A case for extraterritoriality

Can the island of Tobago pass a law to bind the rights of the whole world? Would the world submit to such an assumed jurisdiction?" asked Lord Ellenborough CJ in 1808.1 For every law enacted by a domestic legislature that purports to apply to persons, things, or events beyond its national frontier, a similar question may be asked and the answer is often not as clear and straightforward as one would hope for. The concern over the propriety of extraterritoriality is compounded when the legislation in question is penal in nature; all the more so where the law is designed to punish national security offences in a way that may be assailed as an unjustified encroachment upon civil liberties. To start with, territoriality is generally regarded in international law as the primary basis of a state's jurisdiction to prescribe penal law.2 The principle of territoriality is well-entrenched and beyond controversy:3 "extra territorium jus dicenti impune non paretur."4 Territorial jurisdiction manifests, as Lord Mcrnillan put it, "an essential attribute of the sovereignty of this realm, as of all sovereign independent States, that it should possess jurisdiction over all persons and things within its territorial limits and in all causes civil and criminal arising within these limits."5 Statutory interpretation u n d e r common law is often said to involve a presumption against extraterritorial application.6 Lord Selbourne went as far as proclaiming that "[a] 11 jurisdiction is properly territorial" and that "no territorial legislation can give jurisdiction which any foreign Court ought to recognize against foreigners, who owe no allegiance to the power which so legislates."7 In international law, it is well-recognized that the territorial principle does not confine a state's legislative jurisdiction within its territorial bounds.8 The territorial principle itself can be applied liberally to justify jurisdiction over crimes that, at least in part, take place outside the territory. A state is generally permitted to extend the application of its penal law to its nationals even whilst they are abroad. There are also various bases in international law, commonly known as the "protective principle", "passive personality principle" a n d "universality principle", upon which a state may impose its law on aliens in respect of their conduct that occurs outside its territory. In an oft-quoted passage from the noted Lotus judgment, the Permanent Court of International Justice opined, Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, [international law] leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules . . . Though it is true that in all systems of law the principle of the territorial character of criminal law is fundamental, it is equally true that all or nearly all of these systems of law extend their action to offences committed outside the territory of the State which adopts them, and they do so in ways which vary from State to State. The territoriality of criminal law, therefore, is not an absolute principle of international law and by no means coincides with territorial sovereignty.9 If, as the Permanent Court seemed to suggest, there is nothing fundamentally objectionable about extraterritorial criminal jurisdiction, why did the proposed extraterritoriality of Article 23 legislation in Hong Kong become a source of controversy?10 The questions that have been raised in this regard are in a way peculiar to Hong Kong's distinctive constitutional and international status. Whilst the legislation's conformity with the generally accepted norms of international law on penal jurisdiction remains an important issue, there are questions on the constitutional status of the Special Administrative Region (SAR) relating in particular to the interface between the legislative competence of the national government and that of the SAR. This article will attempt to answer the constitutional and international legal questions arising from the extraterritorial reach of the Article 23 legislation and will argue that the extraterritoriality provisions of the proposed legislation are generally in line with the requirements of the Basic Law and international law. © 2005 by The Hong Kong University Press, HKU. All rights reserved.