Extraterritorial Jurisdiction Research Articles

Strength through Diversity? The Paradox of Extraterritoriality and the History of the Odd Ones Out

Abstract This contribution argues that the right of access to extraterritorial jurisdiction shaped privilege-based communities across national borders. It discusses extraterritoriality as a legal framework that enabled and shaped the building of communities of foreigners from many different backgrounds. Extraterritoriality – counterintuitively – amalgamated and strengthened a community through that very diversity. This was precisely why that community of foreigners – specified as the odd ones out – understood itself as a social unit across national boundaries, loosening and even contesting its affiliation to a specific nation and/or empire.

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.

EU Competition law and extraterritorial jurisdiction – a critical analysis of the ECJ's judgement in Intel

ABSTRACT The focus of this piece lies with extraterritorial jurisdiction in the context of the application of the EU competition provisions. Whereas the doctrine of effects has been established in the context of US antitrust law more than 50 years ago, it has not been until recently that the ECJ confirmed such an approach for the establishment of the jurisdiction of the EU competition provisions in its judgement in Intel. However, the latter decision has not been without criticism, as the ECJ put together different sets of abusive conduct and assessed Intel's behaviour in its entirety. For that reason, also conduct with an arguably very tenuous link to the EU/EEA, that is, behaviour between Intel in the US and Lenovo in China was considered in the Court's judgement. Hence, this article aims to critically analyse the ECJ's decision, also taking into account the first-instance ruling of the General Court as well as the AG opinion. It will conclude that considering other concepts developed in the context of the competition provisions, the ECJ's reasoning seems sound. Furthermore, the adoption of the qualified effects test seems also welcome in order to meet the challenges imposed by our global economy and digital markets.

Taming the Paper Tiger: Deterring Chinese Economic Cyber Espionage and Remediating Damage to U.S. Interests Caused by Such Attacks

The U.S. faces an increasingly complicated set of national security and economic threats. Chief among these are: (1) increasingly sophisticated and damaging cyber-attacks that threaten national security; harm government institutions, for-profit enterprises (including defense contractors), and institutions of higher learning; and undermine the country’s system of property rights; and (2) rising levels of national debt held by foreign competitors. China poses the greatest threat in both regards. China’s government carries out, organizes, and/or facilitates cyber-attacks to misappropriate intellectual property with serious consequences to the U.S.’s national security and economy. China also has acquired significant holdings in U.S. government issued debt instruments. Mounting U.S. government debt restricts annual federal government budgetary decisions, negatively affects the U.S.’s international standing as a borrower, and threatens national security by giving foreign debt holders, such as China, potential leverage in foreign relations negotiations. No policy prescription to date has achieved meaningful and lasting success in addressing these threats, and there are indications the threats are only worsening. The National Trade Secret Protection and Remedy Strategy (“NTSPS”) policy prescription proposed by this Article addresses the cyber attack and federal debt threats in a way that links and transforms them from vulnerabilities into leverage to protect the U.S.’s national security, system of property rights, and future economic well-being. Specifically, the U.S. government should pursue trade secret theft-related litigation and remedies against the Chinese government and its surrogates in U.S. federal courts. The proposed NTSPS would: (a) create a specific, limited government property interest in intellectual property developed under government defense contracts; (b) create extra-territorial jurisdiction for the U.S. government and personal jurisdiction over foreign nations that engage in trade secret misappropriation either directly, or indirectly through state-supported or enabled entities or persons; and (c) provide for ready availability of pre-judgment remedies, such as attachment and liens to secure the government’s remedy, and satisfaction of judgement through execution on U.S. debt held instruments held by the mis-appropriator — in this case, China. Successful implementation of the NTSPS would require amendments to several existing federal statutes and defense contracting regulations and procedures. Implementing the NTSPS strategy will allow the U.S. federal government to: (1) compensate itself and U.S.-based companies for the damages each has suffered as the result of Chinese-led or sponsored cyber-attacks; (2) deter future Chinese cyber-attacks by conveying a strong message that the U.S. will take meaningful action in response to said attacks; (3) slow the advancement of Chinese military technology by forcing China to internalize the significant research and development expenses incurred by the U.S. to develop the technological capabilities often targeted by cyber espionage initiatives; (4) significantly reduce U.S. debt and consequently the restrictions and burdens it places on the U.S. economy and national defense capability; and (5) pare down the financial leverage China holds over the U.S. in foreign relations.

