Extraterritorial jurisdiction

From Wikipedia, the free encyclopedia
Jump to: navigation, search

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

Any authority can, of course, claim ETJ over any external territory they wish. But 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[edit]

Diplomatic missions[edit]

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[edit]

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[edit]

Criminal jurisdiction can be of an extraterritorial nature where:

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.

Prevent Genocide International[3] claims that crimes such as genocide need to have extraterritorial jurisdiction so that people that commit such crimes can not find protection in a country that does not have such a law:

The crime of genocide in domestic law and the domestic prosecution of persons committing genocide are subjects of international significance. Correspondingly, the failure of nations to enact laws against genocide, crimes against humanity and war crimes are matters of international concern. For example, in April 1999, a Swiss court threw out the charge of genocide in the trial of Rwandan mayor, Fulgence Niyonteze, because the crime of genocide was not at that time a part of Swiss law. Many countries have more effective laws for air piracy (hijacking) than for genocide.

— Prevent Genocide International[4]

Sanctions against foreign countries[edit]

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[edit]

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,[5] where Imperial Oil in Canada was ordered to be divested from Standard Oil. Current practice dates from United States v. Alcoa,[6] where the effects doctrine[7] 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.[8] The effects doctrine has been gradually developed in the US and then in various forms accepted in other jurisdictions. In the EU it is known as the implementation test.[9]

Extraterritorial jurisdiction in the area of antitrust faces various limitations, such as the problem of accessing foreign-based evidence,[10] as well as the difficulties of challenged anticompetitive conduct arising from foreign state involvement.[11]

Application in specific countries[edit]

Commonwealth[edit]

The ability of Parliaments of Commonwealth countries to legislate extraterritorially was confirmed by s. 3 of the Statute of Westminster 1931.[12]

In Australia, extraterritorial jurisdiction of the State Parliaments was authorized by s.2 of the Australia Act 1986.[13]

Canada[edit]

The Criminal Code of Canada asserts jurisdiction over the following offences outside Canada:[14]

Ireland[edit]

United States[edit]

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:

The US 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:[19]

  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[20]
  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

In order to deal with the issue of Private Military Contractors and Private Security Contractors being used by US Government agencies overseas, the Military Extraterritorial Jurisdiction Act[21] 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,[22] but that has been partially rectified by the Assimilative Crimes Act.[23] Similarly, State jurisdiction is restricted on Indian lands.

Economic sanctions with extraterritorial impact have been instituted under:

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[edit]

References[edit]

  1. ^ "Code pénal, art. 113-6 à 113-12". Retrieved 2012-08-02.  (French)
  2. ^ "Penal Code, ss. 2-6". Retrieved 2012-08-03. 
  3. ^ Prevent Genocide International
  4. ^ Prevent Genocide International. Domestic Laws Against Genocide
  5. ^ 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
  6. ^ United States v. Aluminium Company of America (Alcoa) 148 F.2d 416 (2d Cir. 1945)
  7. ^ A. Parrish, 'The Effects Test: Extraterritoriality's Fifth Business' (2008) 61 Vand. L. Rev. 1455
  8. ^ JP Griffin, Extraterritoriality in U.S. and EU Antitrust Enforcement (1999) 67 Antitrust L.J. 159
  9. ^ D Geradin, M Reysen, and D Henry, Extraterritoriality, Comity and Cooperation in EC Competition Law (2008)
  10. ^ B Sweeney, 'Combating Foreign Anti-competitive Conduct: What Role for Extraterritorialism?' (2007) 8 Melbourne Journal of International Law 35
  11. ^ M Martyniszyn, Avoidance Techniques: State Related Defences in International Antitrust Cases (2011)
  12. ^ "s.3, Statute of Westminster 1931". Retrieved 2012-08-01. 
  13. ^ "s.2, Australia Act 1986". Retrieved 2012-08-01. 
  14. ^ "Criminal Code, s. 7". Retrieved 2012-08-03. 
  15. ^ "Alaska Statutes - Section 29.35.020.: Extraterritorial jurisdiction". FindLaw. Retrieved 2012-08-03. 
  16. ^ "Planning and Zoning FAQs". City of Fort Smith, Arkansas. Retrieved 2012-08-03. 
  17. ^ "Incorporation, Annexation and Extra-Territorial Jurisdiction: A Double Standard?". Cedar Grove Institute for Sustainable Communities. Retrieved 2012-08-03. 
  18. ^ "Extra-Territorial Jurisdiction (ETJ)". City of Fort Worth. Retrieved 2012-08-03. 
  19. ^ 18 U.S.C. § 7 (subject to the provisions of any treaty or international agreement)
  20. ^ as clarified under s. 901, Pub.L. 104-132–110, 1317 Stat. [1]: “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.”
  21. ^ 18 U.S.C. § 3261
  22. ^ 18 U.S.C. §7(3). See United States Department of Justice Criminal Resource Manual § 1630
  23. ^ 18 U.S.C. § 13

External links[edit]