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The concept of ‘extraterritoriality’: widely used, but misguided and useless

‘Territoriality’ plays a central role under our current paradigm of jurisdictional thinking. Indeed, a State’s rights and responsibilities are largely defined by reference to territoriality. Consequently, the activities of (for example) courts and law enforcement agencies are typically delineated by territorial reference points. Put simply, States have exclusive powers in relation to everything that occurs within their respective territories, and this right is combined with a duty to respect the exclusive powers of other States over their respective territories.

Given the above, it is only natural that much ink has been spilled over the issue of ‘extraterritoriality’; after all, if conduct and activities can be territorial in some circumstances, they can be extraterritorial in others. And while extraterritorial conduct and activities represent a natural aspect of our modern world, characterised by great mobility and extensive cross-border interactions, extraterritoriality causes tensions in the current legal framework.

Our attempts at structuring our world according to a distinction between territorial and extraterritorial has failed; to mark the difference in this way is to invite confusion, and there are two serious problems with this distinction.

First of all, too often, it is not possible to draw a distinction between territorial jurisdictional claims and extraterritorial jurisdictional claims. Consider, for example, the question of whether a State is exercising jurisdiction over activities occurring outside its territory where it regulates the use of personal information about its citizens stored in a cloud computing arrangement with multi-jurisdictional reach. As Kuner points out beyond the disagreements about its meaning as a legal concept, the term extraterritorial has acquired political baggage that makes its use charged with emotion. Indeed, Ryngaert has concluded that, because the term ‘extraterritorial’ is tainted by pejorative connotations acquired over the years, the term ought to be avoided.

Second, even if we were able to draw a sharp line between jurisdictional claims that are territorial, and those that are extraterritorial, identifying a jurisdictional claim as being extraterritorial tells us little, or nothing, of value. Some extraterritorial claims can be indisputably legitimate and useful, while other extraterritorial claims are equally indisputably illegitimate and excessive. Yet too often the false territorial/extraterritorial distinction is used as shorthand for legitimate (i.e. territorial) claims vs illegitimate (i.e. extraterritorial) claims of jurisdiction. Such oversimplifications are unhelpful and invariably create obstacles for a fruitful debate.

In light of the above, it seems reasonable to conclude that the concept of extraterritoriality, despite the central role it is playing at the moment, is associated with two serious problems; (1) it is not possible to distinguish, in a meaningful way, between what is extraterritorial and what is not, and (2) even if such a distinction could be drawn, it does in fact not tell us anything useful. Put simply, as currently used, the concept of extraterritoriality manages to be both meaningless and useless, at the same time as it causes confusion and hinders a constructive debate.

The question is then to what we should move on. I have expressed the view that we may turn our focus to whether or not a jurisdictional claim has ‘extraterritorial effect’ or not; that is, an assertion of jurisdiction ought to be regarded as extraterritorial as soon as it seeks to control or otherwise directly affect the activities of an object (person, business, etc.) outside the territory of the state making the assertion.

This proposal overcomes the first of the two problems outlined above – it makes it feasible to draw a sharp line between what is territorial and what is extraterritorial. However, I now doubt that this definition can fully overcome the second problem I sought to bring attention to above. After all, in many, if not a majority of, cases a claim of jurisdiction will have some extraterritorial effect as defined above. Thus, focusing on an extraterritorial effect will presumably not satisfy the threshold for extraterritoriality, for example, in the context of the presumption against extraterritoriality found in the laws of many countries. As pointed out by the US Government in the ongoing Microsoft case: “The principle against extraterritoriality presumes that Congress does not intend for a law to apply extraterritorially. It does not presume Congress’s intention to be that the law has no incidental effects outside the country whatsoever.”

In light of the above, our obsession with the territoriality/extraterritoriality divide must come to an end, and the main conclusion to be drawn from the above is this: if, as has been demonstrated, the conceptual distinction between territoriality and extraterritoriality does not fully work, the usefulness of the territoriality principle is severely undermined and it is no longer deserving of the supreme position it holds currently.

Featured image credit: NASA Earth’s Light, by GSFC. CC-BY-2.0 via Flickr.

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