Introduction
It is a relatively little discussed aspect of the constitutional crisis that shook Canada over the demotion of Attorney General Jody Wilson-Raybould by Prime Minister Justin Trudeau that, beyond the question of undue interference with her functions or even the possibility that a powerful company would get a lenient deal in the form of a deferred prosecution agreement, lies, in fine, a bribery offence committed in Libya — in other words, an offence that was committed by a Canadian company but far from Canada and in ways that did not directly or at least evidently affect Canadian interests and public order. The view of some Canadian commentators and probably a large part of public opinion of acts of bribery committed in a distant country widely seen as corrupt in order to obtain contracts that stand to benefit Canadian workers may be dim, but it is probably not very harsh. In fact, that distance was picked up by some commentators to suggest that there may be something extraordinary about the entire chain of events and the idea that Canadian democracy could be shaken as a result of Canada’s commitment to enforce some of its criminal norms far from its territorial jurisdiction.Footnote 1 Surely, this was a self-inflicted wound, in a context where very little obliged Canada to penalize the behaviour of its companies abroad in this way. Even those broadly sympathetic to the 1998 Corruption of Foreign Public Officials Act have noted that the law may at the time have been adopted in a rush, without a full reckoning of its implications.Footnote 2 The suggestion seemed to be that bribery of a foreign public official was not a sufficiently serious crime to warrant extending the full arm of Canadian criminal law abroad, with momentous consequences at home. Of course, a crime is no less a crime simply because one struggles immediately to make sense of its normative salience. Bribery of foreign officials is penalized under the Canadian Criminal Code as a result of a law adopted in Parliament.Footnote 3 The relative gravity of the crime, moreover, is not the point. Criminal theorists have long accustomed us to the distinction between mala in se and mala prohibita and the possibility that the latter stands for criminal wrongfulness even without classical turpitude when key regulatory interests are involved.Footnote 4 Indeed, others have gone so far as to suggest that the SNC Lavalin scandal could be even more embarrassing than the Wilson-Raybould debacle,Footnote 5 especially in light of monitoring and a review of Canada’s handling of the case by the Organisation for Economic Co-operation and Development.Footnote 6 They have insisted that there was something particularly odious about engaging in corruption in a despotic country.Footnote 7 Moreover, surely some extraterritorial crimes (for example, child sex tourism) are clearly mala in se.
The question remains, though, as to what specifically Canadian interest is protected by Canadian nationals being prosecuted in Canada for offences that were neither committed on Canadian territory nor committed against Canadian nationals? Why should Canada, a country that, in addition, has relatively little tradition of doing so, enforce its laws in foreign jurisdictions, at potentially significant cost to itself? And what of the territorial states whose jurisdiction may be subtly and not so subtly sidelined by such a move? It is on occasions such as the constitutional crisis noted above — when the actual implications of aggressively prosecuting Canadian agents operating in far-flung locations are driven home — that what may once have seemed an innocuous extension of jurisdictional reach driven by globalization can be reassessed as having potentially significant feedback costs. This is before one even has taken into account the potential costs (and benefits) to the country where the offence was committed (the territorial state) and which may be wary of (or happy at) this jurisdictional encroachment, for reasons of its own that will be discussed further. Finally, it is without prejudice to what individual defendants or the international community may opine on the matter.
The study of nationality-based extraterritorial criminal jurisdiction (hereinafter referred to as active nationality jurisdiction) is, with a few isolated exceptions, the parent pauvre of international criminal law writing. Whereas there is a deluge of scholarship on universal jurisdiction, and, specifically, on its justification,Footnote 8 personal criminal jurisdiction sometimes seems as if it hardly needs an explanation or is reduced to a mere technical issue. This is despite the fact that states, even when it comes to the worst international crimes, are more likely to invoke active nationality jurisdiction than they are pure universal jurisdiction. It is also even though the dominant basis of criminal jurisdiction is territorial such that ordinary offences committed in foreign locations (1) do not have any immediate public order ramifications in the country of origin; (2) involve applying one’s laws extraterritorially in ways that may be politically sensitive and logistically complex; and (3) require the state of nationality to take on extra burdens that one would imagine would be better taken care of by the territorial state.
At least two reasons can explain the poverty of normative reasoning about the practice, neither of which justifies it. On one level, the existence of active nationality jurisdiction is merely presented as a function of international law allowing it. Since it is largely recognized that nationality-based extraterritorial jurisdiction is authorized in international law under the active personality principle, as the reasoning goes, the matter is often left there. The problem is that this confuses the practice’s bare legality and its normative justification, permissibility, and desirability; simply because states can get away with asserting active nationality jurisdiction does not mean that it is a fully legitimate practice in normative terms. The “should” question is in fact the harder and more interesting one.Footnote 9 Moreover, the legality of the practice is, in a sense, the easy part, but it does not explain why certain states choose to exercise active nationality jurisdiction, why they may do so only for certain crimes, and on the basis of what rationale they do so. It is worth bearing in mind that many states decide not to extend their criminal jurisdiction to the crimes committed by their nationals abroad, even though they could. Notably, this has been the case historically in Canada, as in many other common law countries. That Canada and other states now do extend jurisdiction to some crimes committed by their nationals abroad suggests a significant shift that needs to be accounted for.
On another level, whether a state prosecutes its nationals for crimes committed abroad is merely explained away as a result of particular legal traditions, where the common law is presented as being traditionally averse to extraterritorial extensions of criminal jurisdiction but where continental jurisdictions have no such qualms. Again, this explanation through historical and cultural inertia hardly provides much of a normative foundation for the practice and is often based on a caricature (wherein continental systems are based on personal jurisdiction and common law ones are based on territorial jurisdiction). Furthermore, as with many purportedly incommensurable differences between common and civil law, this one is in fact highly contingent on, and not necessarily logically connected to, the criminal law and leaves space for much fluidity.Footnote 10 If it was ever true in the past, we have reason to think that the distinction is certainly less firm today, with states that theoretically could exercise jurisdiction over their nationals being very careful about when they actually do so and states that supposedly do not exercise such jurisdiction increasingly making exceptions.
The focus on the strict letter of international law, on the one hand, and a mechanistic approach to what legal traditions entail, on the other, has, in short, robbed the discipline of a more ambitious comparative analysis of the justifications of seeking to extend the long arm of one’s law to the behaviour of one’s nationals abroad. Those justifications are partly based on the perceived authorization of international law, but they also operate in an interstitial space between domestic (constitutional and criminal), transnational, international, and supranational legal logics. In practice, the justification of active nationality jurisdiction is often much more complex than the legal case for it, rooted in domestic democratic and constitutional debates and formulated, for example, with an attention to the comity owed to other nations. To draw on a hypothetical situation invoked by Judge Louis LeBel in the Hape case, Canada could probably criminalize smoking by Canadian nationals in the streets of Paris, but would Canada want to do this, at what cost, and how might France object?Footnote 11
The exceptions to this lack of interest are notable and will be referred to, and discussed in, this article.Footnote 12 However, they are often sectoral,Footnote 13 jurisdiction specific,Footnote 14 or deal with the special case of repression in extraterritorial spaces such as the high seas or the air space above them.Footnote 15 The most developed recent theoretical treatment of active nationality jurisdiction is, in fact, a thorough critique of the principle by Alejandro Chehtman who, brilliantly but, in my view, implausibly, finds that “as a basis for criminal jurisdiction the nationality principle is altogether unjustified at the bar of justice.”Footnote 16 The case for extraterritorial personal jurisdiction has been made more by default than actively and on an impromptu basis to satisfy the needs of the moment rather than comprehensively and jurisprudentially. This article, by contrast, seeks to explore, revive, and develop an at least moderate case for the desirability of active nationality jurisdiction under international law.
Part positive law, part jurisprudential, and part socio-legal inquiry, this article begins by setting out the constraints on asserting extraterritorial active nationality jurisdiction and the sort of challenges it needs to overcome, notably the primacy of territorial jurisdiction. It then goes on to examine some typical grounds that have been adduced as justification for such criminalization across several jurisdictions and evaluates their jurisprudential cogency. Throughout, the article focuses on “pure” cases of active nationality jurisdiction that cannot be easily subsumed under the exercise of another title to jurisdiction.Footnote 17 The project’s preliminary goal is to establish what the dominant reasons typically invoked for active personality criminalization are, and whether those reasons can be made to conform with both criminal law theory and public international law jurisprudence. In line with much scholarship in international criminal law of the last decades, the article suggests that both domestic criminal and public international legal concerns need to be addressed simultaneously. The article concludes by reflecting on the return of penal extraterritoriality and what it means more broadly for the penal and sovereign project globally.
