Exercise Of Extraterritorial Jurisdiction Research Articles

The Question of Pirate Trials in States Without a Crime of Piracy

Abstract Many States in the world such as China have no specific domestic laws providing for the crime of piracy, leading to the question whether these States have the competence to punish piracy as required by international law. This paper argues that the lack of a crime of piracy within a domestic legal system should not become an insurmountable obstacle for States to prosecute pirates. Prosecution of pirates without a crime of piracy is feasible in a State that has domestic criminal laws that deal with illicit activities similar to piracy by indicting perpetrators with other criminal offences. While it would be an ideal solution for that State to establish a specific crime of piracy in its domestic legal system, it is important to consider the difficulties in setting the definition of piracy and the degree of punishment appropriately, and realize that the major deficiencies in punishing pirates under other existing domestic crimes can be basically addressed within an existing domestic legal system. The main purpose of universal jurisdiction over piracy to punish criminals to the maximum extent and the changing situation of piracy also require States to always be ready to deal with piracy. Therefore, prosecuting pirates as another crime is a realistic compromise. Furthermore, for a State without a crime of piracy, it is more urgent for it to build up legal grounds for exercising universal jurisdiction over piracy and relevant procedural provisions on the exercise of extraterritorial jurisdiction over international crimes at sea.

European Court of Human Rights: review of the Grand Chamber judgment of 21 January 2021 in the case of Georgia v. Russia (II) (application no. 38263/08)

In the judgment in Georgia v. Russia (application no. 38263/08), the European Court of Human Rights examined the existence of effective control over the territory where the armed conflict between the Russian Federation and Georgia took place. Applying the concept formulated in the case Bankovich and Others v. Belgium (application no. 522207/99), the Grand Chamber determined that Russia had not exercised jurisdiction in the affected territory during the period of active hostilities. However, after the ceasefire, the Chamber found an exercise of extraterritorial jurisdiction by the Russian Federation. In light of the evidence’s full weight, the Chamber found an administrative practice for which the Russian Federation was responsible. As the European Court found, the administrative practice in question contravened several articles of the Convention and its Protocols in terms of the killing of civilians, torching and looting of houses in Georgian villages in South Ossetia and the “buffer zone” (violation of Articles 2, 3 and 8 of the Convention, Article 1 of Protocol No. 1 of the Convention); Conditions of detention of Georgian citizens and the humiliating acts to which they were exposed (violation of Article 5 of the Convention); torture of Georgian prisoners of war detained by South Ossetian forces (violation of Article 3 of the Convention); and the inability of Georgian nationals to return to their respective homes (violation of Article 2 of Protocol No. 4 of the Convention). The Chamber also found a violation of Article 2 of the Convention regarding the Russian Federation’s failure to effectively investigate the alleged crimes committed in the affected territory. The argument of a violation of Article 2 of Protocol No. 1 of the Convention was rejected.

Extraterritorial Jurisdiction and sovereignty. The Characterization of Foreign Predicate Offenses for Prosecution of Derivate Offenses (as Money Laundering) and the Consideration of Extraterritorial Conduct as Part of Territorial Offenses

The question of any limits that a state's extraterritorial jurisdiction faces has not yet been fully addressed by international courts and tribunals. The aspect appears somewhat entrapped between the expansion of international criminal law - and the obligation to crack down on international crimes - and a creeping restoration in the form of a reaffirmation of the sovereignty and sovereign equality of states. Furthermore, the extraterritorial exercise of jurisdiction is frequently associated with the practice of lawfare, a neologism that combines the words law and warfare and identifies the use (and abuse) of the law to achieve a political end or, in a more restricted sense , a military end. Two collateral aspects of extraterritorial jurisdiction have recently been examined in decisions of international courts and tribunals. The International Tribunal of the Law of the Sea (ITLOS) in the decision in the case of the MV Norstar (Panama v. Italy) provided an interpretation of the freedom of navigation which prohibits the exercise of the so-called prescriptive jurisdiction (that is, the form of jurisdiction that is alongside the executive jurisdiction and that of ruling on a specific issue and concerns the possibility of extending the scope of its laws and rules) by coastal States with respect to conduct (or parts of conduct) that take place in deep sea. The International Court of Justice (ICJ) in the decision on Preliminary Objections in the Immunities and criminal proceedings (Equatorial Guinea v France) - pending on May 31, 2020 - has incidentally dealt with the 2000 Palermo Convention on transnational organized - a aspect of the exercise of extraterritorial jurisdiction in an indirect form: the characterization of entirely foreign conduct as a predicate crime in order to judge an accessory such as money laundering. The paper analyzes the two decisions in the light of the positions of the parties and their respective decisions.

