EXTRATERRITORIALITY
The terms ‘ extraterritoriality ’ and ‘ extraterritorial jurisdiction’ refer to the competence of a state to make, apply and enforce rules of conduct in respect of persons, property or events beyond its territory. Such competence may be exercised by way of prescription, adjudication or enforcement. Prescriptive jurisdiction refers to a State’s authority to lay down legal norms. Adjudicative jurisdiction refers to a State’s authority to decide competing claims. Enforcement jurisdiction refers to a State’s authority to ensure compliance with its laws. As will be seen below, these distinctions are important because some methods of exercising extraterritorial jurisdiction of States are more likely to conflict with the competence of other States and therefore more likely to raise questions as to their compatibility with international law.
In the absence of a universally accepted definition, extraterritoriality is an elusive concept that may include a wide variety of practices. Depending on the definition chosen it may encompass, for example, the adoption and adjudication of anti-trust legislation, the regulation of the export of toxic waste, the bringing to justice of terrorists and drug-traffickers, and the implementation of economics actions. The wide variety of matters covered by the concept makes it difficult to draw general conclusions about its status under international law.
The Principles of Extraterritorial Jurisdiction
In the customary international law scheme of jurisdiction, the territoriality principle serves as the basic principle of jurisdiction. Exceptionally, however, national laws may be given extraterritorial application, provided that these laws could be justified by one of the recognized principles of extraterritorial jurisdiction under public international law: the active personality principle, the passive personality principle, the protective principle, or the universality principle. It will be shown how continental European and common law countries exercise, to various extents,extraterritorial jurisdiction. While the active personality and the protective principles are generally deemed uncontroversial, the same cannot be said of the passive personality and the universality principles. Notably, the universality principle has gained a remarkable but contested ascendancy recently
1. The Active Personality Principle
The ‘active nationality principle’ refers to the (criminal) jurisdiction a State may exercise in respect of its own nationals abroad, including not only natural persons but also companies, ships and aircraft that have its nationality.
2. The Passive Personality Principle
The ‘passive personality principle’ refers to the (criminal) jurisdiction a State may exercise in respect of conduct abroad which injures its own nationals. This basis for jurisdiction has long been considered controversial.
3. The Protective Principle
The ‘protective principle’ refers to the (criminal) jurisdiction a State may exercise in respect of persons, property or events abroad that may constitute a threat to its essential interests, including acts against national security, such as coups d’état, terrorist acts, counterfeiting currency and forging passports. Although the validity of this principle is not contested it provides a rather uncertain basis for the exercise of extraterritorial jurisdiction because the conditions under which it may be relied upon are illdefined.
4. The Universality Principle
The universality principle refers to the (criminal) jurisdiction a State may or is required to exercise in respect of certain serious crimes irrespective of the location of the crime and irrespective of the nationality of the perpetrator or the victim. The universality principle is applicable only to certain crimes under international law that have been made subject to universal jurisdiction either by a multilateral treaty or under customary international law, such as genocide, war crimes, crimes against humanity and. Unlike the protective principle the interests protected are not those of the prosecuting State but those of the international community as a whole. Perhaps for this reason the universality principle long remained a theoretical concept only.
References:
1. Extraterritoriality, Menno T. Kamminga
2. The Principles of Extraterritorial Jurisdiction from Jurisdiction in International Law (2nd Edition)