Border crimes, extraterritorial jurisdiction, and the racialization of sovereignty in the Ethiopia–British Somaliland borderlands during the 1920s

AbstractThis article argues that the politics of extraterritorial jurisdiction in the 1920s reshaped relations between ethnicity and territorial sovereignty in Ethiopia's eastern borderlands. A 1925 criminal trial involving Gadabursi Somalis began as what Britons deemed a ‘tribal matter’ to be settled through customary means, but became a struggle for Ethiopia's regent, Ras Tafari, to assert Ethiopia's territorial authority and imperial sovereignty. British claims of extraterritorial jurisdiction over Somalis amidst 1920s global geopolitical shifts disrupted existing practices of governance in Ethiopia's eastern borderlands and created a dilemma for Ethiopian authorities. In order to uphold international obligations, Ethiopian officials effectively had to revoke their sovereignty over some Somalis indigenous to Ethiopia. Yet Britons’ practical application of extraterritoriality to Somalis was predicated on assumed racial differences between Somalis and highland Ethiopians (‘Abyssinians’). Thus, Ethiopia's recognition of British extraterritorial jurisdiction would lend legitimacy to claims exempting Somalis from Ethiopian sovereignty due to differences in identity. The case reveals how assertions about race, nationality and ‘tribal’ identity articulated to subordinate Ethiopian rule to British interests and, in the longer term, to delegitimize Ethiopian governance over Somalis.

“Do Not Do Abroad What You Would Not Do at Home?”: An Exploration of the Rationales for Extraterritorial Criminal Jurisdiction over a State’s Nationals

AbstractCompared to universal jurisdiction, active nationality jurisdiction remains one of the least understood and written about forms of extraterritorial criminal jurisdiction. This article seeks to offer a normative account of the exercise of criminal jurisdiction by states over their nationals for crimes committed abroad such as sexual offences against minors, bribery of foreign public officials, or medical “circumvention” tourism. It highlights all of the reasons that militate against such assertions of jurisdiction as a matter of policy and law. It goes on to argue that the assertion of criminal jurisdiction over nationals for crimes committed abroad must be understood beyond its permissibility under international law as a modality that manifests the interests of the state of nationality, the territorial (host) state on occasion, the relevant individuals, and, increasingly, the international community.

Assessment of Urban Geomorphological Heritage for Urban Geotourism Development in Khorramabad City, Iran

Inventory and assessment of urban geomorphological heritage as a fundamental necessity and prerequisite for urban geotourism development are the main purposes of this research. Accordingly, the present study has been carried out in Khorramabad City, Iran. This research has been conducted using inventory and quantitative assessment of urban geomorphological heritage through fieldwork and (Brilha Geoheritage 8 (2):119–134, 2016) method with modification for urban geomorphosites. The results showed that among the 32 geomorphosites inventoried in karstic, fluvial, tectonic, anthropogenic and specific geomorphosites categories, the Falak-ol-Aflak Castle Hill has the highest score in all three scientific, educational and geotourism criteria. The highest degradation risk due to urban development is in the Absharan Valley. The lowest scientific, educational and geotourism value is related to the Masur Hill, Robat River and Gilvaran Cave respectively and the lowest degradation risk is related to the Gilvaran Cave. The total value of the geomorphosites varies between scores of 28 and 94 in all criteria. In general, in all three criteria, most urban geomorphosites are of high value, indicating the high potential of Khorramabad City for urban geotourism development. Further, due to intensive human activities in the city proper and its extraterritorial jurisdiction, they often require special protection; hence, paying attention to the conservation status of these geomorphosites is essential for preserving their scientific, educational and geotourism values.

Counteracting Domestic Violence: New Experience from the UK

The author studies the experience of England and Wales on counteracting domestic violence. The article analyzes how the attitude of the society and the state to this phenomenon has changed, and, instead of being viewed as a commonplace event, it is now recognized as a serious gender violence crime and violation of human rights. Such recognition is based on the position of the UNO expressed in the Istanbul Convention of 2011; joining this Convention made it necessary for the British government to develop a new statute. This Act includes the legislative definition of domestic abuse (this term is an extension of the concept of «domestic violence» introduced at the government level), the introduction of the extraterritorial jurisdiction, more clearly defined methods of victim protection, a provision for a Domestic Abuse Commissioner, etc. The article outlines the path of the UK to the new legislative vision, starting with the development of inter-agency programs and pilot projects of victim assistance and ending with the adoption of legislative acts that criminalize different forms of domestic violence, including forced marriage, «honor» crimes and female genital mutilation. Special attention is paid to a new gender neutral crime - controlling behavior, whose introduction is viewed as unprecedented and controversial. Unlawful control is viewed as actions aimed at suppressing another person, their isolation from people close to them, and depriving them of means necessary for independence, resistance or escape. Coercion, in its turn, is an action or a model of behavior (attack, threat, humiliation, etc.) aimed at inflicting harm, at punishing or terrifying a victim. The author believes that studying British experience of developing inter-agency programs of victim support, including a program that provides information of the criminal past of an intimate partner, and the consistent criminalization of all forms of domestic abuse (even those not connected with physical violence) presents certain interest for Russian lawyers and researchers, and deserves their close attention.