Setting the Framework: Constraints on the Extension of the State’s Active Nationality Jurisdiction
In order to make the case for active nationality jurisdiction, it is necessary, first, to understand the case against it in all of its complexity. An argument for active nationality jurisdiction must be one that at least in part addresses these concerns. In this context, it has been pointed out that, even in a case that ultimately concluded in favour of extraterritoriality, the starting point is that Canada “assuming jurisdiction over activities carried on entirely within another country appears, at first blush, to be anomalous, and discordant with precepts of the territorial and jurisdictional integrity of nations represented by the notion of sovereignty.”Footnote 18 Indeed, the largely territorial basis of sovereignty and the primacy of territorial over personal jurisdiction suggest that prosecuting non-nationals on one’s territory may be far less problematic and certainly more common than prosecuting one’s nationals for their crimes abroad.
Countries that do not assert active nationality jurisdiction often point out that they have no objection in principle to extraditing their nationals and, thus, no need to compensate for a reticence that might otherwise leave crimes unsanctioned. This is coherent as far as it goes and is certainly one policy reason why those states have historically felt that not asserting personal jurisdiction abroad was not that problematic, but it is not really a systematic case for declining to exercise jurisdiction over one’s nationals. In this part, I therefore portray arguments against the extension of a state’s jurisdiction to its nationals that are not simply derivative of some position on extradition, as grounded instead in legitimate practical and normative concerns. To be sure, these are partly systemic and have to do with the operation of the international system itself as a system devoted to reducing the friction that inevitably arises from overlaps of jurisdiction,Footnote 19 but they also include a set of concerns that need to be disaggregated depending on whether they emanate from the territorial state, the state of nationality itself, or potential defendants.
TERRITORIAL STATE JURISDICTION
The territorial or “host” state is perhaps the one that may most evidently be reluctant about the exercise of foreign national jurisdiction for crimes that were committed on its territory. Although all bases for jurisdiction are theoretically equal in international law, clearly, territorial jurisdiction has a certain pride of place and stands to be subtly and not so subtly displaced by simultaneous foreign assertions of extraterritorial jurisdiction. From a criminal law point of view, it is likely that the consequences of the crime will have been mostly felt in the territorial state; from an international law point of view, the assertion of prescriptive and adjudicative jurisdiction, already potentially overbearing, risks translating into further police or judicial acts that may encroach on the territorial state’s sovereignty.
As LeBel J once put it, France would probably cringe at a Canadian law criminalizing Canadians smoking in Paris, might take umbrage if such an offence were prosecuted in Canada, and would be positively infuriated if Canadian police started arresting Canadians in Paris for smoking.Footnote 20 Similarly, and to take a real example, Canada may be irked in principle that Korea, through the long arm of its criminal jurisdiction, has made it clear that it will prosecute Korean nationals who consume marijuana wherever in the world they do so, effectively denying Korean citizens freedoms that Canada feels anyone on its territory (including citizens of Korea) should be able to enjoy. Indeed, the reluctance of particularly common law states to assert jurisdiction over their nationals extraterritorially has often been justified rather meekly on the grounds of deferring to the sovereignty of the territorial state. As Sir George Lewis put it, “[a] government would feel, with respect to offenses committed abroad in a civilized country, that it was, at the best, undertaking a work of supererogation; perhaps that it was interfering in a matter which, as the law of the place provided for it, would most properly be left alone.”Footnote 21
These arguments have been rekindled in a context where nationality jurisdiction has been extended in ways that are presented as potentially dangerous or as constituting ill-advised jurisdictional overreach. For example, as one member of the Canadian Parliament put it, “I … wonder, when he says that all this corruption is taking place in foreign countries, who made us the government of foreign countries that is going to clear up all this corruption, when it happens, wherever it happens.”Footnote 22 In fact, although continental countries are often caricatured as drawing liberally on active nationality jurisdiction, they themselves sometimes deliberately limit its reach, precisely on account of the need not to ruffle host state jurisdictional sensitivities. For example, Article 113-6 of the French Criminal Code anticipates that active nationality jurisdiction will be exercised only on condition that the host country criminalizes the same behaviour (this is reminiscent, not surprisingly, of the dual criminality requirement in extradition).Footnote 23
The paradox is that, from the point of view of the state of nationality, all that may be involved (as we will see in more detail in the next part) is taking responsibility for the acts of one’s own nationals and offering, free of charge as it were, a prosecution service for crimes that have affected, perhaps primarily, the host state. Having said that, it is also true that extraterritorial assertions of personal jurisdiction operate against a certain historical background. To be sure, no one is claiming that foreign nationals should be submitted only to the jurisdiction of their state of origin as per the old regime of capitulations.Footnote 24 In our era, jurisdiction by the state of nationality is neither theoretically nor practically incompatible with, or reductive of, the jurisdiction of the host state. But assertions of jurisdiction over one’s nationals do have echoes of an earlier era in which Western powers arrogated to themselves the monopoly of jurisdiction over their own, not, as one might suspect, to lighten the load of dominated nations but, rather, to bypass, in effect, their jurisdiction and even grant a certain immunity to their nationals.Footnote 25
Moreover, in practice and given that for all intents and purposes individuals can only be prosecuted a limited number of times, especially for the same facts, assertions of jurisdiction by the state of nationality may frustrate the exercise of the territorial state’s own jurisdiction. This may lead to a tug-of-war with the territorial state about who should primarily exercise jurisdiction. Extraterritorial jurisdiction will often seem like it is dismissive of the ability of the host state to exercise its jurisdiction and punish crimes, even when it is not claimed systematically. In short, it may be condescending rather than fully imperialistic. Of course, it also needs to be pointed out that the exercise of active nationality jurisdiction, in specific cases, has not always been as innocuous and innocent as it is presented. Sometimes it may be perceived as involving an effort to deliberately pre-empt the exercise of the jurisdiction of the territorial state in order, perhaps, to make the defendant benefit from a more clement state of nationality regime. Offers by Australia to pay for the costs of a life sentence of some of its citizens who had been sentenced to death in Indonesia for drug trafficking were met with a stinging rebuke from Indonesia, which saw this as a way of eviscerating its law.Footnote 26
This is not unlike the concern in international criminal law that domestic trials may occasionally be used to “shield” a notorious accused from a sterner international justice, either through a lesser requalification of the act (for example, murder rather than genocide) or through unduly clement sentencing or particularly liberal detention conditions. There is evidence that states are starting to think in terms of horizontal complementarity vis-à-vis each other, and an effort to shield one’s nationals through active personal jurisdiction would be frowned upon.Footnote 27 The issue may be particularly sensitive when the crime is linked to the state of nationality because the accused is its agent and a veritable situation of impunity is suspected. For example, the way in which France granted early release to a French couple accused of sinking a Greenpeace ship (the Rainbow Warrior), which it had agreed to detain, although it did not involve its assertion of criminal jurisdiction, was felt to be highly improper by New Zealand and to compromise the arbitration that bound both states.Footnote 28
NATIONALITY STATE RETICENCE
Although one would imagine that most states would be happy in principle to extend their jurisdiction to their nationals abroad, not all have done so, and the reality is more complex. For example, even in a state that is normally enthusiastic about extending its jurisdiction (including its adjudicative and enforcement criminal jurisdiction) extraterritorially, such as the United States, it has been pointed out that “no general principle exists that United States nationals are liable under United States law for violations of United States law wherever they may be.”Footnote 29 When jurisdiction has been asserted over nationals for their acts abroad, it has often been in ambiguous ways that mix in elements of the principle of protective jurisdiction. This is despite the fact that, in some cases, this voluntary “binding of its jurisdictional hands” has led to the collapse of significant criminal cases that were found to have an insufficient jurisdictional nexus to the United States.Footnote 30 This délicatesse may be surprising and has been superseded for specific offences where the US legislator has indicated that it intended to give extraterritorial effect to certain laws. But, as a default principle, it is deeply felt by courts as a matter of principle and has a long pedigree.
In fact, there are evident costs to exercising criminal jurisdiction over one’s nationals even from the narrow point of view of any given state of nationality. For one thing, it stands to be chronically difficult to maintain criminal adjudicatory jurisdiction that is not matched by any corresponding enforcement jurisdiction. Even assuming other states have no issue with a state exercising its prescriptive jurisdiction over its nationals abroad, criminal cases are heavily dependent on police work and on various coercive measures that will simply not be available in another state’s jurisdiction. If nothing else, cases of offences committed abroad will often require extradition proceedings and almost always a degree of judicial cooperation, which act as significant complicating factors.
This means that, for all intents and purposes, the successful exercise of active nationality jurisdiction will be heavily dependent on cooperation from the host state, which may not be forthcoming either because that state is, in fact, intent on exercising its own jurisdiction over the individual (in which case, it is objectively competing with the state of nationality and may be able to pre-empt its move) or because it does not want to exercise its jurisdiction, possibly because it does not believe the conduct is criminal (thus, diminishing the odds that it will be inclined to extradite). This is true of other forms of extraterritorial jurisdiction but, unlike universal jurisdiction and the complementary operation of the aut dedere aut judicare principle, personality jurisdiction may have to fend for itself, as it were. At any rate, the more the criminal process is dependent on the good will and efforts of the host state, the more the logical conclusion will be that it would be simpler to have it take care of the prosecution itself.
