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{{Short description|Concept in |
{{Short description|Concept in international relations}} |
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{{see also|Extraterritoriality}} |
{{see also|Extraterritoriality}} |
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{{redirect|ETJ|the defunct airline|East Air}} |
{{redirect|ETJ|the defunct airline|East Air}} |
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'''Extraterritorial jurisdiction''' ('''ETJ''') is the legal ability of a [[government]] to exercise [[authority]] beyond its normal boundaries. |
'''Extraterritorial jurisdiction''' ('''ETJ''') is the legal ability of a [[government]] to exercise [[authority]] beyond its normal boundaries. |
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Any authority can claim ETJ over any external territory they wish. However, for the claim to be effective in the external territory (except by the exercise of force), it must be agreed either with the legal authority in the external territory, or with a legal authority that covers both territories. When unqualified, ETJ usually refers to such an agreed jurisdiction, or it will be called "claimed ETJ" |
Any authority can claim ETJ over any external territory they wish. However, for the claim to be effective in the external territory (except by the exercise of force), it must be agreed either with the legal authority in the external territory, or with a legal authority that covers both territories. When unqualified, ETJ usually refers to such an agreed jurisdiction, or it will be called something like "claimed ETJ". |
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The phrase may also refer to a country's laws extending beyond its boundaries in the sense that they may authorise the courts of that country to enforce their jurisdiction against parties appearing before them in with respect to acts they allegedly engaged in outside that country. This does not depend on the co-operation of other countries, since the affected people are within the relevant country (or at least, in a case involving a person being tried ''[[Trial in absentia|in absentia]]'', the case is being heard by a court of that country). For example, many countries have laws which give their criminal courts jurisdiction to try prosecutions for [[piracy]], sexual offences against children, computer crimes and/or [[terrorism]] committed outside their national boundaries. Sometimes such laws only apply to nationals of that country, and sometimes they may apply to anyone. |
The phrase may also refer to a country's laws extending beyond its boundaries in the sense that they may authorise the courts of that country to enforce their jurisdiction against parties appearing before them in with respect to acts they allegedly engaged in outside that country. This does not depend on the co-operation of other countries, since the affected people are within the relevant country (or at least, in a case involving a person being tried ''[[Trial in absentia|in absentia]]'', the case is being heard by a court of that country). For example, many countries have laws which give their criminal courts jurisdiction to try prosecutions for [[piracy]], sexual offences against children, computer crimes and/or [[terrorism]] committed outside their national boundaries. Sometimes such laws only apply to nationals of that country, and sometimes they may apply to anyone. |
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==Terminology== |
==Terminology== |
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{{unclear|1=section|date=December 2021}} |
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Some confusion has arisen |
Some confusion has arisen to the meaning of 'extraterritorial jurisdiction'. In its widely-used application, the term refers to where criminal acts were committed outside the sovereign territory of a prosecuting state. A possible ambiguity has been noted by [[Cedric Ryngaert]], Professor of Public International Law and Head of the Department of International and European Law at Utrecht University, who notes that a state asserting jurisdiction over crimes committed in other jurisdictions would still prosecute in the state's own territorial courts.<ref>{{cite book |last=Cormier |first=Monique |chapter=3 - Delegation of Jurisdiction: The Concepts |title=The Jurisdiction of the International Criminal Court Over Nationals of Non-States Parties |date=2020 |page=63 |publisher=Cambridge University Press |doi=10.1017/9781108588706}}</ref> |