Data and the Elasticity of Sovereignty

Traditionally, the world map and territorially bounded spaces have dominated ways in which we imagine how states govern, make laws, and exercise their authority. Under this conception, underlined by traditional international law principles of territorial sovereignty, each state would have exclusive authority to govern and make laws over everything concerning the land within its borders. Yet developments like the proliferation of data flows, which are based on divisible, mobile, and interconnected components of data, are not territorially bounded. This presents a challenge to traditional bases for territorial sovereignty and jurisdiction under international law, which some scholars claim is exceptional due to certain characteristics of data. The question as to how states exercise jurisdiction over, or spatially locate, a protean thing such as data, is one which deserves further exploration. By comparing the approaches of China, EU, and the US, this paper explores how laws and regulations in this area are having extraterritorial effects, thus moving away from a strict territorial approach, yet at the same time, are “reterritorializing” by linking their laws on data privacy and data transfers to data infrastructure, data subjects, or data controllers. This shows that states tend to repurpose their territorial sovereignty as they see fit, but this repurposing is not something which is unique to the data governance context. States have used a variety of justifications historically for the extraterritorial exercise of jurisdiction, as well as found creative ways to reterritorialize things, people, events, and processes that were not strictly territorially bounded within their borders. Thus, rather than treat regulations on data privacy and data transfers as an exceptional exercise of territorial sovereignty beyond borders, we might consider this an exemplification of yet another creative reimagining of the elasticity of sovereignty. These exercises in reimagining are significant when we consider their distributional effects and how they allocate decision-making power over governance of data. The elasticity of sovereignty means that authority, governance, and decision-making are ultimately functions of power.

Unredeemed Lands and Extraterritorial Jurisdiction: The Case of Serbia and Kosovo

When a state imposes its laws outside of its actual lands, it raises a question of extraterritorial jurisdiction. Serbia claims sovereignty over Kosovo, but does not control it; Kosovo has its own laws, and has been an independent state since 2008. While Serbia’s ability to enforce its laws is restricted, there is no limit to its power to make laws and adjudicate on matters pertaining to Kosovo. This exercise of extraterritorial jurisdiction has created practical uncertainties for the citizens of both countries, and may undermine peace and stability in the region and the European Union.

Port State Jurisdiction Relating to the Safety of Shipping and Pollution from Ships—What Degree of Extra-territoriality?

The aim of this article is to consider the extent to which the exercise by a port State of jurisdiction over foreign ships in relation to safety and the prevention of pollution is extra-territorial in nature. This aim is pursued by addressing two main issues. The first is the question of whether a port State may prescribe and enforce measures relating to the construction, design, equipment and manning of ships (including measures that go beyond international (International Maritime Organization) standards) in respect of foreign ships calling at its ports; and if so, whether that involves an element of extra-territorial jurisdiction. The second issue is the question of how far a port State may exercise jurisdiction over the conduct of foreign ships relating to shipping safety and the prevention of pollution before such ships enter its ports, and whether that is an exercise of extra-territorial jurisdiction.

Territoriality in EU (Taxation) Law: A Sacred Principle, or DDpasss?