In practice, such challenges are often resolved bilaterally between states or between prosecuting authorities,Footnote 31 so that the conflict of jurisdiction may not be much of a hurdle. But even assuming that extradition and judicial cooperation work, a trial for acts committed abroad will be a challenge even in ordinary circumstances. Witnesses and perhaps victims will have to be flown in; the criminal justice system will be unfamiliar to them, and their context will be unfamiliar to the criminal justice system; it will be difficult to offer them protection on a transnational basis; evidentiary issues will inevitably arise; and the investigative process will be more likely to be challenged by the accused as incompatible with the rights that she or he is entitled to in his or her state of nationality. These technical and principled difficulties are not dissimilar to those that have been experienced by international criminal tribunals operating at a distance from the territory where the crimes were committed, but, at least, these tribunals had the advantage of an intense specialization (both ratione materiae and often ratione loci) as well as certain privileges as a result of their international status (such as the obligation backed by the United Nations Security Council to cooperate with them, the inapplicability of some immunities, and so on).
Even if these hurdles can be overcome, moreover, one must wonder what interest the state of nationality has in providing, in effect, a prosecutorial service free of charge to the territorial state for offences that may not affect it directly. The idea that the state of nationality’s public order is affected by crimes committed by its nationals abroad may seem far-fetched to some. As Alejandro Chehtman has noted,
[t]o put it simply, there seems to be no way in which Spain’s criminal rules being in force require punishing an offender for a robbery she committed in Paraguay, simply on the ground that she happens to be a national of Spain. … [T]he collective interest of individuals in Spain in the sense of security and dignity that criminal laws being in force provide them does not seem to be affected by a robbery in Paraguay. Inhabitants of Spain may feel horrified by a particular crime committed outside its territory by a co-national, but their belief in the system of criminal rules under which they live being in force is not undermined by these offences.Footnote 32
In fact, it is worth noting that even those states of nationality that have the ability to prosecute their nationals may in some cases be quite content with leaving that task to the territorial state. In recent years, this has been the case particularly with suspected terrorists, notably former members of the Islamic State of Iraq and Syria in Iraq, which Western states have been only too happy to abandon to Iraqi jurisdiction because of the perceived security risk, despite the danger that such individuals may receive an unfair trial and be sentenced to death — in effect, “dumping” on the territorial state the chore of prosecuting them.Footnote 33 Iraq, in turn, has offered to actually prosecute the individuals in question in exchange for billions of dollars in payment by the international anti-jihadi coalition. Although this applies to states that could not prosecute their nationals for crimes committed in Iraq even if they wanted to under their existing laws, it also includes states like France that have come under pressure from non-governmental organizations for refusing to exercise their active nationality jurisdiction, if only as a way to save their nationals from the gallows, despite the fact that they could.Footnote 34
Finally, and in a much more liberal vein, it is worth noting that states of nationality may opt, through principle or pragmatism, for a more benign attitude to the crimes committed by their nationals far from home. Contrary to an extensive vision of the applicability of the criminal law that would dominate the lives of nationals even when abroad (as will be studied further in the second part of this article), an inversely liberal position speculates about the possibility that nationals should, in fact, be allowed to exempt themselves from the application of the state’s laws when not on its territory (Glenn Cohen’s “safety valve” argument).Footnote 35 This possibility has been highlighted particularly in relation to medical tourism, where some states may view with relative indifference the fact that their nationals seek services that would be criminal on their territory. From this perspective, a sort of jurisdictional forum shopping by individuals is not seen as inevitable and may even, in an underhanded way, relieve pressure on the state of nationality, as “deviants” practise their trade elsewhere, as it were (states may regulate certain reproductive practices, for example, all the more firmly when they know that their nationals who really desire to access them can do so abroad).
This laissez faire vision is more common than one might expect, with authorities occasionally urged or forced to turn a blind eye to the fact that some of their citizens have availed themselves of services that would be criminal on their territory. It is particularly relevant for offences that do not stand to have significant territorial effects and where the harm can, in a sense, be contained. These relatively lesser offences tend to be ones that do not involve a significant moral fault or a major public interest. For example, the United States, despite its long jurisdictional arm and the war against drugs, will not prosecute US nationals for drug possession abroad (as long as they have no intention to distribute), a relatively liberal approach that is generally welcome.
Perhaps more importantly, it has been said that a certain freedom is worth defending when it comes to “medical tourism.”Footnote 36 Even for offences that are considered grave, the territorial state may simply abdicate before the reality that it will be difficult for it to avoid its nationals seeking prohibited services abroad. This is especially the case when an international legal regime otherwise militates for unhindered mobility. For example, although Ireland long remained domestically adamant that abortion is criminal, litigation gradually made it clear that travel to other states for the purposes of obtaining an abortion was not criminal.Footnote 37 Freedom of movement and “right to travel” considerations proved crucial to making the case that prosecutions in such cases would be excessive.Footnote 38 Cross-border reproductive care has even been defended as a sort of moral pluralist compromise between the wishes of a democratic majority, the needs of minorities (typically women), and the deep moral dissensus (such as it may be) on certain issues such as abortion.Footnote 39
Certainly, the more one disagrees about the criminalization of behaviour in the home state (for example, abortion, same sex marriage, and so on), the more one will be inclined to welcome, objectively, the unwillingness or inability of the state of nationality to prosecute — although, again, this suggests that the problem is the scope of criminalization in the first place rather than, strictly speaking, the scope of transnational criminal jurisdiction. Moreover, the reluctance to criminalize circumvention abortions, for example, whilst on some level turning a liberal blind eye to what could be offences, has been described as hypocritical and wrongly relieving the territorial state of the obligation to provide safe access to abortion services.Footnote 40 Having said that, it remains unlikely that states of nationality will be aloof about their own criminal prohibitions in this way, casually contemplating that their nationals can simply circumvent them by going abroad.
INDIVIDUAL CONCERNS
Finally, it is not inconceivable that prosecuting nationals for crimes committed abroad would raise concerns about the rights and freedoms of such individuals. For one thing, the crimes that the state of origin seeks to prosecute may be based on trumped up charges or be political offences characteristic of an authoritarian regime. States of residence with large diasporic populations have long been wary of states of origin seeking to exercise their criminal law to intimidate or discipline their diasporas. The use of red notices against dissidents, for example, has long been flagged as having a chilling effect on certain groups of exiles. It may be that this is a special case of offences that are in violation of human rights. But even where an offence does not in and of itself pose a particular problem, rights concerns may still arise. The most obvious problem is the situation where one’s national, in fact, has already been prosecuted for a similar crime or on the basis of the same acts by the territorial state. For this person’s state of nationality to prosecute him anew, even though conceivably legal, might involve a violation, if not of the letter, then at least of the spirit of the non bis in idem principle.Footnote 41 Being subject to two jurisdictions as both a national and someone accused of having committed a crime in another territory might, if nothing else, lead to contrary rulings by authorities on each side, leading to a complex situation of uncertainty.