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==Cases of exercised jurisdiction== |
==Cases of exercised jurisdiction== |
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Extraterritorial jurisdiction plays a significant role in regulation of transnational [[anti-competitive practices]]. In the U.S., extraterritorial impacts in this field first arose from ''[[Standard Oil Co. of New Jersey v. United States]]'',<ref>''The Standard Oil Company of New Jersey, et al. v. The United States'', 221 U.S. 1; 31 S. Ct. 502; 55 L. Ed. 619; 1911 U.S. LEXIS 1725</ref> where [[Imperial Oil]] in [[Canada]] was ordered to be divested from [[Standard Oil]]. Current practice dates from ''[[United States v. Alcoa]]'',<ref>''United States v. Aluminium Company of America (Alcoa)'' 148 F.2d 416 (2d Cir. 1945)</ref> where the ''effects doctrine''<ref>[https://ssrn.com/abstract=1099485 A. Parrish, 'The Effects Test: Extraterritoriality's Fifth Business' (2008) 61 Vand. L. Rev. 1455]</ref> was introduced, allowing for jurisdiction over foreign offenders and foreign conduct, so long as the economic effects of the anticompetitive conduct are experienced on the domestic market.<ref>JP Griffin, ''Extraterritoriality in U.S. and EU Antitrust Enforcement'' (1999) 67 Antitrust L.J. 159</ref> The effects doctrine has been gradually developed in the U.S. and then in various forms accepted in other jurisdictions, also in the developing world.<ref>[https://unctad.org/system/files/official-document/ditccplp2021d3_en.pdf M Martyniszyn, Developing Countries’ Experience with Extraterritoriality in Competition Law, Report of the United Nations Conference on Trade and Development, UNCTAD/DITC/CPLP/2021/3, December 2021]</ref> In the [[European Union|EU]] it is recognised based on the ''qualified effects'' or ''implementation test''.<ref>[https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3977153 M Martyniszyn, Extraterritoriality in EU Competition Law (in) Nuno Cunha Rodrigues (ed), Extraterritoriality of EU Economic Law (Springer 2021).]</ref> |
Extraterritorial jurisdiction plays a significant role in regulation of transnational [[anti-competitive practices]]. In the U.S., extraterritorial impacts in this field first arose from ''[[Standard Oil Co. of New Jersey v. United States]]'',<ref>''The Standard Oil Company of New Jersey, et al. v. The United States'', 221 U.S. 1; 31 S. Ct. 502; 55 L. Ed. 619; 1911 U.S. LEXIS 1725</ref> where [[Imperial Oil]] in [[Canada]] was ordered to be divested from [[Standard Oil]]. Current practice dates from ''[[United States v. Alcoa]]'',<ref>''United States v. Aluminium Company of America (Alcoa)'' 148 F.2d 416 (2d Cir. 1945)</ref> where the ''effects doctrine''<ref>[https://ssrn.com/abstract=1099485 A. Parrish, 'The Effects Test: Extraterritoriality's Fifth Business' (2008) 61 Vand. L. Rev. 1455]</ref> was introduced, allowing for jurisdiction over foreign offenders and foreign conduct, so long as the economic effects of the anticompetitive conduct are experienced on the domestic market.<ref>JP Griffin, ''Extraterritoriality in U.S. and EU Antitrust Enforcement'' (1999) 67 Antitrust L.J. 159</ref> The effects doctrine has been gradually developed in the U.S. and then in various forms accepted in other jurisdictions, also in the developing world.<ref>[https://unctad.org/system/files/official-document/ditccplp2021d3_en.pdf M Martyniszyn, Developing Countries’ Experience with Extraterritoriality in Competition Law, Report of the United Nations Conference on Trade and Development, UNCTAD/DITC/CPLP/2021/3, December 2021]</ref> In the [[European Union|EU]] it is recognised based on the ''qualified effects'' or ''implementation test''.<ref>[https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3977153 M Martyniszyn, Extraterritoriality in EU Competition Law (in) Nuno Cunha Rodrigues (ed), Extraterritoriality of EU Economic Law (Springer 2021).]</ref> |
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Extraterritorial jurisdiction in the area of [[antitrust]] faces various limitations, such as the problem of accessing foreign-based evidence,<ref> |
Extraterritorial jurisdiction in the area of [[antitrust]] faces various limitations, such as the problem of accessing foreign-based evidence,<ref>B Sweeney, 'Combating Foreign Anti-competitive Conduct: What Role for Extraterritorialism?' (2007) 8 Melbourne Journal of International Law 35</ref> as well as the difficulties of challenged anticompetitive conduct arising from foreign state involvement.<ref>[https://ssrn.com/abstract=1782888 M Martyniszyn, Avoidance Techniques: State Related Defences in International Antitrust Cases (2011)]</ref> |
