Extraterritoriality

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This column examines the legal concept that is referred to as “extraterritoriality”. It begins by considering the derivation of the terminology in English and Chinese, and explaining how the concept is adopted and justified in different countries. It then analyses how the concept operates in mainland China in the area of criminal law.

The concept of extraterritoriality

The concept of extraterritoriality generally refers to the assertion of legal authority by a country (or a separate jurisdiction such as a self-governing region of a country) over conduct occurring outside its territory. In English, the term “extraterritorial jurisdiction” is derived from the Latin words extra territorium, meaning “outside the territory”. In Chinese, the meaning can be understood literally from the term that is used.

A related concept is “long-arm jurisdiction”, which generally refers to the assertion of legal authority by the local courts in one country over parties or defendants in a foreign country. This concept enables a court to try a case against a defendant and issue a binding judgment against the defendant, even if the defendant is located in a foreign country.

In criminal law proceedings, the assertion of legal authority by one country over conduct occurring, or persons located, in a foreign country is unlikely to have any practical effect unless the persons return to that country or the legal authority asserted by that country is recognised by the other country pursuant to an international agreement or to some other basis in international law. By comparison, in civil law proceedings (such as a commercial dispute) or administrative proceedings (such as tax recovery proceedings), the assertion of extraterritorial jurisdiction or long-arm jurisdiction will have a practical outcome if there are assets against which the administrative decision or judgment can be enforced.

The assertion of legal authority by one country over conduct or persons in another country is a controversial issue, as it may be treated as an infringement of sovereignty and affect relations between the countries. However, extraterritoriality has become increasingly common in the case of transnational crimes such as crimes against children, bribery of foreign officials, modern slavery, terrorism and war crimes.

Many of these issues are now governed by international treaties. Some commentators argue that all extraterritorial jurisdiction should be treaty-based (rather than unilateral in nature) to protect individual rights and prevent procedural unfairness.

In common law jurisdictions, extraterritoriality is usually only recognised in limited circumstances. Further, in countries such as Australia and the US, the common law has traditionally recognised a presumption against the extraterritorial effect of its criminal laws. In contrast, some civil law countries assert extraterritorial jurisdictions over all crimes by, or against, their citizens. Where extraterritorial jurisdictions are asserted, the criminal law often imposes a requirement that the conduct be treated as a crime in both the foreign country and the country that is asserting extraterritorial jurisdiction.

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葛安德 Andrew Godwin

A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew is currently on secondment to the ALRC as special counsel to assist with its inquiry into corporations and financial services regulation. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia.com