In a recent case that has become a minor motif of tension between Canada and France, a Canadian mother was cleared of murdering her Canadian and French child in Canada following a Canadian investigation, but the disgruntled French husband managed to obtain from the French authorities a reopening of the case, leading, on the basis of French (passive) personal jurisdiction, to a demand for extradition, which Canada, quite exceptionally, then denied.Footnote 42 Nonetheless, there is no reason to think of this as a problem linked specifically to active personal jurisdiction as opposed to an issue of double jeopardy that ought to be addressed on its own terms. More relevantly, it is worth noting that defendants have occasionally — albeit not very convincingly and successfully — sought to argue that the very extraterritorial reach of legislation ran against their fundamental rights. They have sought, notably, to hold their state’s traditional reluctance to extend its jurisdiction extraterritorially against it, essentially arguing that it had become part of their rights. This was the case in R v Klassen, for example, which involved a Canadian pedophile arguing that extraterritorial assertions of jurisdiction violated his section 7 Charter rights.Footnote 43 The Supreme Court of British Columbia rejected the contention flatly, pointing out that the fact that investigative acts had occurred on foreign soil according to foreign laws did not per se violate his right to a fair trial.Footnote 44
Another scenario that might be problematic from a rights point of view is one where the behaviour criminalized by the state of nationality is not criminal in the territorial state. Note that this need not always be problematic. For example, it may very well be that State A criminalizes tax evasion by its nationals regardless of where it is committed, whereas State B, where the defendant allegedly committed the evasion, does not. In such a case, it is hard to see State B complaining in principle given the quite national character of the tax evasion offence, although extradition may be a different matter. But consider the situation where Canada permits the smoking of marijuana, but Korea does not and insists that it will prosecute Korean citizens who are found to have smoked marijuana in Canada. Korean citizens may feel as if the bonds of nationality are extracting a little too high a cost from them, given the fact that their acts seem to concern above all the territory of Canada.Footnote 45
Pushed to the extreme, it is not theoretically inconceivable — although practically quite unlikely — that prosecuting someone for a crime they committed abroad would put them in an impossible situation, one where they would either have to commit a crime in the host country or the nationality country. Imagine a case where “to do something” is a crime in Country of Nationality A, but “to not do something” is a crime in Host Country B. Such a “damned if you do, damned if you don’t” scenario would provide a rare instance where to prosecute the crimes of one’s nationals abroad would not only put them in an untenable situation but also would be inherently problematic from a rights point of view. Although it is difficult to imagine what such a scenario would look like, it is worth pointing out that Ian Brownlie, when reflecting on the basic conditions that would make extraterritorial assertions of jurisdiction legal, indicated that “a principle based on elements of accommodation, mutuality and proportionality should be applied” so that “residents abroad should not be constrained to violate the law of the place of residence.”Footnote 46
More plausibly, nationals who stand to be made accountable before the courts of their state of origin may be put at a comparative disadvantage in relation to other foreign nationals or locals as a result of being “burdened” by their law of nationality. This has long been a discreet concern in relation to foreign bribery laws and the fact that certain nationals are, as a result of the relative jurisdiction-extending zeal of their state, prevented from engaging in conduct that is, in fact, widely tolerated in the territorial state. The inability to “grease the wheel” where others have no such qualms may result in the loss of business opportunities or worse, especially when compounded by a lack of clarity.Footnote 47 For example, this has been a long time complaint of Donald Trump who, in a 2012 interview, lambasted the US Foreign Corrupt Practices Act as a “horrible” and “ridiculous” law that makes the United States “the policeman of the world.”Footnote 48 A nationalist conception of criminal jurisdiction, in fact, might see the prosecutions of nationals for their crimes abroad as being cavalier with the national interest and essentially too subservient to the territorial state’s interests.
Aside from the ways in which potential defendants may be affected by the criminal jurisdiction of their state of nationality, it is also the case that extraterritorial jurisdiction in some cases may have negative effects on territorialized victims.Footnote 49 All other things being equal (and as we shall see, the point may be that they rarely are), an assertion of jurisdiction by the state of nationality is one that is often going to subtract the suspect from the operation of the local criminal justice system. This means that what trial there is will often occur at a distance, both literal and symbolic. Even if the nationality country is victim friendly and ensures that the victim has a voice in the trial, she will still have to travel to a distant and unfamiliar place to witness a trial that she may struggle to understand.
Possible Rationales for the Extension of the State’s Active Nationality Jurisdiction
Having set out the case against extraterritorial jurisdiction based on the nationality of the offender, it becomes apparent that the hurdles to overcome are quite significant. A case for extraterritorial personal jurisdiction can probably be made out on pure legal and legal policy grounds, detached from policy or normative justification.Footnote 50 As is often pointed out, for example, assertions of active personal jurisdiction were historically spurred less by a fundamental and principled case for them than by the need to remedy the fact that certain states do not extradite their nationals (for whatever reason). This created an enforcement gap that was then remedied by states developing active personal jurisdiction. Normatively, however, the idea that extraterritorial jurisdiction flows from the impossibility of extradition tends to put the cart before the horse: it does not tell us in particular why one should go out of one’s way to bring a corrective to the absence of extradition or why solving the extradition issue itself should not be the priority. Moreover, as we will see, these sorts of remedial arguments hardly have a motor role in legislative debates (as opposed to judicial rationalizations). Extraterritorial assertions of jurisdiction over nationals have almost never been adopted merely because “it makes legal sense.”
In fact, the register of justification employed by various policy-makers reveals that deeper criminological and international concerns have pride of place. These include: (1) the notion that crimes committed abroad by nationals often have direct or indirect impacts on the country of nationality; (2) the idea that states owe it to other states to discipline their nationals who commit crimes on their territory; and (3) the argument that prosecuting one’s nationals is part of the protection of certain international public goods. These rationales will be assessed critically in the rest of this part. It is worth bearing in mind that there also exists a systemic element at work: states should be ready to live with the consequences of whatever extraterritorial policy they devise as it might be adopted by other states in regard to offences committed on their territory.
THE INTEREST OF THE STATE OF NATIONALITY
Geoffrey Watson, the author of one of the leading contemporary treatments of active nationality jurisdiction, has noted that the United States “relies on a system of deference to foreign prosecutions,” but he has pointed out that this system “works well when a foreign prosecution actually takes place. The system does not work, however, when a foreign state fails to prosecute the offender.”Footnote 51 As Watson points out, the host state may simply be unable or unwilling to prosecute the individual in question, and he uses language that is quite reminiscent, for example, of the complementarity regime of the International Criminal Court (ICC). The inability may result, for example, from the fact that the individual has fled back to his country of nationality, which then (for whatever reason) refuses to, or cannot, extradite him; or from the fact that the individual has diplomatic immunity in the host state. The ensuing situation is thus one where the state that would have jurisdiction does not have custody, and the state that could have custody does not have jurisdiction. This is certainly not an optimal situation from the point of view of criminal law enforcement. It may create a significant deterrence gap.
The problem, however, is that this does not in and of itself clarify why the enforcement of the territorial state’s criminal law abroad should matter, especially despite all of the arguments in the previous part about the costs and challenges of extraterritorial jurisdiction. The argument involves a sort of petitio principia, according to which the law should be enforced because the law should be enforced in a context where this is precisely the question. Maybe, as has been suggested, the relative impunity of their nationals abroad is an impunity with which states can and should learn to live. Unless one can connect this impunity specifically to some negative consequence that the state of nationality should care about, assertions that the criminal law must be enforced simpliciter may fall flat.
What is required, instead, is to ascertain whether the extraterritorial crime has a sufficient connection to the state of nationality — in other words, some sort of “genuine link.” One Canadian formulation in a case interested in the slightly different issue of extended territorial jurisdiction suggested that there must be a “real and substantial link” to the state of nationality, one that is sufficient at least to compete with the territorial state’s jurisdiction.Footnote 52 In international law, Brownlie has suggested that there ought to be a “substantial and bona fide connection to the subject matter of the case.”Footnote 53 It is likely that this test will be easily satisfied where jurisdiction is exercised vis-à-vis a national. Nonetheless, it may help even in such cases to elucidate properly what kind of “genuine link” states have with their nationals abroad that justifies exercising jurisdiction over them. The link, rather than being general and sentimental (“our citizens”), moreover, must necessarily flow from the goals and objectives assigned to criminal justice within the framework of international law. It can be buttressed by the not altogether unreasonable assumption that whatever these may be — retributive or utilitarian, for example — they do not cease to operate simply because an offence has been committed by a national abroad.
At one romantic and communitarian extreme, one might argue that the state of nationality always has an overarching interest in what its citizens do abroad. A hegemonic concept of active personal jurisdiction would reflect a sort of hubristic retributive version of the criminal law, one in which every crime committed by one’s nationals abroad ought to be punished out of principle lest the state’s moral universe be corrupted. Reflecting a hyper-developed and vengeful sovereign, this was an at least theoretical possibility envisaged early on by John Westlake:
A personal sovereign … may claim to maintain a standard of personal conduct among his subjects, regardless whether the external order which their acts may disturb is that of his or of any other country, and whether the country in which they may act looks on what they do as disturbing its public order at all; and for that purpose he may make his criminal legislation binding on his subjects in all parts of the world.Footnote 54
This was, then, what Westlake described, quite strikingly, as an “intervention on behalf of morality.”Footnote 55 Stripped of international law’s territorially constraining and moderating influence, there is theoretically no limit to the moral outrage of the criminal conscience, on its own terms, as it were. A state may decide to extend its criminal jurisdiction to the souls of all of its citizens, wherever they may be, simply because it cannot countenance them engaging in evil. Moral theorists have occasionally argued that this is only a logical step to take for a state that has come to the conclusion that certain behaviour is immoral and harmful and that seeks to be consistent with such premises.Footnote 56
This is perhaps a little improbable but not entirely unheard of — for example, as already alluded to, South Korea has insisted repeatedly that it will prosecute its nationals who smoke marijuana in countries — notably, Canada — where it is legal to do so, for no apparent reason other than the fact that it seemingly really disapproves of its citizens smoking marijuana anywhere.Footnote 57 A more significant example are the efforts by several states to deploy their criminal law to prevent circumvention health tourism, particularly in the reproductive area (abortion and surrogacy). These efforts are often met with scepticism by commentators who argue that such legislation “should be modest, tolerant and nuanced,” even though it is clear that some states have occasionally felt otherwise.Footnote 58
It is true that there is no reason why territory should always be the main marker of penal jurisdiction (it has not always been) and that a communitarian account of criminal jurisdiction, one emphasizing the primacy of applicability of the criminal law to citizens transnationally, is not impossible.Footnote 59 This kind of extreme penal embrace, however, sits oddly with the instrumental and utilitarian turn in the justification of criminal punishment. If pure retributive theories have long been on the defensive domestically, it stands to reason that they would be even more so in the rarefied and fragmented world of states. As Alejandro Chehtman has noted in a closely related discussion, “[m]ost legal and political philosophers reject these normative arguments as a plausible justification for legal punishment simpliciter. There is nothing in the extraterritorial application of criminal laws that would override these well-established moral considerations.”Footnote 60 Discredited or at least weak arguments certainly do not become stronger merely by being projected transnationally. This is a fortiori the case for the subset of offences that are clearly not mala in se and for which moral repulsion has never been a particularly helpful key.