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==Application in specific countries== |
==Application in specific countries== |
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:* relating to [[sexual offence]]s against children |
:* relating to [[sexual offence]]s against children |
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=== |
=== Hong Kong === |
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Article 38 of the [[ |
Article 38 of the [[Hong Kong national security law]], passed in Jun 2020, asserts that the law applies to all persons - regardless of nationality - both inside and outside [[Hong Kong]].<ref>{{Cite web|url = https://www.gld.gov.hk/egazette/pdf/20202444e/es220202444136.pdf|title = Hong Kong National Security Law|access-date = 2020-07-01}}</ref> |
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Crimes covered under the national security law include: |
Crimes covered under the national security law include: |
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:* substantially interfering or obstructing the [[People's Republic of China]] and [[Hong Kong government]] functions |
:* substantially interfering or obstructing the [[People's Republic of China]] and [[Hong Kong government]] functions |
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:* acts of [[terrorism]], defined as including damaging transportation equipment, causing traffic obstructions, or otherwise substantially interfering with the public's health and safety |
:* acts of [[terrorism]], defined as including damaging transportation equipment, causing traffic obstructions, or otherwise substantially interfering with the public's health and safety |
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:* colluding with foreign forces to harm national security, defined as including causing substantial obstruction to the [[People's Republic of China]] and [[Hong Kong government]] policies, controlling elections, seeking foreign [[International sanctions|sanctions]], or inciting hate against the Chinese and Hong Kong governments |
:* colluding with foreign forces to harm national security, defined as including causing substantial obstruction to the [[People's Republic of China]] and [[Hong Kong government]] policies, controlling elections, seeking foreign [[International sanctions|sanctions]], or inciting hate against the Chinese and Hong Kong governments |
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Whether this assertion has legal merit remains to be seen. |
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===Ireland=== |
===Ireland=== |
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====Municipal and state law==== |
====Municipal and state law==== |
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In the [[United States|U.S.]], many [[U.S. state|states]] have [[law]]s or even [[ |
In the [[United States|U.S.]], many [[U.S. state|states]] have [[law]]s or even [[constitution|constitutional provision]]s which permit [[city|cities]] to make certain decisions about the land beyond the town's [[incorporation (municipal government)|incorporated]] limits. |
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:* Examples of states which allow cities to claim ETJ with respect to [[zoning]] or other matters, either generally or prior to [[Municipal annexation in the United States|annexation]], are: |
:* Examples of states which allow cities to claim ETJ with respect to [[zoning]] or other matters, either generally or prior to [[Municipal annexation in the United States|annexation]], are: |
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::* [[Nebraska]],<ref>{{Cite web|url = https://nebraskalegislature.gov/laws/statutes.php?statute=13-327|title = Nebraska Revised Statute 13-327|publisher = State of Nebraska|access-date = 2020-03-31}}</ref> |
::* [[Nebraska]],<ref>{{Cite web|url = https://nebraskalegislature.gov/laws/statutes.php?statute=13-327|title = Nebraska Revised Statute 13-327|publisher = State of Nebraska|access-date = 2020-03-31}}</ref> |
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::* [[North Carolina]],<ref>{{Cite web|url = http://www.cedargroveinst.org/files/incorporation_annex_etj_doublestandard.pdf|title = Incorporation, Annexation and Extra-Territorial Jurisdiction: A Double Standard?|publisher = Cedar Grove Institute for Sustainable Communities|access-date = 2012-08-03}}</ref> and |
