Extraterritorial jurisdiction

Extraterritorial jurisdiction (ETJ) is the legal ability of a government to exercise authority beyond its normal boundaries.

Any authority can claim ETJ over any external territory they wish. However, for the claim to be effective in the external territory (except by the exercise of force), it must be agreed either with the legal authority in the external territory, or with a legal authority which covers both territories. When unqualified, ETJ usually refers to such an agreed jurisdiction, or it will be called something like "claimed ETJ".

The phrase may also refer to a country's laws extending beyond its boundaries in the sense that they may authorise the courts of that country to enforce their jurisdiction against parties appearing before them in respect of things that they did outside that country. This does not depend on the co-operation of other countries, since the affected people are within the relevant country (or their case is being heard by a court of that country). For example, many countries have laws which give their criminal courts jurisdiction to try prosecutions for piracy or terrorism committed outside their national boundaries. Sometimes such laws only apply to nationals of that country, and sometimes they may apply to anyone.

Cases of exercised jurisdiction

Diplomatic missions

Diplomatic immunity of foreign embassies and consulates in host countries is governed by the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations.

Military forces

Status of Forces Agreements and Visiting Forces Agreements are in effect in many countries that allow visiting forces to exercise exclusive jurisdiction over members of their forces that are stationed in the host country.

Criminal law

Criminal jurisdiction can be of an extraterritorial nature where:

• a nation asserts it either generally or in specific cases under its domestic law,
• a supranational authority (such as the United Nations Security Council) has created an international court to deal with a specific case (ie, war crimes in a certain country), or
• an international court has been created under a treaty to deal with a stated area of jurisdiction

Criminal codes in certain countries assert jurisdiction over crimes committed outside the country:

• in France, the Code pénal asserts general jurisdiction over crimes by, or against, the country's citizens, no matter where they may have occurred.^[1]
• in Japan, the Penal Code specifies certain cases and applicable lists of crimes over which jurisdiction will be asserted.^[2]

Many countries have implemented laws which allow their nationals to be prosecuted by their courts for crimes such as war crimes and genocide even when the crime is committed extraterritorially. As well, the Rome Statute of the International Criminal Court has been incorporated into domestic law in many countries to provide for the International Criminal Court to exercise jurisdiction within their borders.

Sanctions against foreign countries

Economic sanctions against other countries may be instituted under either domestic law or under the authority of the United Nations Security Council, and their severity can include measures against foreign persons operating outside the country in question.

Competition law

Extraterritorial jurisdiction plays a significant role in regulation of transnational anti-competitive practices. In the US, extraterritorial impacts in this field first arose from Standard Oil Co. of New Jersey v. United States,^[3] where Imperial Oil in Canada was ordered to be divested from Standard Oil. Current practice dates from United States v. Alcoa,^[4] where the effects doctrine^[5] was introduced, allowing for jurisdiction over foreign offenders and foreign conduct, so long as the economic effects of the anticompetitive conduct are experienced on the domestic market.^[6] The effects doctrine has been gradually developed in the U.S. and then in various forms accepted in other jurisdictions. In the EU it is known as the implementation test.^[7]

Extraterritorial jurisdiction in the area of antitrust faces various limitations, such as the problem of accessing foreign-based evidence,^[8] as well as the difficulties of challenged anticompetitive conduct arising from foreign state involvement.^[9]

Application in specific countries

Commonwealth

The ability of Parliaments of Commonwealth countries to legislate extraterritorially was confirmed by s. 3 of the Statute of Westminster 1931.^[10]

In Australia, extraterritorial jurisdiction of the State Parliaments was authorized by s.2 of the Australia Act 1986.^[11]

Canada

The Criminal Code asserts jurisdiction over the following offences outside Canada:^[12]

• on a Canadian aircraft in flight, or on any other flight which terminates in Canada, for any indictable offence
• on any aircraft or in any airport in the world, for endangering such facilities
• by a Canadian citizen, permanent resident, or stateless person resident in Canada, for offences relating to cultural property protected by the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict
• against or on board a Canadian ship on the high seas or a fixed platform attached to the continental shelf of Canada, or by or against a Canadian citizen on any ship or fixed platform, or by any person who is found in Canada after such offence
• on a Canadian ship or aircraft, relating to

• hostage taking,
• offences against internationally protected persons or United Nations personnel, or
• terrorism financing

• on the International Space Station
• involving nuclear material
• involving terrorism
• terrorist activity against Canadian citizens or Canadian government missions, or intended to compel the Canadian government, or any provincial government, to do or not do a particular act
• relating to sexual offences against children

Ireland

United States

Municipal and State Law

In the U.S., many states have laws or even constitutional provisions which permit cities to make certain decisions about the land beyond the town's incorporated limits.

• Examples of states which allow cities to claim ETJ with respect to zoning or other matters, either generally or prior to annexation, are:

• Alaska^[13]
• Arkansas^[14]
• North Carolina,^[15] and
• Texas^[16]

• In California, county Local Agency Formation Commissions determine spheres of influence that cities may exercise over areas outside their boundaries.

