Extraterritorial criminal jurisdiction: Does the long arm of the law undermine the rule of law?

Abstract

Assertions of extraterritorial jurisdiction have become increasingly frequent in the 21st century. Although a useful response to transnational crime, such assertions are often highly politicised and used by states to further unilateral foreign policy objectives. Further, some assertions of extraterritoriality undermine the rule of law and do not provide adequate procedural fairness. While principles such as comity and reasonableness may assist in protecting the rights of states, they do not adequately protect the rights of individuals. Therefore, this article argues that extraterritoriality should be treaty-based rather than unilateral, and domestic constitutional guarantees must apply equally to extraterritorial assertions of jurisdiction and territorial assertions. Further, principles to guide exercises of prosecutorial discretion in relation to an assertion of extraterritoriality need to be developed and made available in the form of a model law.