::* [[North Carolina]],<ref>{{Cite web|url = http://www.cedargroveinst.org/files/incorporation_annex_etj_doublestandard.pdf|title = Incorporation, Annexation and Extra-Territorial Jurisdiction: A Double Standard?|publisher = Cedar Grove Institute for Sustainable Communities|access-date = 2012-08-03}}</ref> and |
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::* [[Texas]]<ref>{{Cite web|url = https://access.tarrantcounty.com/en/public-health/environmental-health-promotion/ossf/extra-territorial-jurisdiction.html|title = Extra-Territorial Jurisdiction (ETJ)|publisher = City of [[Fort Worth]]|access-date = 2012-08-03 |
::* [[Texas]]<ref>{{Cite web|url = https://access.tarrantcounty.com/en/public-health/environmental-health-promotion/ossf/extra-territorial-jurisdiction.html|title = Extra-Territorial Jurisdiction (ETJ)|publisher = City of [[Fort Worth]]|access-date = 2012-08-03}}</ref> |
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:* In [[California]], county [[Local Agency Formation Commission]]s determine [[spheres of influence]] that cities may exercise over areas outside their boundaries. |
:* In [[California]], county [[Local Agency Formation Commission]]s determine [[spheres of influence]] that cities may exercise over areas outside their boundaries. |
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====Federal law==== |
====Federal law==== |
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# Offenses committed by or against a national of the United States in [[diplomatic mission]]s, [[consulate]]s, military and other missions, together with related residences, outside the US |
# Offenses committed by or against a national of the United States in [[diplomatic mission]]s, [[consulate]]s, military and other missions, together with related residences, outside the US |
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# [[International Parental Kidnapping Crime Act]] |
# [[International Parental Kidnapping Crime Act]] |
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Individuals involved in doping at major international sporting events can be sanctioned by the United States via the [[Grigory Rodchenkov|Rodchenkov Act]] if American companies are involved in sponsoring those events or the American financial system is utilized by the organizers.<ref>{{cite web |title=The United States' Response to the Russian Doping Scandal |url=https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1815&context=sportslaw |website=Marquette Law Scholarly Commons}}</ref><ref>{{cite web|url=https://www.outsideonline.com/health/training-performance/rodchenkov-act-doping/|title=This Could Be a Game Changer in the Fight Against Doping|date=October 13, 2023|author=Ian Dille}}</ref> |
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In order to deal with the issue of [[private military contractor]]s and [[private security contractor]]s being used by U.S. Government agencies overseas, the ''[[Military Extraterritorial Jurisdiction Act]]''<ref>{{usc|18|3261}}</ref> was passed by Congress to subject them to a similar manner of jurisdiction. |
In order to deal with the issue of [[private military contractor]]s and [[private security contractor]]s being used by U.S. Government agencies overseas, the ''[[Military Extraterritorial Jurisdiction Act]]''<ref>{{usc|18|3261}}</ref> was passed by Congress to subject them to a similar manner of jurisdiction. |
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Certain federal property has the status of [[federal enclave]], restricting the application of state laws,<ref>18 U.S.C. §7(3). See [http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm01630.htm United States Department of Justice Criminal Resource Manual § 1630]</ref> but that has been partially rectified by the ''[[Assimilative Crimes Act]]''.<ref>{{usc|18|13}}</ref> Similarly, state jurisdiction is restricted on [[Tribal sovereignty in the United States|Native American tribal lands]]. |
Certain federal property has the status of [[federal enclave]], restricting the application of state laws,<ref>18 U.S.C. §7(3). See [http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm01630.htm United States Department of Justice Criminal Resource Manual § 1630]</ref> but that has been partially rectified by the ''[[Assimilative Crimes Act]]''.<ref>{{usc|18|13}}</ref> Similarly, state jurisdiction is restricted on [[Tribal sovereignty in the United States|Native American tribal lands]]. |
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Generally, the U.S. founding fathers and early courts believed that American laws could not have jurisdiction over sovereign countries. In a 1909 [[Supreme Court of the United States|Supreme Court]] case, Justice [[Oliver |