A jurisprudential analysis of the concurrent criminal jurisdiction over cross-border telecom fraud crime

PurposeThe issue of concurrent jurisdiction over cross-border crimes has become common in a globalizing world, while the rigid compliance with territoriality and active personality jurisdiction has created a legal vacuum for cross-border crimes in many situations. The jurisdiction dispute between mainland China and Taiwan over cross-border telecom fraud crimes is a good example. In recent years, the Ministry of Public Security of the People’s Republic of China cracked down a series of cross-border telecom fraud crimes against mainland residents and extradited suspects to mainland China. Given a certain proportion of Taiwan residents in criminal gangs, the Taiwan side raised jurisdiction objections, arguing that mainland China had no right to exercise jurisdiction over Taiwanese criminals. The essence of the jurisdiction dispute between two sides is the concurrence of Taiwan’s right to exercise active personality jurisdiction and the mainland’s right to exercise passive personality jurisdiction. The purpose of this paper is to analyze the connotation of different jurisdiction principles (namely, territorial, active personality, protective and passive personality jurisdiction) and reinterpret their prioritization of applicability from a jurisprudential perspective, and thus, enhance the theoretical basis for resolving the issue of concurrent jurisdiction over cross-border crimes.Design/methodology/approachBy reviewing the historical trajectory of major jurisdiction principles since the 1920s, and studying the specificities of the case in this context, this paper argues that territorial jurisdiction and active personality jurisdiction have presumed priority but not an absolute priority for resolving the issue of concurrent jurisdiction. The applicability of protective and passive personality jurisdiction could precede the former provided the jurisdictions of territoriality or active personality are inadequate, incompetent or lack of motivation to combat crimes, which harm other jurisdictions.FindingsThe developmental trajectory and contemporary connotation of major jurisdiction principles suggests that the legitimacy of the mainland’s exercise of passive personality jurisdiction over Taiwan criminal suspects lies in the urgent need to recover mainland victims’ significant property loss, the incompetence of Taiwan in detecting and prosecuting telecom fraud crimes committed by Taiwanese residents and targeting mainland victims and that the mainland has guaranteed the Taiwan side’s right to be timely informed and fully participate in its exercise of criminal jurisdiction over crimes involving Taiwan suspects.Originality/valueCurrent literature on jurisdiction doctrines mainly uses a historical or descriptive approach to reveal the attitudes of different countries toward jurisdiction principles, which helps little in resolving the issue of concurrent jurisdiction over cross-border crimes in an era of globalization. This paper uses an interpretative approach, reinterprets the contemporary connotation of different jurisdiction principles and redefines the criteria for determining their prioritization in the context of the specificities of a case. It is expected to update the academic literature for resolving concurrent jurisdiction, fill the legal vacuum for combating cross-border crimes created by rigid compliance with territorial jurisdiction, and meanwhile relieve concerns about abuse of extraterritorial jurisdiction as it provides concrete standards for weighting the applicability of jurisdiction principles.

Extraterritorial Jurisdiction: From Theory to International Practices and the Case of Vietnam Law

Extraterritorial jurisdiction is a concept that has been studied and applied for a long time in the legal practice of a number of states. With the evolution of international law, the jurisdiction of each state is established not only on the basis of territorial factor, but also of other factors that represent certain relationship with the state, such as the nationality, the effect of the act on the nation and national sovereignty. These jurisdictions are extraterritorials. However, the grounds for establishing this extraterritorial jurisdiction arouse a lot of debate. The paper analyzes the relationships that make up extraterritorial jurisdiction in accordance with international law and relates to the practice of Vietnam law to clarify the changes of the legal system of Vietnam at present in establishing its jurisdiction over persons and things.

