Centre 2019: Extraterritoriality (Insights)

So, from where do we start?

To grasp the concept of extraterritoriality, one must understand its underlying jurisdictional principles. For the purpose of this blog, I would like to focus on the territoriality principle, under which a state has jurisdiction over acts or omissions committed within its territory.

Already in the Lotus case, the PCIJ held that jurisdiction is essentially territorial and a state "failing the existence of a permissive rule to the contrary […] may not exercise its power in any form in the territory of another state." [1] On the other side of the coin, the court drew a distinction between prescriptive and enforcement  jurisdiction that its earlier statement does not mean "that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law" [2]

Therefore, a state can apply its laws, to matters beyond its territory, as long as there is no rule prohibiting such action. [3] Furthermore, one distinguishes between objective and subjective territoriality, where the former concerns offences completed on the territory but initiated abroad (effects doctrine), and the latter describes the opposite scenario. [4] Thus, it is also clear that the territoriality principle may itself create a basis for “extraterritorial” jurisdiction – that is, the power of a state to prescribe law in regard to conduct that occurred in territories beyond its borders.

As exceptions to the territoriality principle, other bases of extraterritorial jurisdiction may also be permissible. [5]

1. Active personality principle (jurisdiction over nationals of a state, regardless of where they are located);
2. Passive personality principle, also known as victim jurisdiction (asserting jurisdiction over a foreign person, where a national is affected);
3. Protective principles, where a vital interest of the state is at stake, such as its sovereignty or its right to political independence [6];
4. Universality principle (jurisdiction is established without having a direct link to the country because it is asserted in regard to instances where states share a ‘common interest’ in prosecuting serious international crimes [7]).

It is evident that the exercise of extraterritorial jurisdiction relates to other principles of public international law, such as sovereignty, conflict-of-laws, comity, double-criminality, or matters of foreign relations. [8] Therefore, exercising extraterritorial jurisdiction, is not necessarily welcomed by states and seen as an infringement of their territorial integrity.

However sometimes, and especially in a world that is becoming increasingly globalised, it may be inevitable, and even desirable, that a state exercises extraterritorial jurisdiction in certain situations.

Also, establishing extraterritorial jurisdiction under some principles is considered more controversial than via others. In particular, the passive personality principle has been criticised [9]  for giving rise to jurisdiction too soon. Likewise, the universality principle has been criticised for its ‘aggressive’ way of establishing jurisdiction, and the role of politics which play a role in prosecution.

I had the pleasure to attend a seminar, held by Professor Ryngaert and moderated by Professor Buxbaum, on the role of criminal law as a tool to hold corporations accountable for their extraterritorial human rights abuses. Professor Ryngaert explained, from various perspectives, the states’ reluctance to use criminal law to prosecute corporations extraterritorially. The obstacles were mainly of political nature as well as procedural, such as the need of a public prosecutor willing to devote significant public resources to such a case. The conclusion was that despite obstacles to use the criminal law, the issue involves both substantive and jurisdictional matters. Thus, it is possible to attribute liability to a company under the so called ‘open-ended duty of care’, a flexible approach, under which the corporation’s due diligence measures are examined and potentially violations of their codes of conduct to establish jurisdiction under either of the aforementioned jurisdictional principles. Of course, it is not that easy, and the distinction between tort law and criminal law might seem to be blurred, yet, there is scholarly support of the possibilities to use criminal law in holding corporations accountable for extraterritorial conduct.

When I read deeper into the topics of the Centre for Studies and Research, other questions arose, such as:

How do states apply these jurisdictional concepts to non- territorial areas such as cyberspace? And how do they reconcile sovereignty and territoriality as traditional principles of public international law in a borderless realm? To what extent can a state or regional organisation such as the EU impose its own perception of data protection standards in another country or subject other countries on a wide scale to its own data protection laws?

Other issues and questions concern the allocation of power between states and the interplay between more dominant and less dominant states in regard to the extraterritoriality of laws.

Many other current issues, questions and trends will be analysed and answered by the participants of the 2019 Centre for Studies and Research, and I am glad to have contributed, even though only to a small extent, to the facilitation of their work.

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[1] PCIJ, SS Lotus, PCIJ Reports, Series A, No. 10 (1927), 18-19.

[2] PCIJ, SS Lotus, PCIJ Reports, Series A, No. 10 (1927), 18-19.

[3] Ryngaert, jurisdiction in international law, Oxford University Press, 2008, p. 32.

[4] Ryngaert, p.76.

[5] Oxford Public International Law, Extraterritoriality – Menno T. Kamminga, Max Plank of Public International Law.

[6] Ryngaert, p. 96.

[7] Ryngaert, p. 106.

[8] Ryngaert, p. 11.

[9] Already in 1964 – Professor Mann pointed out that the  Official Draft of the Foreign Relations Law of the United States of May 1962 (Draft Restatement) recognizes four bases of jurisdiction (territory, nationality, protection of certain state interests and protection of certain universal interests) but denies the passive personality principle (at sec. 30, subsec. 2):

'A state does not have jurisdiction to prescribe rules of law attaching legal consequences to conduct of an alien outside its territory merely on the ground that the conduct affects one of its nationals.'