Generally, the U.S. founding fathers and early courts believed that American laws could not have jurisdiction over sovereign countries. In a 1909 [[Supreme Court of the United States|Supreme Court]] case, Justice [[Oliver Wendel Holmes]] introduced what came to be known as the "presumption against extraterritoriality," making explicit this judicial preference that U.S. laws not be applied to other countries. American thought about extraterritoriality has changed over the years, however. For example, the [[Alien Tort Statute]] of 1789 allows foreign citizens in the United States to bring cases before federal courts against foreign defendants for violations of the "law of nations" in foreign countries. Although this statute was ignored for many years, U.S. courts since the 1980s have interpreted it to allow foreigners to seek justice in cases of [[human-rights]] violations in foreign lands, such as in ''[[Sosa v. Alvarez-Machain]]''.<ref name=cabranes>{{cite journal|last1=Cabranes|first1=Jose|title=Withholding Judgment: Why U.S. Courts Shouldn't Make Foreign Policy|journal=Foreign Affairs|date=21 September 2015|url=https://www.foreignaffairs.com/articles/2015-08-18/withholding-judgment|publisher=Foreign Policy|access-date=3 December 2015}}</ref> In ''[[Morrison v. National Australia Bank]],'' 2010, the Supreme Court held that in interpreting a statute, the "presumption against extraterritoriality" is absolute unless the text of the statute explicitly says otherwise.<ref>[https://www.law.cornell.edu/supct/html/08-1191.ZS.html ''Morrison v. National Australia Bank'' syllabus]</ref> |
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====Economic law==== |
====Economic law==== |
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:* the ''[[International Emergency Economic Powers Act]]'' (especially in the case of [[sanctions against Iran]]) |
:* the ''[[International Emergency Economic Powers Act]]'' (especially in the case of [[sanctions against Iran]]) |
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:* the ''[[Countering America's Adversaries Through Sanctions Act]]'' |
:* the ''[[Countering America's Adversaries Through Sanctions Act]]'' |
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Unlike most nations, the United States also attempts extraterritorial application of U.S. personal tax laws. The [[Foreign Account Tax Compliance Act]] is an extension of this concept, which focuses on enforcement. |
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==See also== |
==See also== |
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* [[Taxation of non resident Americans]] |
* [[Taxation of non resident Americans]] |
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* [[Foreign Account Tax Compliance Act]] (U.S. law) |
* [[Foreign Account Tax Compliance Act]] (U.S. law) |
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* |
*[[Nazis and Nazi Collaborators (Punishment) Law]] |
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* [[General Data Protection Regulation]] |
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==References== |
==References== |
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==External links== |
==External links== |
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*[http://www.echr.coe.int/Documents/FS_Extra-territorial_jurisdiction_ENG.pdf Extra-territorial jurisdiction of ECHR states] - factsheet of ECtHR case law |
* [http://www.echr.coe.int/Documents/FS_Extra-territorial_jurisdiction_ENG.pdf Extra-territorial jurisdiction of ECHR states] - factsheet of ECtHR case law |
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*''[http://www.preventgenocide.org/law/domestic/ Domestic Laws Against Genocide]'' - a comprehensive list of municipal laws criminalising genocide. Many of them include clauses to allow extraterritorial jurisdiction. |
* ''[http://www.preventgenocide.org/law/domestic/ Domestic Laws Against Genocide]'' - a comprehensive list of municipal laws criminalising genocide. Many of them include clauses to allow extraterritorial jurisdiction. |
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{{DEFAULTSORT:Extraterritorial Jurisdiction}} |
{{DEFAULTSORT:Extraterritorial Jurisdiction}} |
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[[Category:Extraterritorial jurisdiction |
[[Category:Extraterritorial jurisdiction]] |
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[[Category:International law]] |
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