Assertions of extraterritorial jurisdiction have become increasingly frequent in the 21st century. Although a useful response to transnational crime, such assertions are often highly politicised and used by states to further unilateral foreign policy objectives. Further, some assertions of extraterritoriality undermine the rule of law and do not provide adequate procedural fairness. While principles such as comity and reasonableness may assist in protecting the rights of states, they do not adequately protect the rights of individuals. Therefore, this article argues that extraterritoriality should be treaty-based rather than unilateral, and domestic constitutional guarantees must apply equally to extraterritorial assertions of jurisdiction and territorial assertions. Further, principles to guide exercises of prosecutorial discretion in relation to an assertion of extraterritoriality need to be developed and made available in the form of a model law.
CONTENTS I Introduction II What is Extraterritorial Jurisdiction? III What are the Rules? A The Territorial Principle B The Nationality Principle 1 Active Nationality 2 Passive Nationality C The Universality Principle D The Protective Principle E The 'Effects' Principle IV Categories of Extraterritorial Criminal Jurisdiction A Treaty-Based Assertions B Ad Hoc Assertions C Reactive Assertions 1 People Smuggling in the Asia-Pacific D Generic Assertions E Uncontentious Prosecutions F Politically Motivated Prosecutions 1 Julian Moti 2 Hadi Ahmadi G Alternative or Reactive Prosecutions V Concluding Thoughts on Extraterritoriality and the Future of Criminal Law
In a speech at Princeton University, Justice Michael Kirby discussed judicial reluctance to enforce assertions of extraterritorial jurisdiction (1) and in so doing, observed that: 'the natural question is asked: Why my court? Why not theirs?' (2) The question points to the crossroads at which international law and domestic law meet: extraterritoriality. Assertions of extraterritorial jurisdiction are becoming increasingly frequent in the 21st century. Many states claim authority to project law beyond their own territorial borders (3) and, as Alejandro Chehtman observes: 'extraterritoriality is deeply entrenched in the modern practice of legal punishment'. (4) The extent to which states can assert extraterritorial criminal jurisdiction is a pivotal issue, which sits at the 'very heart of public international law'. (5)
A fundamental feature of extraterritorial jurisdiction is its transnational character. According to Diane Orentlicher, transnational law is law made by more than one state, and typically with the involvement of non-state actors. (6) It is also constituted, at least in part, by domestic law. Transnational crime and, therefore, transnational law, comprises elements of both domestic and international law, 'dissolving traditional dichotomies between the two'. (7) Therefore, the issues relating to extraterritorial criminal jurisdiction are linked with issues relating to transnational law more generally. Although, as Rain Liivoja observes, jurisdiction is an omnibus term that 'comes with baggage', (8) for the present the term is taken to describe the 'normative authority ... of a state' (9) or, as Vaughan Lowe observes, 'the limits of the legal competence of a State ... to make, apply, and enforce rules of conduct upon persons'. (10) Jurisdiction is of two types: territorial and extraterritorial. Put simply, jurisdiction is extraterritorial when asserted by a nation state over conduct occurring outside its borders. (11)
Both conceptually and in practice, assertions of extraterritorial jurisdiction are controversial, particularly when there are competing claims. For example, at the time of writing, India and Italy are disputing their competing …