Since the Peace Treaties of Osnabruck and Munster, of May and October 1648 respectively, the Westphalian notion that each State is sovereign over its own territory, with interaction between sovereign states to be determined by law, has been fundamental to the international legal order. Thus, the UN is, as its Charter proclaims, based on the principle of “sovereign equality” of all its Member States (Article 2(1), UN Charter). The concepts of sovereignty, jurisdiction and territoriality are closely linked. One of the key features of the (traditional) concept of sovereignty is that it entails the right of the State to prescribe the laws in force, and to enforce those laws, on its own territory. As Lord Macmillan famously expressed it in the UK House of Lords some 75 years ago, “It is an essential attribute of the sovereignty of this realm, as of all sovereign independent States, that it should possess jurisdiction over all persons and things within its territorial limits and in all causes civil and criminal arising within these limits.” This positive concept of territoriality (power to make laws for one’s territory) has the logical negative corollary as expressed in the excerpt from the Lotus above, i.e., in principle and in the absence of a permissive rule to the contrary, a State ought not to exercise jurisdiction in another State’s territory. Exercise of extra-territorial jurisdiction has, therefore, typically been treated with suspicion under international law doctrine.At the same time, however, States and regions have increasingly been faced with global problems which do not respect traditional State boundaries, and for which effective regulation may require (legal) solutions that transcend the State geographies we have become used to. Daniel Bethlehem has rather provocatively termed this the “end of geography”: denoting the array of trans-border, geography-defying challenges which will, he argues, force us to move beyond our traditional notions of Westphalian States and international law, and with them our traditional concepts of sovereignty, jurisdiction and territoriality. These challenges include the globalisation of the economic system, trade and financial flows; the globalisation of security risks; as well as global warming and other environmental problems of a global scale.Viewed in this light, it is perhaps unsurprising that an increasing number of States and entities that might normally (claim to) respect international law are being criticised for alleged extraterritorial exercise of jurisdiction. Among them is the EU, although it is by no means the only culprit in this regard. This contribution considers the relevance of territoriality as a restricting factor on the legislative jurisdiction of EU Member States, and the EU itself, with particular regard to EU tax law. Section 2 considers jurisdictional bases and conceptions of territoriality in international law. Section 3 switches to an EU law perspective, considering the status of customary international law in EU law. Section 4 considers the CJEU’s approach to territoriality as a justification for Member State action. Section 5 considers the CJEU’s approach to territoriality as a limitation on EU action, focusing on three examples of alleged extraterritorial exercise of jurisdiction by the EU in the past - in the fields of competition law, environmental law, data protection law, and financial markets law - and considers the legal and political responses to such exercise. Section 6 considers the case of the proposed Financial Transaction Tax (FTT), and the objections linked to territoriality concerns. Section 7 concludes with a discussion.

The Implications of the Kiobel v. Royal Dutch Petroleum Case for the Exercise of Extraterritorial Jurisdiction

In the last few decades the Alien Tort Statute has proven a useful tool in the struggle to impose legal obligations on transnational corporations conducting their activities in developing countries. However, its usefulness has recently been significantly reduced, as its application to conduct occurring outside of the United States has been seriously challenged by the Supreme Court decision in the Kiobel case. This decision was founded on the basis of the presumption against extraterritoriality; a U.S. law provision which entails that domestic legislation does not normally apply outside of the United States' territory. This article argues that the principles of international law, rather than the presumption against extraterritoriality, would have constituted better guidance for assessing the legitimacy of the exercise of extraterritorial jurisdiction. It contends that based on these principles, the exercise of extraterritorial civil jurisdiction is legitimate when the alleged perpetrator is an American national. In addition, even where both parties are foreign, universal civil jurisdiction can be legitimately exercised when the alleged perpetrator is present on U.S. territory, provided it is limited to the same category of particularly heinous crimes of universal concern as those giving rise to universal criminal jurisdiction.

