Appeals reversed this decision, with Justice Souter finding that English and US law were not contradicting each other, since English law did not mandate the defendants to do something that was prohibited by US law. This fails to meet the condition established in Section 403(3). By negating the significance of factor (3) and based on factors (2) and (4), the act was deemed to have substantial impact on US markets, and it was reasonable to expect the defendants to anticipate these effects.
To close, sovereignty is Prima facie dominant when courts are confronted with cases involving extraterritorial jurisdiction. However, using section 403(2), we are able to further discuss the reasonableness of the assertion of sovereignty. After all, no law can act in absolute. Hence, the principle of sovereignty in this discussion should not be seen as a foundational right, but merely another law that underpins and is underpinned by other statutes.
The Maintenance of Human Rights
When not cautiously monitored, assertions of extraterritorial jurisdiction can create unfair procedures for the accused. Notwithstanding criminality, the State still owes obligations to individuals accused of such an offence. Some constitutional guarantees are curtailed from applying to investigations and prosecutions of extraterritorial conduct. Case in point, in R v. R v. Klassen (2008), the Canadian Supreme Court ruled that the Charter of Rights and Freedoms are limited to Canadian territories, withholding extraterritorial application to search and seizures rights. This deprives individuals of the right on arrest or detention (1) to be informed promptly of the reasons therefor; and (2) to have the validity of the detention determined by habeas corpus . These rights ensure that courts are restrained in their reach, maintaining transparency in judicial procedure, protecting due process as established in Bingham’s Fifth Principle.
Additionally, the dearth of protection against double jeopardy in extraterritorial jurisdiction poses scepticism about its morality. Double jeopardy protection stems from the legal maxim that no man shall be twice vexed for the same cause. Since the resources of the state can only be applied once, this ensures both that prosecutions are “conducted as thoroughly as possible” and “individuals cannot be subjected to a punishment additional to a possible sentence” . Analysing the International Covenant on Civil and Political Rights Article 14(7) , “no one shall be tried and punished again for an offence for which he has already been convicted or acquitted in accordance with the law”. This suggests that the double jeopardy provision is exclusive to each state. Thus, individuals can face multiple prosecutions by different nations for the same crime, especially when not all party nations are satisfied with the outcome of trial. This undermines the court’s legitimacy when individuals are incessantly pilloried by courts, subjecting them to humiliation that repeated trials would indubitably cause.
Summarising, human rights must be protected at all costs, because for the moral worth of a government and extending, its sovereignty, to be legitimised, they must serve the interests of those they seek to govern.
Conclusion
In closing, the intersection between jurisdictions has become an inexorable reality. Radically, the application of extraterritorial jurisdiction cannot compromise the rights of the accused as well as the virtue of the judicial system. Absent of this restraint undergirds the distrust of the public on a behind-closed-doors government organ. It is incumbent of nations to exercise reasonableness in staking their claim over jurisdiction. Ultimately, the judiciary derives its legitimacy not from its sword of breadth, but from its shield of restraint.
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