The Extraterritorial Scope of the Right to Punish

Abstract

This paper provides a philosophical critique of the principles that govern extraterritorial punishment under international law. It advocates an interest-based theory of punishment that accounts for states’ right to punish offences committed on their territory or against their sovereignty, security or important governmental functions. Yet, it criticizes the states’ well-established right to punish crimes committed extraterritorially on grounds of the nationality of the offender or that of the victim. Indeed, it shows that the arguments on the basis of which these jurisdictional bases are commonly defended either beg the fundamental question they are meant to answer or are simply committed to much broader rules than those currently in force. The last section of this paper examines whether competing justifications for legal punishment based on other grounds have more promise in terms of being able to better explain how the international law currently regulates extraterritorial punishment. It suggests that even refined consequentialist and deontological theories ultimately do not fare as well as the argument advocated here in accounting for certain core intuitions regarding the practice of legal punishment.