"With What Right Are They Sending a Consul": Unauthorized Consulship, U.S. Expansion, and the Transformation of the Spanish American Empire, 1795–1808

At the turn of the nineteenth century, the establishment of unauthorized U.S. consulates throughout the Spanish Empire transformed both the infrastructure of Spanish colonial rule and the diplomatic relationship between Spain and the Early Republic. In places such as New Orleans, Havana, and Santiago de Cuba, U.S. consuls exercised extraterritorial jurisdiction over national citizens without the authorization of Spanish imperial authorities, sparking intense diplomatic conflicts over the boundaries of national sovereignty. Invoking diplomatic reciprocity, Spanish colonial officials also made use of unauthorized consulates in Savannah, New Orleans, and Natchez in order to contain U.S. expansion, protect Spanish subjects and property, and police runaway slaves and Native Americans. Over the 1800s, these ad-hoc uses of unauthorized consulates challenged metropolitan designs and international diplomatic norms as they locked both U.S. state authorities and Spanish colonial governments in negotiations of state sovereignty, transnational migration, and reciprocity and created a new institutional framework of transnational governance in the Spanish Caribbean and the North American Gulf.

The Global Impact of Exercising Extraterritorial Jurisdiction Over Transnational Corporate Environmental Crimes in Extractive Industries

This article relates to contemporary topic, deals with subsoil use crimes and explores this as a subtype of environmental crimes committed by transnational corporations discussing the importance of choosing proper jurisdiction, and examines crimes in the field of subsoil use as a specific component of environmental crimes committed by transnational corporations involved in resource extraction and mining across the world. Their environmental harm, contribution to poverty and unfair utilization of resources is driven by greed and lure, and has long been heavily protected by legal jurisdictional cover-ups, which are now under scrutiny due to the globally evolving trend of exercising extraterritorial jurisdiction over certain torts committed by extractive industry operators. Appropriate criminological theories and studies of general and green criminology along with environmental justice are reviewed and reflected on. The author refers to unfair correlation of natural wealth and poverty, comes across the Brantinghamian definition of “crime” before turning to Sutherland’s conception of white-collar crime. The article also presents content analysis and case studies of the undergoing litigations, namely the case of Trafigura and Royal Dutch Shell.In concluding notes suggestions are offered for the future of environmental justice and the prevention of environmental crimes in extractive industries and mining.

Odgovornost države za kršenje ljudskih prava u slučaju prekogranične ekološke štete - novo shvatanje eksteritorijalnosti u primeni međunarodnih ugovora o ljudskim pravima?

The paper provides an in-depth analysis of the issue of extraterritorial application of human rights treaties in the specific context of transboundary environmental harm. The classic criteria for extraterritorial jurisdiction established through the landmark judgments of the European Court of Human Rights are revisited and compared with the extensive extraterritoriality threshold introduced by the Inter-American Court of Human Rights in its 2017 advisory opinion on environment and human rights. The author examines the features, requirements and limits of the new extraterritoriality threshold which is based on the effective control over intraterritorial activities that result in extraterritorial human rights' violations. The paper attempts to offer arguments for perceiving the new extraterritoriality threshold as a general standard of international human rights, as well as to examine whether it represents a (mis)interpretation of the duty to prevent transboundary environmental harm as a well-established rule of international environmental law. The author also discusses the prospects of expanding the application of the new jurisdictional threshold to other areas not necessarily linked to environmental degradation.

Preispitivanje doktrine nadležnosti države u međunarodnom krivičnom pravu

This article aims at analysing the main mechanisms available, for setting limits to the exercise of State Criminal Extraterritorial Jurisdiction, mainly as it applies to International Crimes in the absence of direct links between the conduct of the accused person and the State. Initially, jurisdiction is examined as a legal concept, for later to be approached within the delimitation of the State power to exercise its jurisdictional competence horizontally (among States), as it is not in the scope of this article the vertical exercise of State Jurisdiction (State & International Courts).

Jamaica Adopts a Post-GDPR Data Privacy Law

Jamaica's Data Protection Act 2020, is the fifteenth data privacy law in the Caribbean. Not yet in force, it provides for a transitional period of two years. The Jamaican Information Commissioner, once appointed, should be influential in the region. It is influenced strongly by the European Union’s General Data Protection Regulation (GDPR) of 2018, including in providing for extra-territorial jurisdiction, and in limiting data exports through the concept of ‘adequacy’. All data controllers must comply with eight numbered ‘Standards’, one of which includes compliance with the various ‘Rights of the Data Subjects’. The Act also imposes four types of higher obligations, above the ‘Standards’, on some controllers in relation to some processing. These include registration, controls on specified processing, data protection officers (DPOs) and data protection impact assessments (DPIAs). The Act’s enforcement is based on three types of notices by the Commissioner, which can then lead to offences, administrative penalties, or compensation. The terminology and procedures are somewhat unusual, but the enforcement mechanisms are substantial. This is a remarkably strong post-GDPR data privacy law. Of the nearly 20 features of the EU’s GDPR that are relevant to countries outside the EU, and are stronger than the 1995 Data Protection Directive, only a handful are missing from explicit inclusion in Jamaica’s law: data protection by design and default; demonstrable accountability of controllers; direct liability for processors; requirements to cooperate with other DPAs; and rights of public interest groups to take representative actions. The exemptions from the Act may prove to be unreasonably broad. It remains to be seen whether fines of up to 4% of corporate turnover will be genuinely dissuasive when administered by courts, and whether significant compensation awards will be made.