Towards an Extraterritorial Application of the Chinese Anti-Monopoly Law that Avoids Trade Conflicts

This article deals with an important, but yet unexplored issue, being to what extent the anti-monopoly law of China of 2008 can be applied in an extraterritorial manner. The paper reviews first the extraterritorial application of anti-trust law in the United States and in EU competition law and then provides a critical policy analysis on extraterritoriality. Attention is specifically paid to the position of China since article 2 of the ALM, so we argue, explicitly provides for the possibility of extraterritoriality. The first decisions also show that China is apparently on its way towards an extraterritorial application of its anti-monopoly law in practice. We point at the many conflicts to which such an extraterritorial application of competition law has given rise in the EU and in the US (and more particularly between them) and hence we argue that it may be wise to draw lessons from those conflicts in order to prevent a similar scenario for China. We argue that for example joint actions between anti-trust authorities and mutual information exchange (for example on the basis of a bilateral agreement on the extraterritorial exercise of jurisdiction) may lead to avoiding potential conflicts that may arise from an extraterritorial application of the Chinese anti-monopoly law.

From Florence to London via Moscow and New Delhi: How and Why Arbitral Ideas Migrate

In olden times, ideas were often spread by individual pilgrims travelling on foot or by mule across vast inhospitable distances. In recent times, the spread of ideas, good and bad, has become paradoxically both easier and more difficult for international arbitration. This article examines the spread of a bad idea migrating from London to India and Pakistan (on the exercise of extra-territorial jurisdiction over foreign awards), culminating in the recent decision of the Indian Supreme Court in Bahrat Aluminium (2012); and of a good idea migrating from Moscow eventually to London (on the broad principle of the separability of an arbitration clause), culminating in Section 7 of the English Arbitration Act 1996.

Amicus Curiae Brief of Australian International Law Scholars in Kiobel v. Royal Dutch Petroleum

This brief seeks to highlight error in certain positions staked out by the Commonwealth of Australia (Australia) in relation to its jurisdictional opposition to the U.S. Alien Tort Statute, 28 U.S.C. §1350 (ATS). The essence of the Australian position is based on its claimed “opposition to overly broad assertions of any extraterritorial civil jurisdiction arising out of alien’s claims against foreign defendants for foreign activities that have allegedly caused foreign injury.” This argument cannot withstand scrutiny and the argument by amici here proceeds along two lines. First, the exercise of ATS jurisdiction in connection with gross human rights violations in the sovereign territory of other states is clearly permissible under international law. In order to demonstrate otherwise, it is incumbent on Australia to prove the existence of an international rule binding on the U.S. that prohibits such exercise. This Australia cannot do. Second, Australia’s own projection of extraterritorial jurisdiction extends to persons, things, and events in the sovereign territory of other countries in a way akin to ATS jurisdiction. Like ATS jurisdiction, Australia’s exercise of extraterritorial jurisdiction is permissible under international law. However, it clearly undermines Australia’s argument against the ATS.

Extraterritorial Exercise of Jurisdiction for Environmental Protection: Addressing Fairness Concerns

AbstractTeck v. Pakootas revisits the infamous Trail smelter, which made history in public international law. This more recent case should be set to make history as well, due to the manner in which the issue of extraterritorial exercise of jurisdiction was handled. The substantive result reached in the courts seems fair, reasonable, and appropriate: a notorious polluter, Teck Cominco Metals Inc., is called to account by the United States Environmental Protection Agency and required to study the feasibility of cleaning up a site it contaminated by dumping effluents in a transboundary river over the course of several decades. Yet, both courts that examined this case on the merits failed to understand the ramifications of this extension of the Environmental Protection Agency's jurisdiction across the Canada–United States border. This article begins with a doctrinal analysis of jurisdictional rules in private and public international law, and then proceeds to evaluate those rules with the help of insights from scholarship on global administrative law and international public authority.

