Extraterritorial jurisdiction

Extraterritorial jurisdiction (ETJ) is the legal ability of a government to exercise authority beyond its normal boundaries.

See also: Extraterritoriality
"ETJ" redirects here. For the defunct airline, see East Air.

Any authority can claim ETJ over any external territory they wish. However, for the claim to be effective in the external territory (except by the exercise of force), it must be agreed either with the legal authority in the external territory, or with a legal authority that covers both territories. When unqualified, ETJ usually refers to such an agreed jurisdiction, or it will be called something like "claimed ETJ".

The phrase may also refer to a country's laws extending beyond its boundaries in the sense that they may authorise the courts of that country to enforce their jurisdiction against parties appearing before them in with respect to acts they allegedly engaged in outside that country. This does not depend on the co-operation of other countries, since the affected people are within the relevant country (or at least, in a case involving a person being tried in absentia, the case is being heard by a court of that country). For example, many countries have laws which give their criminal courts jurisdiction to try prosecutions for piracy, sexual offences against children, computer crimes and/or terrorism committed outside their national boundaries. Sometimes such laws only apply to nationals of that country, and sometimes they may apply to anyone.

Terminology

Some confusion has arisen to the meaning of extraterritorial jurisdiction. In it's widely used application the term refers to where criminal acts were committed outside the sovereign territory of a prosecuting State. A possible ambiguity has been noted by Cedric Ryngaert that a State asserting jurisdiction over crimes committed in other jurisdictions would still be prosecuted in the State's own territorial courts.[1]

Cases of exercised jurisdiction

Diplomatic missions

Diplomatic immunity of foreign embassies and consulates in host countries is governed by the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations.

Military forces

Status of forces agreements and visiting forces agreements are in effect in many countries that allow visiting forces to exercise jurisdiction over members of their forces that are stationed in the host country.

Criminal law
See also: Universal jurisdiction, Criminal jurisdiction, and International criminal law

Criminal jurisdiction can be of an extraterritorial nature where:

Criminal codes in certain countries assert jurisdiction over crimes committed outside the country:

  • in France, the Code pénal asserts general jurisdiction over crimes by, or against, the country's citizens, no matter where they may have occurred; this is also the case with regard to those who became French citizens after the act. Double criminality is required except in the cases of felonies (crimes) which carry custodial sentences of ten years or more.[2]
  • in Japan, the Penal Code specifies certain cases and applicable lists of crimes over which jurisdiction will be asserted.[3]

Many countries have implemented laws which allow their nationals to be prosecuted by their courts for crimes such as war crimes and genocide even when the crime is committed extraterritorially. In addition, the Rome Statute of the International Criminal Court has been incorporated into domestic law in many countries to provide for the International Criminal Court to exercise jurisdiction within their borders.

Sanctions against foreign countries

Economic sanctions against other countries may be instituted under either domestic law or under the authority of the United Nations Security Council, and their severity can include measures against foreign persons operating outside the country in question.

In 2017, German Chancellor Angela Merkel and European Union President Jean-Claude Juncker criticized the draft of new U.S. sanctions against Russia targeting the EU–Russia energy projects.[4][5] France’s foreign ministry described the new U.S. sanctions as illegal under international law due to their extra-territorial reach.[6]

Competition law
See also: Competition law, United States antitrust law, and European Union competition law

Extraterritorial jurisdiction plays a significant role in regulation of transnational anti-competitive practices. In the U.S., extraterritorial impacts in this field first arose from Standard Oil Co. of New Jersey v. United States,[7] where Imperial Oil in Canada was ordered to be divested from Standard Oil. Current practice dates from United States v. Alcoa,[8] where the effects doctrine[9] was introduced, allowing for jurisdiction over foreign offenders and foreign conduct, so long as the economic effects of the anticompetitive conduct are experienced on the domestic market.[10] The effects doctrine has been gradually developed in the U.S. and then in various forms accepted in other jurisdictions. In the EU it is known as the implementation test.[11]

Extraterritorial jurisdiction in the area of antitrust faces various limitations, such as the problem of accessing foreign-based evidence,[12] as well as the difficulties of challenged anticompetitive conduct arising from foreign state involvement.[13]

Application in specific countries

Commonwealth of Nations

The ability of parliaments of Commonwealth countries to legislate extraterritorially was confirmed by s. 3 of the Statute of Westminster 1931.[14]