A somewhat more sophisticated argument in this respect emerges from common law jurisdictions’ exploration of potential rationales for extraterritorial jurisdiction, which has sometimes stressed the bonds of “allegiance” to the state of nationality.Footnote 61 This, however, is a strange terminology. Allegiance has a distinct political undertone, which suggests that it is a particularly apt concept to describe the fact that nationals should not commit certain political crimes such as treason when abroad (crimes that surely are good contenders for extraterritorial jurisdiction given how independent they are from territory even as they stand to significantly affect the state of nationality). In effect, the case law and the literature often seem to point to exactly such offences.Footnote 62 The notion of “allegiance” is less convincing, by contrast, when it comes to ordinary offences that, having been committed abroad, have no obvious a priori consequence in the host state. It is a stretch, for example, to argue that a Canadian national stealing in Congo violates his “duties of allegiance” to Canada, unless one endorses an almost totalitarian conception of what citizenship entails. Arguments born from allegiance may thus merely reinstate the sort of hegemonic retributive urge that we have reason to be doubtful has much place in a defensible system of criminal justice. Moreover, it is unclear that most states care that much about what their citizens do abroad in a context of evident resource limitations.
A related argument suggested rhetorically by Alejandro Chehtman builds on what it might mean to confer a contemporary meaning to the notion of allegiance. Chehtman suggests that one might think of allegiance as involving a “mutual exchange of benefits,” such that, since “the offender receives protection and other benefits from the state of which she is a national, she also has to bear the burdens of her membership to that state.”Footnote 63 Glenn Cohen further develops such an account along liberal Lockean lines, emphasizing how belonging to a nation involves “casting one’s lot with others in accepting the burdens as well as the benefits of identification with a particular community.”Footnote 64 One could be even more specific, as courts occasionally have. As the British Columbia Supreme Court put it: “The nationality principle reflects Canada’s clear interest in taking steps to prevent its own nationals or residents from using the advantages of Canadian nationality and residence to perpetuate the economic and/or sexual exploitation of children in other nations.”Footnote 65 In effect, child sex tourists may be perpetrating their crimes in the territory of another state, but they do use their Canadian wealth and logistics, their very foreignness in faraway lands, and, quite possibly, the protections they may benefit from as nationals of their state (including, if only that, as recipients, for example, of consular assistance)Footnote 66 to further their criminal pursuits. Their “transience” may mean that they are more likely to get away with crime (because they can flee easily) even as their primary links remain with their state of nationality. In other words, they do profit from their nationality to violate the law abroad, in ways that somehow harm their state of nationality.
Moreover, the state of nationality may not be insulated from the consequences of its nationals’ crimes abroad. Medical tourism, for example, may well lead to nationals expecting care if the prohibited health services they received abroad require continued attention, thus putting their state of nationality before the fait-accompli of having to assume certain obligations.Footnote 67 Whatever else one may think of them, abortion, assisted suicide, or surrogacy may all create real-life consequences for the home legal system, which will be solicited to deal with their consequences and recognize them. In some cases, practices engaged in abroad, such as female genital mutilation effected by some diasporas in their country of origin where it is less likely to be criminal, clearly stand to impact the long-term well-being of victims once back in their country of nationality.
Another related argument is that the crimes of one’s nationals may compromise relations with the host state because they somehow implicate the state of nationality. This may be true of a very specific subset of crimes. This is what one study referred to as “controlling the public face of Canada,” albeit primarily in relation to agents of the state.Footnote 68 By extension, one might consider that a state’s image stands to be impacted by the noxious behaviour of its nationals abroad, especially when that behaviour can be traced back to key aspects of that country’s identity. For example, British hooliganism during football matches on the European continent has occasionally appeared to be a thorn in foreign relations, prompting calls for the United Kingdom to more aggressively police it from home. It may also be true in particularly sensitive and bilateral contexts where certain foreign states, notably capital exporting and investing ones, need to ensure that they are not perceived as disruptive or harmful in the territorial state. Hence, efforts to combat foreign bribery can be understood as a signal sent to host countries that nationals of the sending country and their corporations, private as they may be, will abide by certain standards. Bob Dechert, parliamentary secretary to the minister of foreign affairs, argued in the Canadian Parliament, for example, that “[i]f adopted, the amendments I have just described would clearly and unequivocally demonstrate to interested parties in Canada and abroad that corruption is simply not the Canadian way of doing business, nor should it be the way of doing business anywhere.”Footnote 69
Nonetheless, most crimes committed by nationals abroad would not poison bilateral relations in this way. It is unlikely that theft by a Canadian in Congo will show Canada as a country in a particularly bad light — surely, the Congolese authorities and public will make the difference between a wayward citizen and the state itself. What may strain relations is sometimes not the crime itself but, rather, the fact that an individual, having escaped, cannot be extradited back to the country where he committed his crime. As I have argued above, however, this is not a primary, as much as a remedial, reason to prosecute one’s nationals for their crimes abroad. One exception may be crimes that have a repeated, systematic, and often asymmetrical character and that evidence a real bilateral problem. For example, there are clearly more problems of corporate malfeasance involving Australian mining companies in Papua New Guinea than the reverse or of German child sex tourism in Cambodia than the other way around. When crime becomes part of broader relational patterns with deep economic and political determinants, it may partly escape the default individualism of the criminal law to become an actual international issue. This may then recommend exercising a firmer control over one’s nationals abroad as not only an interesting option for the state of nationality but also a normatively necessary one to maintain good relations.
Finally, another line of argument tries to focus on how, criminologically speaking, crimes committed by nationals abroad might, despite all appearances, have a substantial nexus to the state of nationality. The concern, for example, might be not so much that nationals commit crimes on the territory of other states per se (in a context where we have no reason to suspect the nationality state of altruism) but, rather, that they essentially circumvent domestic territorial prohibitions in so doing.Footnote 70 The suggestion is that there is something particularly perverse about a citizen deliberately bypassing the laws of his country by doing abroad what would be punished as criminal at home; such an example — picture, for instance, a pedophile returning home and bragging about the behaviour he got away with in a foreign country — would be particularly corrosive of the domestic rule of law and social objectives of deterrence. It would lead Canada, for example, to become “a safer harbour for those who engage in the economic or sexual exploitation of children,” an outcome that is clearly “antagonistic” to Canada’s sovereign interests.Footnote 71
Medical tourism might also be interpreted as a provocation — playing on the availability of transnational travel to better mock the state’s feeble attempts at enforcing a particular view of the criminal law domestically — one that is likely to put certain criminal prohibitions at home under pressure. The practice by some communities to engage in female genital mutilation of young girls whilst on trips to their country of origin, despite being solemnly prohibited in the country of nationality, may be seen as an affront to the very capacity of the sovereign to lay down the law of the land. After all, what is the point of a prohibition of abortion, female genital mutilation, surrogacy, or assisted suicide (again, whatever one may think of these prohibitions) if all one needs to do is to take the plane to avail oneself of those practices? Furthermore, if nothing else, this sort of circumvention tourism favours the relatively affluent and well connected who can afford it, with potentially negative consequences for social cohesion, and, thus, ought to be combated on the basis of a distributive account of justice alone.Footnote 72 Note also in that respect that gravity matters. Murder by a national abroad is not on a par with smoking pot abroad: the latter may frustrate the state of nationality, but it seems overbearing not to allow one’s nationals to enjoy the relatively innocuous freedoms offered by another state; the former should, by contrast, clearly raise alarm bells for the state of nationality on account of the opprobrium it raises, the predisposition it reveals, and the danger it forewarns.