Judicial Review of Arbitral Awards in International Arbitration – A Case for an Efficient System of Judicial Review

To strike a balance between the two important considerations of finality and fairness, a degree of judicial scrutiny of arbitral awards seems to be necessary. However, excessive judicial intervention and exercise of extraterritorial jurisdiction over arbitral process and actions for annulment of arbitral awards may undermine international arbitration as a viable and effective alternative dispute settlement mechanism. This article argues that an efficient and harmonized regime of judicial review which could exclusively be exercised by the competent courts at the seat of arbitration will streamline and expedite the enforcement process and thereby increase the efficiency and reliability of international arbitration. Increased international efforts aimed at harmonizing the law and practice with respect to the scope of judicial review and the exclusivity of jurisdiction of the courts of the seat will pave the way for such a harmonized regime of international arbitration which may, in turn, obviate any need for ignoring, through the much criticized practice of enforcement of annulled awards, a judicial decision lawfully rendered to set an arbitral award aside.

Cross Border Terrorism: Jurisdictional and Other Issues

Terrorism in no longer confined to a territory or to a few isolated activities, rather it has surpassed all barriers and gained an international description. To check the menace and protect the innocent population various regional and global conventions have been ratified. However the roots of terrorism seems to be all the more penetrating into the heart of the civilization and is emerging to be the greatest threat to peaceful co-existence. The criminal record sharing model developed by the EU-US, principle of universal jurisdiction and the exercise of extraterritorial jurisdiction has in the recent past been thrown open for debates by policy makers. The international community is trying its level best to strike the chord of harmony between the various elements to maintain peace & prosperity. Perhaps it’s the blend of all the counter measures coupled with identification and prevention of causes that lead to terrorism, is the need of the hour.

Exercise of Extraterritorial Jurisdiction by CCI Under Section 32 of Competition Act and Process for its Enforcement

This paper is aimed to analyse the extraterritorial jurisdiction of Competition Commission of India set forth in Section 32 of the Competition Act, 2002. As per the legislative framework, the duty of the competition authority is to “eliminate practices having adverse effect on competition, promote and sustain competition, protect the interests of consumers and ensure freedom of trade carried on by other participants, in markets in India”. This mandate is very wide and in order to meet the ends of this mandate the Commission need to play a dynamic and strong role as a market regulator. The Power structure of the Commission also gives a reference of a dynamic and strong regulator. Section 32 and Proviso of Section 18, gives certain extraordinary power to the Commission to perform its duties in efficient manner. This paper starts with the introduction in which the researcher has given the primary introduction of the project. Chapter 2, describes the concept of extraterritorial jurisdiction and practice of extraterritorial jurisdiction by the competition authorities in two major jurisdiction i.e. US and UK. Chapter 3 is set to analyse the extraterritorial power vested in Indian Competition Commission. This chapter gives an analysis of Section 32 of the Competition Act, 2002 as amended in 2007. An analysis has also been made of some other Sections of the Act, which helps section 32 to show its full effect like Section 39, section 36, 27, 31 etc. Chapter 5 and 6 proposes the procedure for the effective enforcement of extraterritorial jurisdiction by the Commission. It would be pertinent to say at this juncture that the Commission has not notified any special regulation for the enforcement of Section 32 of the Act and very recently in May, 2009 has notified the Competition Commission of India (General) Regulations 2009, 2 of 2009, so the process for the enforcement of extraterritorial jurisdiction shall be according to this regulation and the Code of Civil Procedure, 1908 wherever applicable. In Chapter 7, the researcher has tried to find out legal provisions for the enforcement and recognition foreign countries in some major economic superpowers of the world. In pursuant to the extraterritorial jurisdiction of the Competition of India this Chapter is very important as India has bilateral agreement with only eleven countries for the reciprocal enforcement of the judgments. Chapter 8 deals with the international co-operation and co-ordination for the smoother exercise of powers by the various Competition and antitrust authorities of the world. At the end of the project the researcher has given his suggestion and conclusion.