In Australia, extraterritorial jurisdiction of the state parliaments was authorized by s.2 of the Australia Act 1986.[15]

Canada

The Criminal Code asserts jurisdiction over the following offences outside Canada:[16]

Hong Kong

Article 38 of the Hong Kong national security law, passed in Jun 2020, asserts that the law applies to all persons - regardless of nationality - both inside and outside Hong Kong.[17]

Crimes covered under the national security law include:

  • advocating, planning, or supporting secession or changes in Hong Kong or the People's Republic of China sovereignty.
  • subverting the People's Republic of China government and system, including related participation, organizing, planning, and financially supporting these activities
  • substantially interfering or obstructing the People's Republic of China and Hong Kong government functions
  • acts of terrorism, defined as including damaging transportation equipment, causing traffic obstructions, or otherwise substantially interfering with the public's health and safety
  • colluding with foreign forces to harm national security, defined as including causing substantial obstruction to the People's Republic of China and Hong Kong government policies, controlling elections, seeking foreign sanctions, or inciting hate against the Chinese and Hong Kong governments

Whether this assertion has legal merit remains to be seen.

Ireland
Main article: Extraterritorial jurisdiction in Irish law

United Kingdom

Under Section 72 of the Sexual Offences Act 2003, British citizens can be prosecuted for sexual offences committed against children abroad. Section 72 was used to convict paedophile Richard Huckle on 71 counts of serious sexual offences against children in Malaysia.[18] Huckle was sentenced to 22 life sentences. While no official tally is kept, seven people are believed to have been convicted under Section 72.[19]

The Female Genital Mutilation Act 2003 asserted extraterritorial jurisdiction to close the loophole whereby girls could be taken outside the UK to undergo FGM procedures.

The Nuclear Explosions (Prohibition and Inspections) Act 1998 in Section 2[20] prohibits United Kingdom nationals, Scottish partnerships or bodies incorporated under the law of any part of the United Kingdom from knowingly causing a nuclear explosion in the United Kingdom "or elsewhere".

Municipal and state law

In the U.S., many states have laws or even constitutional provisions which permit cities to make certain decisions about the land beyond the town's incorporated limits.

  • Examples of states which allow cities to claim ETJ with respect to zoning or other matters, either generally or prior to annexation, are:

Federal law

The U.S. Criminal Code asserts the following items to fall within the special maritime and territorial jurisdiction of the United States, much of which is extraterritorial in nature:[26]

  1. The high seas and any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular state, including any vessels owned by US persons that are travelling on them[27]
  2. Any US vessel travelling on the Great Lakes, connecting waters or the Saint Lawrence River (where that river forms part of the Canada–United States border)
  3. Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof
  4. Any island claimed under the Guano Islands Act
  5. Any US aircraft flying over waters in the same manner as US vessels
  6. Any US spacecraft when in flight
  7. Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States[28]
  8. Any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States
  9. Offenses committed by or against a national of the United States in diplomatic missions, consulates, military and other missions, together with related residences, outside the US
  10. International Parental Kidnapping Crime Act

In order to deal with the issue of private military contractors and private security contractors being used by U.S. Government agencies overseas, the Military Extraterritorial Jurisdiction Act[29] was passed by Congress to subject them to a similar manner of jurisdiction.

Certain federal property has the status of federal enclave, restricting the application of state laws,[30] but that has been partially rectified by the Assimilative Crimes Act.[31] Similarly, state jurisdiction is restricted on Native American tribal lands.

Generally, the U.S. founding fathers and early courts believed that American laws could not have jurisdiction over sovereign countries. In a 1909 Supreme Court case, Justice Oliver Wendel Holmes introduced what came to be known as the "presumption against extraterritoriality," making explicit this judicial preference that U.S. laws not be applied to other countries. American thought about extraterritoriality has changed over the years, however. For example, the Alien Tort Statute of 1789 allows foreign citizens in the United States to bring cases before federal courts against foreign defendants for violations of the "law of nations" in foreign countries. Although this statute was ignored for many years, U.S. courts since the 1980s have interpreted it to allow foreigners to seek justice in cases of human-rights violations in foreign lands, such as in Sosa v. Alvarez-Machain.[32] In Morrison v. National Australia Bank, 2010, the Supreme Court held that in interpreting a statute, the "presumption against extraterritoriality" is absolute unless the text of the statute explicitly says otherwise.[33]

Economic law

Economic sanctions with extraterritorial impact have been instituted under:

Unlike most nations, the United States also attempts extraterritorial application of U.S. personal tax laws. The Foreign Account Tax Compliance Act is an extension of this concept, which focuses on enforcement.

