Accountability in Extraterritoriality: Principles, Means and Ends

Abstract

States are increasingly asserting jurisdiction over criminal offences that occur extraterritorially. To some extent, this is a response to transnational criminal activity. The assertion of jurisdiction by States outside their territory, however, has been a source of continuing controversy and legal uncertainty. This is because the principles of jurisdiction under international law do not adequately resolve competing claims to jurisdiction and are primarily concerned with the relationship between States and not as between the State and the individual. In that context, this thesis considers principles of jurisdiction and mechanisms by which to achieve jurisdictional restraint under international law. In so doing, the means by which assertions of extraterritorial criminal jurisdiction are regulated in Australia, India and the United States are assessed. A chosen conception of the rule of law is used to provide the criteria by which to measure such regulation. The criteria drawn from the chosen conception of the rule of law is that it requires: 1) that the law must be both readily known and available, and certain and clear; 2) that the law should be applied to all people equally, and operate uniformly in circumstances which are not materially different; and 3) that there must be some capacity for judicial review of executive action. This thesis measures the regulation of extraterritorial jurisdiction by Australia, India and the United States against these three criteria. In so doing, the relationship between municipal law and international law in each jurisdiction is considered, as is the potential utility of the ‗abuse of rights‘ doctrine as a regulator of extraterritorial criminal jurisdiction. The thesis then presents three tiers of conclusions. The first tier relates to the regulation of extraterritorial jurisdiction by Australia, India and United States, respectively. The second tier is concerned with conclusions as to the regulation of extraterritorial jurisdiction in common-law jurisdictions. The third tier identifies contributions this thesis makes to the broader dialogue on extraterritorial jurisdiction. Ultimately, this thesis argues that exercises of extraterritorial criminal jurisdiction can be useful in seeking to achieve some ends, such as the regulation of transnational crimes. There must, however, be some accountability in extraterritoriality. Principles of jurisdiction under both international and municipal law are generally permissive. Therefore, the means by which jurisdiction is exercised must be better regulated and domestic courts need tools with which to so. This thesis suggests that the abuse of rights doctrine may be a useful tool in such regulation and if so, could result in the emergence of a specialist abuse of jurisdictional rights doctrine.