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 with
respect to acts they allegedly
engaged in outside that country.
This does not depend on the co-
operation of other countries, since
the affected people are within the
relevant country (or at least, in a
case involving a person being tried
in absentia, the 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
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 (e.g. 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. In
addition, 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 of
Nations

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 Kingdom

Under Section 72 of the Sexual

Offences Act 2003, British citizens
can be prosecuted for sexual
offences committed against
children abroad. Section 72 was
used to convict paedophile
Richard Huckle on 71 counts of
serious sexual offences against
children in Malaysia.[13] Huckle is
serving 22 life sentences. While no
official tally is kept, seven people
are believed to have been
convicted under Section 72.[14]
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[15]
Arkansas[16]
 North Carolina,[17] and
Texas[18]
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:[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
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[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.

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.[24] 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.[25]
Economic law

Economic sanctions with

extraterritorial impact have been
instituted under:

the Trading with the Enemy

Act (as in the case of the
embargo 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
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. Evans, Martin (2016-06-01).
"Britain's 'worst paedophile'
"Britain's 'worst paedophile'
Richard Huckle who targeted
poverty-stricken children faces life
in prison after admitting scores of
offences" . The Telegraph.
ISSN 0307-1235 . Retrieved
2018-09-06.
14. "Sky News - First For Breaking
News From The UK And Around
The World" . Sky News. Retrieved
2018-09-06.
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?" (PDF). 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
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
Criminal Resource Manual § 1630
23. 18 U.S.C. § 13
24. Cabranes, Jose. "Withholding
Judgment: Why U.S. Courts
Shouldn't Make Foreign Policy" .
Foreign Policy. Retrieved
3 December 2015.
25. 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.

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