See also

References
  1. Cormier, Monique (2020). The Jurisdiction of the International Criminal Court Over Nationals of Non-States Parties. p. 63.
  2. "Code pénal, art. 113-6 à 113-12" (in French). Retrieved 2012-08-02.
  3. "Penal Code, ss. 2-6". Archived from the original on 2015-11-03. Retrieved 2012-08-03.
  4. "Germany's Angela Merkel slams planned US sanctions on Russia". Deutsche Welle. 16 June 2017.
  5. Europe 'stands ready to act' if US sanctions on Russia affect its oil and gas supplies The Independent, 26 July 2017.
  6. "France says U.S. sanctions on Iran, Russia look illegal". Reuters. July 26, 2017.
  7. The Standard Oil Company of New Jersey, et al. v. The United States, 221 U.S. 1; 31 S. Ct. 502; 55 L. Ed. 619; 1911 U.S. LEXIS 1725
  8. United States v. Aluminium Company of America (Alcoa) 148 F.2d 416 (2d Cir. 1945)
  9. A. Parrish, 'The Effects Test: Extraterritoriality's Fifth Business' (2008) 61 Vand. L. Rev. 1455
  10. JP Griffin, Extraterritoriality in U.S. and EU Antitrust Enforcement (1999) 67 Antitrust L.J. 159
  11. D Geradin, M Reysen, and D Henry, Extraterritoriality, Comity and Cooperation in EC Competition Law (2008)
  12. B Sweeney, 'Combating Foreign Anti-competitive Conduct: What Role for Extraterritorialism?' (2007) 8 Melbourne Journal of International Law 35
  13. M Martyniszyn, Avoidance Techniques: State Related Defences in International Antitrust Cases (2011)
  14. "s.3, Statute of Westminster 1931". Retrieved 2012-08-01.
  15. "s.2, Australia Act 1986". Retrieved 2012-08-01.
  16. "Criminal Code, RSC 1985, c C-46, s 7". Retrieved 2012-08-03.
  17. "Hong Kong National Security Law" (PDF). Retrieved 2020-07-01.
  18. Evans, Martin (2016-06-01). "Britain's 'worst paedophile' Richard Huckle who targeted poverty-stricken children faces life in prison after admitting scores of offences". The Telegraph. ISSN 0307-1235. Retrieved 2018-09-06.
  19. "Sky News - First For Breaking News From The UK And Around The World". Sky News. Retrieved 2018-09-06.
  20. https://www.legislation.gov.uk/ukpga/1998/7/section/2
  21. "Alaska Statutes - Section 29.35.020.: Extraterritorial jurisdiction". FindLaw. Retrieved 2012-08-03.
  22. "Planning and Zoning FAQs". City of Fort Smith, Arkansas. Archived from the original on 2011-11-04. Retrieved 2012-08-03.
  23. "Nebraska Revised Statute 13-327". State of Nebraska. Retrieved 2020-03-31.
  24. "Incorporation, Annexation and Extra-Territorial Jurisdiction: A Double Standard?" (PDF). Cedar Grove Institute for Sustainable Communities. Retrieved 2012-08-03.
  25. "Extra-Territorial Jurisdiction (ETJ)". City of Fort Worth. Retrieved 2012-08-03.
  26. 18 U.S.C. § 7 (subject to the provisions of any treaty or international agreement)
  27. as clarified under s. 901, Pub.L. 104-132–110, 1317 Stat. (volume): “The Congress declares that all the territorial sea of the United States, as defined by Presidential Proclamation 5928 of December 27, 1988, for purposes of Federal criminal jurisdiction is part of the United States, subject to its sovereignty, and is within the special maritime and territorial jurisdiction of the United States for the purposes of title 18, United States Code.”
  28. This element was added in response to the case of United States v. Escamilla, a murder case on an iceberg in international waters.
  29. 18 U.S.C. § 3261
  30. 18 U.S.C. §7(3). See United States Department of Justice Criminal Resource Manual § 1630
  31. 18 U.S.C. § 13
  32. Cabranes, Jose (21 September 2015). "Withholding Judgment: Why U.S. Courts Shouldn't Make Foreign Policy". Foreign Affairs. Foreign Policy. Retrieved 3 December 2015.
  33. Morrison v. National Australia Bank syllabus
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