A continuation of this argument is more criminological and works along the lines of “he who commits a crime abroad is likely to commit one at home.” The idea is that the foreign country may act as a testing ground for crime commission: techniques practised in Cambodia or Thailand, for example, will be used back home. As Alain Giguère put it in the parliamentary debates leading to the adoption of the Canadian Foreign Bribery Bill,
[t]urning a blind eye to Canadians offering bribes abroad is dangerous because once they are back in Canada, the very same Canadians end up bribing Canadian officials. That is the problem: corruption knows no borders. Corrupt people in Libya or in Latin America will be just as corrupt in Canada. … Corruption is a cancer that does not stop at our borders. It insinuates itself into our politics.Footnote 73
Whether that is demonstrably true or not as an empirical matter, it certainly leads to the notion that certain forms of criminality should be nipped in the bud and treated wherever they may have first manifested themselves, lest they come to haunt the country of nationality. Contrary to Chehtman’s dismissiveness of the retro-impact of crimes abroad on the state of nationality,Footnote 74 in a world where crime not only circulates but is also produced by circulation, the scenarios where one feeds into the other cannot be discounted.
Having said that, it is worth noting that the correlation between crime commission abroad and back at home may not be as evident as sometimes suggested: the point may be that certain individuals or corporations would never commit at home the crimes that they commit abroad; that, in fact, weirdly and perversely, their indulging their criminal designs abroad may serve to relatively insulate their home society and perhaps even that, all along, the crime commission abroad may have been part of an international political economy where crimes can and ought to be committed by those in the know. It is not obvious, for example, that SNC Lavalin would have engaged in the sort of brazen bribery of public officials (as distinct from business-to-business bribery) that it engaged in in Libya (lavishing hundreds of thousands of dollars on the son of the dictator), nor is it inconceivable that certain pedophiles, having found an outlet for their perverse instincts abroad, would hesitate to commit offences at home for which they would face much higher risks of prosecution and stiff sentencing. By contrast, in the case of bribery, in particular, the state of nationality may profit (in contracts and jobs obtained) from the rule-of-law misery of a foreign state. In short, societies may, under one particularly limited nationalist view, stand to benefit if not from their nationals committing crimes abroad, at least from them committing crimes abroad rather than at home. The point is evidently not to exalt such a possibility but, rather, to suggest that to compensate for its logical ramifications, one must perforce develop a theory of extraterritorial nationality-based criminal jurisdiction that is not exclusively tied to the interests of the state of nationality, lest that backfire.
THE INTEREST OF THE HOST STATE
A second rationale for extraterritorial jurisdiction could emphasize, by contrast, the interests of the host state itself in the state of nationality exercising jurisdiction over its own nationals. This is clearly inapposite to offences that are only criminal in the state of nationality. For example, the punishment of medical tourism abroad could not possibly be in the interests of the host state, which often positively encourages it. At the very least, though, one might think that the host state has no particular objection to the punishment by the state of nationality of some offences by its nationals. As one US court put it, “[t]he three defendants who were found in New York were citizens of the United States and were certainly subject to such laws as it might pass to protect itself and its property. Clearly it is no offense to the dignity or right of sovereignty of Brazil to hold them for this crime against the government to which they owe allegiance.”Footnote 75
Note that, if anything, it is the assertion of passive personality jurisdiction (where nationals are victims) by the state of nationality, notably as part of what is a long tradition of consular demands for a certain minimal standard by Western states, that has historically elicited the strongest reactions from territorial states.Footnote 76 By contrast, the assertion of active nationality jurisdiction seems a priori less suspicious. After all, the state of nationality is actively pursuing its own nationals for crimes that they can be understood to have committed if not against the host sovereign at least on its territory and in ways that will often be understood to have harmed it. Moreover, the state of residence may have a more positive attitude towards prosecutions of certain foreigners where the crime punished is one that is also a crime in the host country. In such a scenario, the efforts of the state of nationality may therefore be conceived as at least supplementing the host state’s sovereignty or public order. It promises to punish one of its own, with no obvious shortfall for the host state.
One could further rationalize this sort of justification by arguing that the state of nationality, in effect, has created a negative externality for the host state and that it needs to “own up for” the behaviour of its expatriates. The state of nationality, in other words, has “exported” a certain degree of crime through what may be its failure to detect criminal behaviour in the individual involved and, more generally, through that individual’s social conditioning in his country. Of course, this is not the same thing as saying that the state of nationality is “responsible” for its nationals in the international law sense, which would only be the case exceptionally if they were its de jure or de facto agents. But, from a criminological and penal point of view, it stands to reason that nationals’ criminal behaviour will probably have been significantly shaped by their country of nationality upstream and may stand a better chance of being corrected in that same country downstream.
Some explanations for active nationality jurisdiction gestures in this direction are warranted. For example, Lloyd Axworthy, then the Canadian minister of foreign affairs, argued in Parliament that
[i]t has been documented by national revenue that Canadian citizens go abroad to take advantage of children in other countries. The Sri Lanka and Philippine governments have reported arrests of Canadian residents in relation to such offences. During foreign investigations Canadians have been identified as being members of international pedophile networks. As a result we think it is very important that Canada take some responsibility for these kinds of actions. Footnote 77
Similarly, it has been suggested that “it would be an embarrassment to have Canadian nationals as combatants against Canada’s allies” and that this alone justifies criminalizing foreign enlistment in Canada.Footnote 78 A contrario, it might be argued that the state of nationality that refuses to endorse the responsibility of prosecuting crimes committed by its nationals essentially passes on the burden of punishing such individuals to the territorial state. It may do so, moreover, in a situation where the other state may not be exactly scrambling to assert its jurisdiction because to do so will come at significant costs. This tendency has often been criticized as denoting a form of abdication of responsibility to other states.Footnote 79
By contrast, one occasionally encounters a sense of noblesse oblige towards the host state, of correcting the harm that one has created. Defences of extraterritorial jurisdiction over nationals in the context of sex or corporate crime are often framed in this way. One member of the Canadian Parliament went as far as to suggest that: “We need to put forward legislation in Canada to protect people in other countries from Canadian companies.”Footnote 80 Quite strikingly, then, the state of nationality is expressing awareness of the danger that its nationals create for external constituencies. The idea is that, effectively, the state of nationality should offer a prosecution service for crimes that it may occasionally be better able to prosecute at home and that stand to harm others at a distance because these are the fault of its own nationals. One can fold such justifications under a broader understanding of comity, which can be seen as a tool that either declines to exercise jurisdiction (when that would encroach on the prerogatives of another state) or does so positively (when impunity in the territorial state would otherwise ensue).Footnote 81 As Justice Gérard La Forest put it in Libman v The Queen, “[i]n a shrinking world, we are all our brother’s keepers.”Footnote 82 In theory at least, the territorial state should have no issue with such benign and benevolent comity based on the assertion of extraterritorial jurisdiction.
The notion that extraterritorial national jurisdiction is being implemented for the benefit of the host state, however, needs to be nuanced as being secondary to states’ actual justifications. Increasingly, rather than appealing to that state’s interest, the desire to assert jurisdiction over one’s nationals is framed as a form of direct solicitousness for victims, effectively bypassing the discourse of inter-state comity, especially in a context where the host state is understood not to be particularly victim friendly. “We” owe it to victims abroad to prosecute our nationals who are responsible for their torment. Civil society groups, for example, have long emphasized the harm inflicted on children and certain societies by the tourism of Canadian pedophiles. In such cases, the underlying suggestion seems to be that care for victim rights must trump host state inertia.Footnote 83 The appeal to victims may therefore also be a way of bypassing the territorial state, and even undermining it, rather than a form of solidarity towards its sovereignty. Indeed, this sort of noblesse oblige argument does not escape the suspicion that it echoes earlier and current imperializing tropes — that it is suffused with negative assumptions about the domestic criminal justice systems of “other” states.Footnote 84
The emphasis by states of nationality, moreover, is no longer based strictly on the nationality of the culprit but on a universal sense of responsibility towards victims. The nationality of the culprit, in other words, is not as normatively decisive; it is just what allows a foreign state to intervene validly under international law but in the service of what is a universal design. The suggestion is that this sense of compassion towards victims is really the trigger and that it would otherwise (if the state could) be exercised towards any victim and therefore against any perpetrator (that is, including, perhaps, perpetrators who are not even nationals of the state exercising jurisdiction). In other words, this form of justification cleaves very closely to universal jurisdiction, even though it may be cloaked in the garb of active nationality jurisdiction.Footnote 85 For some authors, this dooms it as a theory of extraterritorial nationality-based jurisdiction since, in that case, states should want to exercise jurisdiction against residents or even anyone passing through their territory rather than just nationals.Footnote 86 Perhaps, though, one can agree that in this case extraterritorial nationality jurisdiction is a compromise between what states hypothetically want (prosecute anyone or anyone with a nexus to certain crimes that affect certain universalized victims) and what states can, under international law, actually do without being accused of encroaching on another state’s sovereignty (prosecute, within that larger aspirational group, the subset that is their nationals and over whom it has long been recognized that they may exercise jurisdiction). In short, claims that one is serving the interests of the host state, whilst occasionally correct, may appear unduly intrusive and not be taken that seriously by states of nationality.
