The legal and territorial boundaries of a nation usually are fairly well defined; however, extraterritorial jurisdiction allows those boundaries to extend in certain circumstances. In this lesson, we’ll look at the definition of extraterritorial jurisdiction and how it applies to international law.
S. citizen sits in a cyber cafe in a small town in Oklahoma. She pecks away at her laptop as two men approach her and flash their badges. They say they’re agents of the Royal Canadian Mounted Police from Canada, and she’s under arrest for hacking into commercial servers in their country. Is her arrest legitimate? Can they legally take her to Canada?Typically, a nation can’t enforce its laws past its borders. However, extraterritorial jurisdiction gives government the authority to extend its laws beyond its borders. The U.
S. Supreme Court in Warden v. Hayden (1967) held that agents from one state can follow a fleeing suspect in an emergency to prevent imminent danger to the public. This is known as the hot pursuit doctrine.
Under this doctrine, Texas Rangers can arrest a fleeing suspect in New Mexico. While this is an example of extraterritorial jurisdiction between states in a nation, what if that suspect fled across the Mexican border? Can the Rangers follow?
International Border Crossings
For a nation to have authority to enforce its laws beyond its borders, three types of international extraterritorial jurisdiction must be present: prescriptive jurisdiction, enforcement jurisdiction, and adjudicative jurisdiction.Let’s look at each of these;
Prescriptive jurisdiction is the authority to write long arm statutes, which are laws that give a sovereign state the ability to extend its authority past its borders. In 1927, the Permanent Court of International Justice in the League of Nations issued a ruling in the Lotus case which gave member nations the right to write extraterritorial jurisdictional legislation. This fairly permissive rule gives each nation the right to pass such legislation as it sees fit.
However, whether that nation can enforce that law outside their own border is another question.
The Lotus case, which gave that authority to create legislation, also limits the enforceability of those laws. Enforcement jurisdiction deals with the ability of a nation to actually enforce any legislation it may pass; for example, by being allowed to arrest a suspect located outside its borders. This is based on the concept of territoriality, meaning that while each nation is sovereign within its own borders and can write legislation without interference from other nations, its enforcement of those laws in foreign countries is greatly restricted.In our cyber hacker case, under the Lotus rule, Canada can write legislation to enforce its laws abroad, but the concept of territoriality also means the U.S.
can prohibit those agents from enforcing those laws in its borders. So while prescriptive authority is said to be permissive, enforcement authority is extremely limited.The only hope the Mounties have is cooperation from federal or state authorities in the U.
S., either through treaties or an extradition request. However, even if our cyber hacker is extradited, can the Canadian government try her if she has otherwise never set foot in Canada?
That is where the third type of international extraterritorial jurisdiction must be examined. Adjudicative jurisdiction is the authority of a court over the person charged with breaking the law. Without that authority, even if the forum state (the state that is asserting the extraterritorial jurisdiction) has prescriptive and enforcement jurisdiction over the person outside its boundaries, it can’t convict them of a crime. Typically the long arm statute that gave the forum state enforcement jurisdiction also grants specific courts adjudicative jurisdiction.
This is usually based on a minimum contacts test where the court would look to see if the suspect maintained sufficient contacts with the forum state to avail themselves to its laws.For example, if the Texas Rangers’ suspect is a U.S. citizen, then the adjudicative jurisdiction would exist by virtue of citizenship.
However, if the lawbreaker is a Mexican national, then we need to look at all three types of jurisdiction to see if they can bring that person to justice through extraterritorial jurisdiction laws.
- Do the Rangers have prescriptive jurisdiction? Yes because the Lotus case allows the U.S.
to pass extraterritorial laws.
- Do the Rangers have enforcement jurisdiction? This is tough because the U.S. would have to have a treaty that allowed for such jurisdiction, and at present, there is no such treaty, so they would have to request extradition.
- Do the Rangers have adjudicative jurisdiction? Maybe.
If the long arm statute that Texas passed had a minimum contacts provision, then by crossing the border into Texas and committing a crime, the suspect availed himself to Texas law.
So the bottom line is, Texas has prescriptive jurisdiction, and probably adjudicative jurisdiction if they wrote it into the long arm statute. But Texas probably wouldn’t have enforcement jurisdiction to be able to follow the suspect into Mexico and arrest him. Does this mean that prescriptive and adjudicative authority is meaningless? Not at all. The Rangers could seek extradition from Mexico, or they could just wait until he crosses the border into the U.S.
Now what about our cyber hacker? The same analysis is required. Canada has prescriptive authority to write laws against people hacking into their servers from outside their borders. It also can pass laws providing its courts adjudicative jurisdiction based on minimal contacts, which would be provided by the hacking of servers on Canadian soil.But what about enforcement jurisdiction? Cyber security is prompting many nations to negotiate treaties that expand enforcement jurisdiction, but as of today, no such treaty exists between Canada and the U.S. so those Mounties would be out of luck.
However, that could change, and if it does, then the Mounties’ mantra that they always get their man (or woman) would apply to cyber crimes as well.
Let’s review…Extraterritorial jurisdiction is the ability of a nation to assert its laws beyond its territorial boundaries. To determine whether this authority exists, there must be:
- Prescriptive jurisdiction, which is the authority to pass extraterritorial jurisdiction laws and legislation
- Enforcement jurisdiction, which is the authority to enforce laws in another nation
- Adjudicative jurisdiction, which is the authority of the forum state’s court to hear the case
If all three types of jurisdiction exist, then the forum nation can charge a foreigner, enforce that law in the foreign state, and try the defendant in a court within its borders. Typically, this process breaks down due to lack of enforcement jurisdiction, and the forum state has to seek extradition or wait for the suspect to enter one of its territories.