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This chapter analyses the concept of extraterritorial jurisdiction and underlying fundamental notions, such as sovereignty, non-intervention, balancing of interests, proportionality, and legal principles. It provides a refined definition of extraterritorial jurisdiction. Moreover, it examines a plurality of ways to infer the proportionality principle from the structure of the legal order and shows that it can be classified, inter alia, as an element of teleological interpretation. The chapter argues that one cannot deny the existence of this principle in international law and that the principle of proportionality, understood as a scheme for rational argumentation, provides an adequate framework as to how exercises of extraterritorial jurisdiction can be assessed in a legally adequate manner.

This chapter principally addresses offences committed in other countries, but also discusses the rules of British nationality in so far as these determine who may or may not be subject to extraterritorial liability. Topics discussed include forms of extraterritorial jurisdiction, jurisdiction and extradition, nationality and status, jurisdiction over particular classes, offences involving defence or national security; murder, manslaughter, and bigamy; crimes under international law, terrorist offences and offences frequently connected with terrorism, sexual offences involving children, perjury and related offences, environmental protection, and inchoate offences.

This introductory chapter provides an overview of the main questions examined in this book. It argues that there are three sets of questions which demarcate the so-called ‘trade and environment’ nexus: The first set of questions concerns the relationship between WTO law, multilateral environmental agreements, and non-WTO law more generally. This brings into play the issue of conflict of norms, the legal status of the lex specialis principle and similar legal maxims, and the concepts jurisdiction and applicable law in WTO dispute settlement. A second set of questions is related to the disputed concepts of extraterritorial jurisdiction and unilateral state action. A third group of issues concerns the scope and contents of relevant WTO disciplines. In this respect, this book examines the basic principles governing the General Agreement on Tariffs and Trade (GATT) and the Agreement on Technical Barriers to Trade (TBT Agreement).

This chapter outlines an international legal framework for the problem of extraterritorial jurisdiction in general. It begins with the Lotus case of 1927, which remains the only international decision about a State’s right to exercise criminal jurisdiction. It then examines the consequences of ultra vires jurisdiction, as well as possible remedies. The chapter shows the connection between extraterritorial jurisdiction, extradition, and human rights, and then discusses the burden of proof in litigation regarding extraterritorial jurisdiction. It concludes with some reflections on the impacts of globalization on jurisdiction.

This chapter analyses the evolution of the Strasbourg case law on the concept of jurisdiction within the meaning of Article 1 of the European Convention on Human Rights by attempting to provide a comprehensive answer to the question of extraterritorial jurisdiction. It ascertains whether there exists any truth in the criticism directed towards the European Court of Human Rights’ case law and, most importantly, any room for its further development. The chapter will first examine the early jurisprudence of the Convention bodies and explain how they dealt with the difficult question of extraterritorial jurisdiction. It will then discuss the two tests developed by the Court when determining extraterritorial jurisdiction in various case scenarios. Finally, the concluding section of the chapter will summarize these discussions and pose a question for future development of the Court’s case law.

This chapter examines the meaning of territory and how the understanding of state sovereignty is now linked to political and economic influence rather than to the ability to assert exclusive coercive power within geographical boundaries. The issue of ‘extraterritorial jurisdiction’ is discussed by looking at Lord Bingham's leading opinion in Société Eram Shipping Co Ltd v Cie Internationale de navigation (2004).

This introductory chapter clarifies the philosophical project contained in this book, and provides a brief summary of its content. It illustrates the difficulties raised by the issue of extraterritoriality and situates the main topic of the book within the broader literature on the moral justification for legal punishment and on global justice.

International Humanitarian Law (IHL) is the body of rules and principles specifically designed to regulate the conduct of States and individuals actively involved in situations of international or non-international armed conflict. This chapter examines whether and, if so, to what extent the lex specialis of IHL adjusts the normative content of the paradigm of law enforcement to the realities of armed conflict as far as the use of lethal force outside the conduct of hostilities is concerned. The analysis takes into account those provisions of international criminal law which are specifically designed to penalize the use of lethal force in situations of armed conflict.

The chapter looks at the relationship between jurisdiction and criminalization. The first section analyses the institutional dimensions of jurisdiction, looking at the relation between jurisdiction and civil order, and at some of the basic distinctions which have shaped the emergence of modern ideas of criminal law jurisdiction. The second section traces the development of the concept of territorial jurisdiction, looking at the means by which jurisdiction was extended from the governance of the local community to nation state, and to its support for forms of imperial rule. The third section then looks at the ways in which the meaning of territory has been linked to changing ideas of civil order and the changing aims of the criminal law. The chapter concludes by looking at contemporary challenges to territorial conceptions of jurisdiction and their impact on questions of criminalization.

This chapter argues that the vast increase in the U.S. use of military contractors to fight the War on Terror has created the potential for illegality and abuse by U.S. military contractors but little ability to hold them accountable. Exemplifying this is the difficulty that the U.S. faced in prosecuting Blackwater employees for their massacre of Iraqi civilians in Nisour Square in the course of providing security services for the U.S. State Department. Due to the lack of extraterritorial jurisdiction over the activities of many such contractors, the laws that apply to military personnel, such as the UCMJ and the MEJA, do not provide grounds for criminal or civil actions against contractors in many actual and possible circumstances. This chapter reviews the possibilities for using MEJA, SMTJ, ATS, UCMJ, the Anti-torture Statute, and foreign law against rogue or criminal contractors, and finds holes in the scope of each for securing justice. The chapter goes on to consider some recent proposals, such as the Civil Extraterritorial Jurisdiction Statute (CEJA) and extensions to existing law, to plug the gaps that make it difficult to prosecute or sue contractors for acts such as torture.

This chapter examines the adjudicatory jurisdiction over multilateral enterprises (MNE) in the U.S. and the European Union. It mentions Professor Ian Brownlie's opinion that the principle of ‘substantial or effective connection’ with forum state would be an appropriate basis for jurisdiction in cases involving MNE. The chapter suggests that jurisdictional conflicts created by the operations of MNE can be minimized by notification and consultation among states, and by the use of existing international agreements designed to minimize friction arising over assertion of extraterritorial jurisdiction.

This chapter focuses on the international reach and jurisdiction of US Financial Laws with emphasis on anti-fraud provisions in private litigation. It analyses past cases that involve extraterritorial corporations outside the United States, such as the landmark Morrison v. Australia Bank Ltd. It analyses Morrison and describes how it extinguished two species of securities class-action claims that proliferated in preceding years: foreign-cubed claims and foreign-squared claims. The chapter also examines the process of inspecting foreigners by auditors of foreign issuers listed in the United States by the Public Company Accounting Oversight Board (PCAOB) and the extraterritorial scope of the whistleblower provision of the Sarbanes-Oxley Act. Furthermore, it looks into the jurisdiction of the US Foreign Corrupt Practices Act which was enacted to prohibit the widespread bribery of foreign officials by US corporations.

Sierra Leone provides the scene of this case study that demonstrates the emergence of a key tenet of international law: extraterritorial jurisdiction. There was a fundamental tension between the British desire to control the volatile region in West Africa, and Stephen’s mission to adhere strictly to the rules of sovereignty, territory, and legality. This chapter explains this tension and its ultimate resolution. British criminality rapidly rose around the globe in the 1830s and 1840s, and in the regions outside of Sierra Leone trying to control this behavior provoked a crisis of jurisdiction. Over Stephen’s objections, the solution developed for controlling British criminality was the Foreign Jurisdiction Act of 1843, stating that British citizens would be subject to British law even though they were outside of Britain. In effect, the British created a legal principle that asserted that their might made British rights wherever they cared to declare them.