THE INTEREST OF THE INTERNATIONAL COMMUNITY
The third rationale for nationality jurisdiction paradoxically goes further than the invocation of “victims” to thoroughly “denationalize” itself. It de-emphasizes either the interest of the state of nationality or the host state to focus on something above both, in the nature of an international interest. According to Watson, such a justification “rests on the conviction that the international community has a collective interest in deterring crime. Consequently, the international community has an interest in ensuring that serious offenders do not escape prosecution when the host state wishes to prosecute but cannot do so.”Footnote 87 This is an intriguing and ambiguous affirmation. When it comes to certain domestic crimes, it is hard to see that the international community would have an unmitigated interest in combating impunity. For example, certain offences may be entirely idiosyncratic, or culture specific, or even, for that matter, incompatible with certain tenets of international human rights law. The international community should either be indifferent to the enforcement of those national crimes or hostile to it. It is therefore not entirely plausible that there is a collective interest of the international community in deterring crime lato sensu. Certainly, when it comes to international discussions on impunity, those have been concerned mostly with international crimes rather than crimes in general. Of course, when it comes to such international crimes (war crimes, genocide, crimes against humanity, and so on), there is very little doubt that states are not only allowed to exercise active nationality jurisdiction given the permissibility of universal jurisdiction anyhow (“qui peut le plus peut le moins”) but also positively encouraged to do so through the aut dedere aut judicare principle.
Moreover, all other things being equal, the international community, as a community of states, also has a broad reluctance towards impunity for a broader set of transnational crimes. This could be because of the naturally cross-border element in such crimes and, therefore, the need for repression to adopt an extraterritorial dimension. In British debates on anti-bribery legislation, for example, Lord Williamson of Horton pointed out that “[t]he Bill has an extra-territorial application. In general, I do not like extra-territorial application but bribery is perhaps one of the clearest examples of potential offences that cross the territorial divide.”Footnote 88 Aside from that cross-border element, transnational crimes undermine states’ coexistence and certain shared international values. That would be particularly the case of offences of a transnational nature that specifically abuse the existence of the international system, such as trafficking offences, certain offences against the environment, corruption, and so on.Footnote 89
Indeed, a considerable part of transnational criminal law is devoted, through a series of so-called “suppression conventions,” to solidify a common system of repression of certain crimes. These treaties make it clear that states not only can, but should, repress those crimes. The repression of sex tourism, for example, whatever may be the perfectly valid domestic reasons to do so, did not come about only or even primarily as a result of unilateral national moves; rather, it is the product of such international instruments as the United Nations Optional Protocol on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. Footnote 90 The combination of national and international moves on such issues reflects the attenuation of the distinction between domestic and international legal orders,Footnote 91 in ways that make the assertion of active personality jurisdiction both less parochial vis-à-vis the territorial state and less foreign when it comes to the state of nationality. Indeed, one may further justify the interest of each state in repressing the crimes of its nationals abroad as lying in a mutual expectation that, in fact, other states will do the same, given a chance. In short, the internationalization and the transnationalization of criminal law have fundamentally modified the authority of the state of nationality to criminalize extraterritorially — from a form of unilateralism that needs to be heavily justified lest it offend the territorial state to the best expression of a desire to comply with multilateral wishes.
Moreover, it is worth noting that recent work in international criminal law has questioned its specificity, suggesting that the state’s interest in punishing its nationals for their crimes abroad is not limited to a subset of international or transnational crimes.Footnote 92 Especially with the rise of broad investigative and prosecutorial obligations under human rights law, it has been suggested that there are few areas of domestic criminal law that are left untouched by international law and that, in fact, cannot be seen as largely mandated by it.Footnote 93 This means that, for example, although murder is far from being an international crime stricto sensu, something would clearly be amiss in terms of the internationally guaranteed right to life if a state were to licence murder or, more realistically, to not do its utmost to protect the right to life of persons within its jurisdiction. This would then legitimize the intervention of the state of nationality, at least in cases where the territorial state defaulted, for whatever reason, on prosecutions.
Glen Cohen has made this argument by drawing on the extreme, but not entirely implausible, hypothetical of what he describes as “Murder Island,” an island state in which murder is authorized. As Cohen insists, rightly in my view, the nationality state should extend jurisdiction to its nationals who take advantage of a trip to Murder Island to kill someone even if Murder Island lacked the prohibition of murder based on a “different, benign, religiously motivated view of murder.”Footnote 94 The state of nationality, in other words, does not have a presumptive duty to bow to some extreme foreign understanding of the criminal law on the basis of comity. Deference to the world’s pluralism certainly does not stop it from prosecuting its nationals for crimes that it considers grave, especially if those crimes can be subsumed under a broad concept of international human rights law. Given international human rights law’s commitment to the centrality of the right to life and, indeed, the frequent condemnation of states for taking insufficient steps to prevent the loss of life, let alone homicides, a state, a fortiori, that condoned murder would seem to violate basic human rights tenets.
In short, even if states did not have their own ample reasons for wanting to repress murder (which they mostly do), international law would want them to do so. As a result, a state that seeks to punish murders committed by its nationals is surely not doing something that runs afoul of international law, even if a particular territorial state adamantly did not want those murders to be prosecuted. International human rights law helps tip the balance in favour of the justifiability of the state of nationality’s interest in extending its jurisdiction; the state is no longer alone in exercising jurisdiction over its nationals but is merely doing the international community’s bidding. As Benjamin Perrin has incisively argued, the international interest in punishing certain crimes flips the meaning of comity, from deferring to the sovereignty of other states (and, presumably, their interest in protecting a certain exclusivity of their territorial jurisdiction) to deferring to the insistently expressed interests of the international community.Footnote 95
Outside specific international crimes, it is true that international instruments do not go as far as to mandate the exercise of active personal jurisdiction, mindful probably of the fact that this may run against the cultural and constitutional grain of some states. For example, the Optional Protocol to the Convention on the Rights of the Child merely states that “[e]ach State Party may take such measures as may be necessary to establish its jurisdiction. … [w]hen the alleged offender is a national of that State.”Footnote 96 But in insisting in a largely redundant way (states would have that power even if the protocol did not “give it” to them) that states which can exercise such jurisdiction should seriously consider doing so, the treaty does take a step towards making nationality jurisdiction highly desirable from the point of view of certain international law goals.
In some cases, in fact, the trend among certain scholars is to consider that, even absent a specific conventional obligation to that effect, there is a self-standing human rights obligation to assert active personal jurisdiction. Olivier De Schutter, for example, writing more generally about extraterritoriality, notes:
L’on s’interroge habituellement sur la licéité, en droit international, de l’exercice par un État de sa compétence extraterritoriale. Mais au-delà de cette question à présent presque classique … figure la question de savoir si l’État d’origine de la société transnationale n’est pas tenu, en vertu du droit international des droits de l’homme, d’exercer ce contrôle, et de garantir la possibilité de cette réparation.Footnote 97
For De Schutter, the fact that both the territorial and the national state are increasingly bound by the same international human rights standards minimizes the risk that the latter will be seen as interfering in the affairs of the former. In effect,
l’État qui exerce une compétence extraterritoriale en vue de contribuer au respect universel des droits de l’homme internationalement reconnus s’inscrit dans une forme de solidarité internationale : quels que soient les motifs qu’a l’État territorial de ne pas garantir le respect des droits de l’homme sur son territoire … le fait pour un État étranger de contribuer, par l’adoption d’une législation ayant une portée extraterritoriale, à … permettre que des poursuites soient entamées contre les responsables de telles violations, peut être présenté comme une manière de faciliter le respect, par l’État territorialement compétent, des obligations qui lui sont imposées en vertu du droit international des droits de l’homme.Footnote 98
This could be seen as a continuation of the long-term movement to extend “duties to protect” in human rights, except henceforth reaching for a sphere beyond the state and enlisting the long arm of the criminal law. Certainly, the fact that the criminalization of certain behaviour is mandated by international law has been understood to reinforce the case for active national jurisdiction. It allows states to present themselves as being involved in a broad movement of solidarity towards certain common goals,Footnote 99 but in a way that is buttressed by an indisputable link of nationality. The fact that the real import of bribery has increasingly been defined in terms of human rights violations and harming the poorest (rather than merely upsetting the market-level playing field or upsetting fellow states), for example, has also promoted efforts to punish it on an extraterritorial basis.Footnote 100
This has, in fact, led a number of states that do not normally countenance active nationality jurisdiction to do so exceptionally, precisely on account of the human rights-affecting character of certain crimes (for example, anti-sex tourism legislation in the United States and Canada). Similarly, countries that impose conditions on the exercise of active personal jurisdiction have removed them in the case of offences with a clear transnational character (for example, although France requires dual criminality before exercising active nationality jurisdiction, it allows prosecution even in the absence of territorial state criminalization in the case of sexual offences committed against minors under the age of fifteen).Footnote 101 One can thus see international human rights law’s universalism increasingly turning the otherwise quite sovereignty-oriented active nationality principle in a much more cosmopolitan direction.