THE EXPANSION OF STATE AUTHORITY OVER THE NEIGHBOURING STATES THROUGH INFORMAL MIGRATION CONTROLS: THE CASE OF HUNGARY’S CONTROL OVER SERBIA

Our preliminary fieldwork shows that there is large scale agreement between the migration and border authorities of Hungary and Serbia on the names of asylum seekers before they are allowed into to the Hungarian transit zones and apply for international protection in Hungary. The list, proposed by the Serbian Commissariat for Refugees (SCR) and approved by the Hungarian border authorities, is communicated through the use of community leaders from the Serbian reception centre. Hungary’s motive behind keeping its cooperation with Serbia informal is to conceal the existence of cooperation between both states and to avoid legal challenges in the Court of Justice of the EU (CJEU) and the European Court of Human Rights (ECtHR). Therefore, the paper argues that the informalisation of migration management constitutes a significant challenge for the authority of the Geneva Convention Relating to the Status of Refugees 1951(hereinafter referred as the Refugee Convention). The paper further argues that Hungary’s informal cooperation with Serbia is a form of expansion of the Hungarian state authority under the principle of extraterritorial jurisdiction of a state. Therefore, despite informal nature of Hungary’s migration cooperation with Serbia, the responsibility for violations of asylum seekers rights in Serbia and their exclusion from international protection continues to engage Hungary for the reason of having effective control on the migration management in Serbia.

The Effect of Party Autonomy in Extra Territorial Jurisdiction

Nowadays, particular importance attaches to the choice of court agreement as a common clause in international commercial contracts. Nevertheless, for not taking point regarding the validity of such clauses in some legal systems, there are some challenges and ambiguities about it. One of most important problems is the conflict such agreements with sovereignty of state principle and concept of public policy. This essay with surveying the concept of choice of court agreement and also studying some related conventions and regulations shows this agreement is acceptable based on the party autonomy principle. Also by changing the philosophic basis of extra territorial jurisdiction’s rules, jurisdiction agreement doesn’t hurt sovereignty of states. The extra territorial jurisdiction rules is not related to public policy in all cases to say the jurisdiction agreement against them is invalid. The approach of some legal systems such as European Union and international instruments support the view of essay.

The Prevention of Organised Crime Act 1998: The Need for Extraterritorial Jurisdiction to Prosecute the Higher Echelons of Those Involved in Rhino Poaching

The continuous rising levels of rhino poaching in South Africa require smart strategies that move beyond prosecuting the actual poachers to engaging the transnational criminals who deal with the rhino horn after it leaves the country. In this regard, South Africa has a number of laws that deal with the poaching of rhino horns. The Prevention of Organised Crime Act 121 of 1998 (POCA) does not provide for the adequate prosecution of offenders outside South Africa. It is argued that the POCA has to be amended to provide for extraterritorial jurisdiction to deal with the prosecution of the higher echelons of those involved in rhino poaching. While the POCA provides for extraterritorial jurisdiction in some respects, the application of these provisions still presents challenges in their implementation. To substantiate this claim, this article first discusses the international networks that support the trade in rhino horn. A critique of the available statistics on rhino poaching follows, as does a suggestion that attention must be paid to the details in the statistical records to understand how desperate the situation is. Thereafter, an evaluation of South Africa's legislative framework and other interlinking factors that affect rhino poaching is performed This demonstrates the need for extraterritorial jurisdiction with regard to rhino poaching.

Extraterritorial Jurisdiction of State and Perception Transformation of its Spatial Boundaries

Extraterritorial Jurisdiction of State and Perception Transformation of its Spatial Boundaries

The Constitutional Power of Congress to Provide for Extraterritorial Jurisdiction in Civil Anti-Terrorism Matters

The Constitutional Power of Congress to Provide for Extraterritorial Jurisdiction in Civil Anti-Terrorism Matters