7.2.2
Objective territoriality
This principle allows for jurisdiction where conduct committed abroad produces
effects in a third State. The classic example associated with this principle involves
the
Lotus
case before the Permanent Court of International Justice.
13
In that case,
eight Turkish crewmen perished as a result of a collision on the high seas between a
French and Turkish vessel. Upon arrival in Turkish territorial waters, the captain of
the
Lotus
was apprehended and charged with the death of the crewmen. The majority
of the court ruled that, since the Turkish vessel was flying the flag of that country, it
was to be assimilated to Turkish territory. Hence, under this theory, it was as if the
ensuing manslaughter was committed on Turkish soil, in which case it was thereafter
justified in exercising jurisdiction over the French captain. That part of the judgment
was heavily criticised and, in any event, it does not represent the law today.
14
The magnitude of the consequences which different States require is felt in their
territory as a prerequisite to exercising objective territorial jurisdiction are issues
that have evolved through municipal case law and legislation. In international law,
jurisdiction with regard to these inchoate offences could be based, depending on
the particular facts, on the protective principle with which it overlaps. US courts
consider that the existence of any two of the following, acts (that is, the relevant
offence), intent or effects within the US, are sufficient to trigger the application of
objective territoriality jurisdiction.
15
US case law has correctly recognised that because
criminal acts may be consummated through agents, whether knowing or unknowing,
such as through accomplices or postal and telephone services, a defendant will be
subject to US jurisdiction if he or she knowingly uses such agents to carry out an act
within that country.
16
Another alternative employed by US federal courts, again similar to the protective
principle, is the so called ‘effects doctrine’, which has empowered the courts of that
country to assume jurisdiction, especially in anti-trust cases, on the basis that the
12
See generally JJ Paust
et al International Criminal Law: Cases and Materials,
1996, Durham, NC: Carolina
Academic Press, pp 123–28.
13
France v Turkey
(1927) PCIJ Reports, Ser A, No 10.
14
In his dissenting opinion,
ibid,
p 53, Lord Finlay argued that criminal jurisdiction for negligence
causing a collision belongs to the Flag State, unless the accused is of a different nationality, in which
case it is his or her own country that may also assume jurisdiction. This is the rule adopted in Art 27
of the 1982 United Nations Law of the Sea Convention (UNCLOS), 21 ILM (1982), 1261.
15
Op cit,
Paust
et al,
note 12, p 124.
16
Op cit,
Paust
et al,
note 12;
Ford v USA,
273 US 593 (1927), p 621;
McBoyle v USA,
43 F 2d 273 (1930).
Chapter 7: State Jurisdiction and Immunities
147
economic or other consequences of the offence were directly felt in the US.
17
Notwithstanding the municipal merits for such jurisdiction, its far reaching
application may be injurious to the trading or other interests of third States,
18
and
public economic organisations.
19
International protestation against the broad use of
the ‘effects doctrine’ in the US culminated in
Timberlane Lumber Co v Bank of America,
20
where it was held that jurisdiction under the doctrine had to consider the economic
interests of other States and the scope of the relationship between the US and the
defendants.
21
The EU has reacted vociferously to the promulgation of extra-territorial
legislation of this kind, calling on its Member States to take appropriate measures to
protect themselves.
22
If the doctrine is to be applied in accordance with international
law, the relevant courts must be satisfied that the ‘effect’ is not only substantial and
direct, but also that the executive has exhausted all consultative or other means with
the conflicting State in order to settle the dispute.
A third alternative form of the objective territoriality principle is the ‘continuing
act’ doctrine. This stipulates that a State enjoys jurisdiction over an offence which,
although committed abroad, is continuing to produce results within that State. In
DPP v Doot,
23
the accused were charged with conspiring to import cannabis into the
UK. Although the conspiracy was fully carried out abroad, and UK courts would
not normally entertain jurisdiction in such case,
24
the House of Lords rejected the
defendants’ plea by stating that the offence continued to occur in England since the
result of the conspiracy was ongoing.
Finally, reference should also be made to jurisdiction over legal persons, such as
multinational corporations. These are normally constituted by a parent company and
a multitude of subsidiaries, the latter acting as independent entities in the country
withinwhichtheyare incorporated. Despite this structure of multinational corporations,
US courts have consistently upheld their jurisdiction over local subsidiaries in cases
17
See Sherman (Anti-Trust) Act 1890, 15 USC § 1;
USA v Aluminium Co of America,
148 F 2d 416 (1945);
Mannington Mills Inc v Congoleum Corp,
595 F 2d 1287 (1979);
Hartford Fire Insurance Co v California,
113 S Ct 2891 (1993); see also DHJ Hermann, ‘Extra-Territorial Criminal Jurisdiction in Securities
Laws Regulation’, 16
Cumberland L Rev
(1985–86), 207; in 1996 Congress passed the US Cuban Liberty
and Democratic Solidarity Act (Helms Burton Act), 22 USC § 6021. Title III of the Act concerns
nationals of third States ‘trafficking’ in nationalised US property by the Cuban authorities in 1959,
imposing on such persons penalties such as treble damages and denial of entry to the US. See A
Qureshi,
International Economic Law,
1999, London: Sweet & Maxwell, pp 67–69; BM Clagett, Title III
of the HelmsBurton Act is Consistent with International Law’, 90
AJIL
(1996), 434; AV Lowe, ‘US
Extra-Territorial Jurisdiction: The Helms-Burton and D’Amato Acts’, 46
ICLQ
(1997), 378.
18
It is not surprising that such jurisdiction has been ardently opposed by a number of countries. See
UK Protection of Trading Interests Act 1980; AV Lowe, ‘Blocking Extra-Territorial Jurisdiction: The
British Protection of Trading Interests Act 1980’, 75
AJIL
(1981), 257.
19
The EU generally assumes jurisdiction over anti-competitive activities performed outside its
boundaries, either on the basis of relevant subsidiaries situated in the EU or by finding that such
activity was implemented in the EU, although originating outside it. See
ICI v Commission
(
Dyestuff
case) [1972] ECR 619;
Ahlstrom v Commission
(
Wood Pulp
case) [1988] 4 CMLR 901; DGF Lange and JB
Sandage, ‘The
Wood Pulp
Decision and its Implications for the Scope of EC Competition Law’, 26
CML Rev
(1989), 137.
20
(1976) 66 ILR 270.
21
Restatement (Third) of the Foreign Relations Law of the USA 1986, § 403 further requires that the
exercise of jurisdiction be ‘reasonable’.
22
Joint Action 96/668/CFSP (1996 OJ L309, 29 November, p 7).
23
[1973] 1 All ER 940.
24
This requirement no longer applies, on account of the Criminal Justice Act (CJA) 1993, ss 1–2.
International Criminal Law
148
where the actions of the parent company produce effects in the US.
25
However, as this
is an area not yet sufficiently regulated by rules of international law, it is individual
countries that have unilaterally formulated jurisdictional competence.
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