Conclusion: Horizontal Complementarity and Active Nationality Jurisdiction
Although it is certainly too early to herald the rise of nationality over territorial jurisdiction in criminal law,Footnote 102 we are certainly witnessing a move by states to more aggressively assert jurisdiction over their nationals abroad, at least when it comes to certain offences. States of origin increasingly seek to extend their jurisdictional tentacles to control the lives of their citizens abroad.Footnote 103 This is consonant with a world marked by increasing mobility and the potential it creates for “crime abroad.” It also chimes well with the presence of large émigré, expatriate, and diasporic populations that nonetheless maintain consistent personal, political, and, indeed, juridical links to their state of origin. In such circumstances, the state of nationality is less easily suspected of harassing its nationals and intruding on the sovereignty of its sovereign peers, given the obvious connections between the “here” and “there.”
The phenomenon of extraterritorial assertions of jurisdiction over nationals also sheds light on the pivotal role of the state in enforcing criminal law: no longer merely the guardian of its territory but also acting as a sort of guarantor of its nationals abroad via its criminal law whether for its own sake, the host state, or in the name of international values. As such, the contemporary relevance of active nationality jurisdiction suggests a system that is reconciled with both the declining primacy of territory and the possibility of jurisdictional overlap.Footnote 104 Indeed, active personality jurisdiction has gone from being defended on largely remedial grounds as a sort of second best to close the impunity gap to something that is endowed with its own irreducible legitimacy.
There is no doubt in this context that, under the broad umbrella of what is permissible under international law, criminal jurisdiction is a site of convergence between different legal traditions that increasingly have to cope with the consequences and challenges of global mobility and transnational crime. In this context, common law countries have been somewhat more affected by change than their continental counterparts: whereas the latter already have exercised active personal jurisdiction for their own historical reasons, the former have been prompted by the increasingly penal orientation of international law to adapt to changing circumstances. Nonetheless, this article has suggested that both common law and civil law systems, under the influence of international law and human rights, are increasingly alike in how they repress certain crimes committed by their nationals abroad. In the process, the rather contingent nature of the association between common law countries and non-assertion of active nationality jurisdiction has been exposed, so much so that some commentators would see no problem with the United Kingdom, for example, embracing a broad principle of nationality jurisdiction.Footnote 105 This, then, is yet another area where the famed opposition between common law and continental systems is being reduced to very little under the pressures of internationalization and globalization.
As has been seen, this phenomenon must be seen in the broader context of the internationalization of criminal repression. The prosecution of many crimes committed extraterritorially is no longer simply tolerated but also encouraged and even mandated by international law, be it because they affect key international community interests, have a cross-border element, or implicate human rights. Active nationality jurisdiction may not have the special status in international law that universal jurisdiction does, but its rationales increasingly overlap with it, and it may well be closer to it than to the more parochial territorial jurisdiction. This is all the more so now that universal jurisdiction itself has tended, inversely, to reground itself in territory.Footnote 106 Active nationality jurisdiction expresses a renewed urge to punish certain crimes regardless of their location, although not, as in universal jurisdiction, regardless of their nationality. This confers on it a somewhat intermediary status: both cosmopolitan and provincial, goal oriented and sovereignty constrained. Increasingly, the “substantial link” with an offence committed by a national abroad may be provided, on the one hand, by the offender’s nationality but, on the other hand, by a recognition that international law actually requires the state of nationality to extend its jurisdiction, such that the territorial state should have little reason (or at least, excuse) to complain.Footnote 107
Indeed, when it comes to some of the gravest international crimes, although the importance of universal jurisdiction has been almost universally stressed, trials are, in practice, just as likely, if not more so, to be based on active nationality jurisdiction.Footnote 108 Consider, for example, Germany’s willingness to prosecute German Nazis over the decades for crimes many of them had committed abroad; or the fact that, of the many jurisdictional options available at the Rome conference that led to the creation of the ICC, the formula retained was one that gives the court jurisdiction over crimes committed in the territory of states parties or by their nationals (the passive personality principle was not included, let alone universal jurisdiction as a pre-condition to jurisdiction); or the inclusion within the Convention against Torture,Footnote 109 the Convention on Enforced Disappearances,Footnote 110 or the International Law Commission’s draft Articles on Crimes against Humanity of an obligation to assert jurisdiction over one’s nationals for such crimes.Footnote 111 In many ways, active nationality jurisdiction does more work, in the background, than the aesthetically striking, but practically exceptional, principle of universal jurisdiction.Footnote 112
The argument that active nationality jurisdiction is in the interest of the state of nationality, in this context, is a relatively strong one, especially when the territorial state does not intend to prosecute; the idea that it is in the interest of the host country for prosecutions to be undertaken by and in the state of nationality can be farfetched, but it can also reflect the reality of resource allocation, opportunity, and, increasingly, shared goals. In short, it is this article’s conclusion that no case can be made that nationality jurisdiction, adjudicative or even prescriptive, should always or never be asserted; rather, whether such a jurisdiction should be exercised will depend on a range of circumstances that may make the state of nationality the most opportune forum in a particular case. This, in turn, will involve something akin to the weighing of jurisdictional priorities characteristic of private international law.Footnote 113
One of the key challenges, then, is devising ways in which personal and territorial state jurisdictions can be articulated, incorporating the legitimate interests of defendants and the international community in the process. For example, under a previous version of the Canadian sex tourism law, prosecution would only have been undertaken in Canada if the territorial state consented to it.Footnote 114 This was repealed as possibly going too far, effectively granting a veto to territorial states on prosecutions that the state of nationality might want to engage in for its own reasons and that are increasingly recommended by international law. But it does point to the importance of active nationality jurisdiction not being a unilateral move as much as one whose potentially hegemonic and rights-eroding effects are compensated either by the agreeability of the host state or by the licence of the international community. In effect, the French legal regime surrounding surrogacy anticipates that it will not be prosecuted if legal in the foreign country in which it is undertaken.Footnote 115 By contrast, “clearly when many states have agreed on a joint solution to a shared problem, there is no threat to comity in acting in accordance with that agreement.”Footnote 116
On the other hand, it may be that the reality of a prosecution in the territorial state should give pause for thought to enthusiastic asserters of nationality jurisdiction. Although the principle of complementarity is most often thought of in the vertical context of international criminal tribunal to domestic court, it may have a role to play in the horizontal context of domestic court to domestic court.Footnote 117 Just as complementarity in the “vertical” ICC regime defers a priori to domestic jurisdiction, it might be seen to defer a priori to the territorial state’s jurisdiction “horizontally” as having a certain pride of place. The inability or unwillingness of the territorial state to prosecute certain crimes, depending on the character or gravity of the crime, might be understood as either falling within its sovereign discretion or needing to be overcome by the nationality state’s intervention. The more a crime is connected to an international interest — one that is shared, moreover, by both states (as evidenced, for example, by having ratified the relevant international instruments) — the less the nationality state will be suspected of unduly foisting some preference on the territorial state by prosecuting its own; the more idiosyncratic and “un-shared” the crime, by contrast, the more the state of nationality should exercise caution before it invokes its jurisdiction because it will not be able to present itself as substituting for the territorial state’s default.
In sum, thinking about active nationality jurisdiction may help to frame the contours of an international interest in defeating impunity that transcends the relatively narrow realm of international or even transnational crimes. It needs to be part of a broader reflection questioning the international law of jurisdiction as it has evolved in recent decades.Footnote 118 In the conventional view, criminal jurisdiction is seen as emanating from the entrails of sovereignty and taking advantage of international law to extend its reach through extradition and judicial cooperation procedures. International law has a role in merely recognizing and facilitating this process. A particularly ambitious normative theory, by contrast, might suggest that such penal functions are granted to the state and exercised on behalf of the international community in the first place.Footnote 119 In not allowing crime to fester — either on its territory or, increasingly, by its nationals — the state is discharging a minimal penal obligation under international law to maintain order and justice, with a view to minimizing crime generally — not only on its territory, of course, but also abroad. In this more cosmopolitan view, international law comes first and, looking downward as it were, mandates that the criminal law be used for the benefit of certain international goods, be they the maintenance of peaceful coexistence, the protection of basic human rights, or solicitude for victims of crime. Active personal jurisdiction has much more of a place in this perspective, which emphasizes servicing international regulatory interests and protecting shared values, than under a vision, for example, of the sovereign’s Gargantuan appetite for the control of its citizenry.