Federal Law

The U.S. Criminal Code asserts the following items to fall within the special maritime and territorial jurisdiction of the United States, much of which is extraterritorial in nature:^[17]

1. The high seas and any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, including any vessels owned by US persons that are travelling on them^[18]
2. Any US vessel travelling on the Great Lakes, connecting waters or the Saint Lawrence River (where that river forms part of the Canada–United States border)
3. Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof
4. Any island claimed under the Guano Islands Act
5. Any US aircraft flying over waters in the same manner as US vessels
6. Any US spacecraft when in flight
7. Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States
8. Any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States
9. Offenses committed by or against a national of the United States in diplomatic missions, consulates, military and other missions, together with related residences, outside the US
10. International Parental Kidnapping Crime Act

In order to deal with the issue of Private Military Contractors and Private Security Contractors being used by U.S. Government agencies overseas, the Military Extraterritorial Jurisdiction Act^[19] was passed by Congress to subject them to a similar manner of jurisdiction.

Certain federal property has the status of federal enclave, restricting the application of state laws,^[20] but that has been partially rectified by the Assimilative Crimes Act.^[21] Similarly, State jurisdiction is restricted on Indian lands.

Generally, the U.S. founding fathers and early courts believed that American laws could not have jurisdiction over sovereign countries. In a 1909 Supreme Court case, Justice Oliver Wendel Holmes introduced what came to be known as the "presumption against extraterritoriality," making explicit this judicial preference that U.S. laws not be applied to other countries. American thought about extraterritoriality has changed over the years, however. For example, the Alien Tort Statute of 1789 allows foreign citizens in the United States to bring cases before federal courts against foreign defendants for violations of the "law of nations" in foreign countries. Although this statute was ignored for many years, U.S. courts since the 1980s have interpreted it to allow foreigners to seek justice in cases of human-rights violations in foreign lands, such as in Sosa v. Alvarez-Machain.^[22] In Morrison v. National Australia Bank, 2010, the Supreme Court held that in interpreting a statute, the "presumption against extraterritoriality" is absolute unless the text of the statute explicitly says otherwise.^[23]

Economic Law

Economic sanctions with extraterritorial impact have been instituted under:

• the Trading with the Enemy Act (as in the case of sanctions against Cuba)
• the Arms Export Control Act and International Traffic in Arms Regulations (in governing the re-export of subject goods and technologies after initial export from the US)
• the International Emergency Economic Powers Act (especially in the case of sanctions against Iran)

Unlike most nations, the United States also attempts extraterritorial application of U.S. personal tax laws. The Foreign Account Tax Compliance Act is an extension of this concept, which focuses on enforcement.

See also

• "Free Trade Zone"
• Extraterritoriality
• International child abduction
• Taxation of non resident Americans
• Foreign Account Tax Compliance Act (U.S. law)

References

1. "Code pénal, art. 113-6 à 113-12" (in French). Retrieved 2012-08-02.
2. "Penal Code, ss. 2-6". Retrieved 2012-08-03.
3. The Standard Oil Company of New Jersey, et al. v. The United States, 221 U.S. 1; 31 S. Ct. 502; 55 L. Ed. 619; 1911 U.S. LEXIS 1725
4. United States v. Aluminium Company of America (Alcoa) 148 F.2d 416 (2d Cir. 1945)
5. A. Parrish, 'The Effects Test: Extraterritoriality's Fifth Business' (2008) 61 Vand. L. Rev. 1455
6. JP Griffin, Extraterritoriality in U.S. and EU Antitrust Enforcement (1999) 67 Antitrust L.J. 159
7. D Geradin, M Reysen, and D Henry, Extraterritoriality, Comity and Cooperation in EC Competition Law (2008)
8. B Sweeney, 'Combating Foreign Anti-competitive Conduct: What Role for Extraterritorialism?' (2007) 8 Melbourne Journal of International Law 35
9. M Martyniszyn, Avoidance Techniques: State Related Defences in International Antitrust Cases (2011)
10. "s.3, Statute of Westminster 1931". Retrieved 2012-08-01.
11. "s.2, Australia Act 1986". Retrieved 2012-08-01.
12. "Criminal Code, RSC 1985, c C-46, s 7". Retrieved 2012-08-03.
13. "Alaska Statutes - Section 29.35.020.: Extraterritorial jurisdiction". FindLaw. Retrieved 2012-08-03.
14. "Planning and Zoning FAQs". City of Fort Smith, Arkansas. Retrieved 2012-08-03.
15. "Incorporation, Annexation and Extra-Territorial Jurisdiction: A Double Standard?" (PDF). Cedar Grove Institute for Sustainable Communities. Retrieved 2012-08-03.
16. "Extra-Territorial Jurisdiction (ETJ)". City of Fort Worth. Retrieved 2012-08-03.
17. 18 U.S.C. § 7 (subject to the provisions of any treaty or international agreement)
18. as clarified under s. 901, Pub.L. 104-132–110, 1317 Stat. : “The Congress declares that all the territorial sea of the United States, as defined by Presidential Proclamation 5928 of December 27, 1988, for purposes of Federal criminal jurisdiction is part of the United States, subject to its sovereignty, and is within the special maritime and territorial jurisdiction of the United States for the purposes of title 18, United States Code.”
19. 18 U.S.C. § 3261
20. 18 U.S.C. §7(3). See United States Department of Justice Criminal Resource Manual § 1630
21. 18 U.S.C. § 13
22. Cabranes, Jose. "Withholding Judgment: Why U.S. Courts Shouldn't Make Foreign Policy". Foreign Policy. Retrieved 3 December 2015.
23. Morrison v. National Australia Bank syllabus

External links

• Extra-territorial jurisdiction of ECHR states - factsheet of ECtHR case law
• Domestic Laws Against Genocide - a comprehensive list of municipal laws criminalising genocide. Many of them include clauses to allow extraterritorial jurisdiction.