Transboundary Environmental Disputes along the Canada-US Frontier: Revisiting the Efficacy of Applying the Rules of State Responsibility

SummaryThe efficacy of the rules of state responsibility for transboundary environmental harm can be questioned in light of recent disputes between Canada and the United States. Stemming from the “no-harm” principle, the obligation to prevent transboundary damage represents an integral part of international environmental law. It is reflected in a wide body of international treaties, mirroring state practice. It also forms the basis for international cooperation on transboundary and global environmental issues. This article examines how the rules of state responsibility regarding transboundary environmental damage are applied by two states that share a long contiguous border and a legacy of amicable relations. Upon examination, the limits of such rules are increasingly becoming evident in light of some recent disputes. Attempts to overlook the rules of state responsibility, paralleled with the exercise of extraterritorial jurisdiction, have undermined the status of the rules of state responsibility. Moreover, these phenomena highlight the difficulty of applying loosely defined international legal principles to practical situations where vested interests beyond those of the states involved are at play.

Title III of the Helms-Burton Act Is Consistent with International Law

The Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, otherwise known as the Helms-Burton Act, became law on March 12, 1996. Title III of the legislation creates a federal cause of action, on behalf of U.S. citizens whose property was confiscated without compensation by Cuba, against those who “traffic” in that property. Several governments—notably Canada, Mexico and those of the European Union, whose corporate citizens are the principal “traffickers”—have denounced the legislation as an exercise of extraterritorial jurisdiction that violates customary international law. These governments apparently see nothing wrong with permitting—even encouraging—their nationals to use and profit from property that rightfully belongs to others. The United States not only commands the moral high ground on this issue; it also has the better of the legal argument.

Compagnie Européenne des Pétroles SA v. Sensor Nederland BV

98Jurisdiction — Extraterritorial — Legislation — Foreign companies owned or controlled by United States companies — Whether United States President has power to enforce export embargo against companies outside the United States — Exceptions under international law to prohibition on extraterritorial exercise of jurisdiction — Scope of exceptions — Nationality principle — Protective principle — National interest — Effects doctrine — Conflict of laws rules — Whether requiring application of United States law by municipal courts in forum StateEconomics, trade and finance — Export embargo — Whether enforceable against companies outside legislating State — The law of the Netherlands

The Bay of Campeche Oil Spill: Obtaining Jurisdiction over Petroleos Mexicanos under the Foreign Sovereign Immunities Act of 1976

A massive oil spill in the Gulf of Mexico during the summer of 1979 affords the opportunity to consider application of the Foreign Sovereign Immunities Act of 1976 (FSIA) as a basis for US interests injured by transboundary pollution to obtain jurisdiction over a foreign stateowned polluter in this country's courts. The author first outlines the development of sovereign-immunity law in the United States prior to the enactment of the FSIA and describes the operation and effect of the 1976 legislation. He then considers the application of the FSIA to the facts of the suits filed against Pemex; he concludes that the plaintiffs should be able to obtain jurisdiction over Pemex in a US court. The availability of jurisdiction under the FSIA to injured parties in future transboundary pollution actions is in doubt, however, because of a reference in the legislative history of the FSIA to the District of Columbia's long-arm statute and the history of judicial caution in cases involving international disputes. Courts may interpret the reference to the District of Columbia statute to mean that a pollution injury alone will not be enough to warrant assumption of personal jurisdiction. Requiring the plaintiffs in the Pemex case and injuredmore » parties in future cases to demonstrate some additional contacts by a foreign defendant aside from the pollution injury itself would limit use of the FSIA as a basis for obtaining jurisdiction over the foreign polluter. Nevertheless, this Comment recommends that because of ambiguity in the portion of the legislative history that concerns the scope of personal jurisdiction under the FSIA and the considerable foreign policy implications of the exercise of extraterritorial jurisdiction, US courts should adopt this more-restrictive interpretation of the FSIA. 238 references.« less