ROLE OF INTERNATIONAL LAW ON TACKLING CRIMES IN THE EXTRA
TERRITORIAL JURISDICTION
INTRODUCTION:
Territorial nexus means there must be a genuine and substantial connection between the crime and the
prosecuting state’s territory. This includes both subjective territoriality (crime begins in the state)
and objective territoriality (crime has effects within the state). Meanwhile, extra territorial
jurisdiction is when a state expands or extends its legal jurisdiction beyond its geographical territorial
boundaries or such territorial nexus. This is commonly reflected when states retain jurisdiction over
their citizens when they are overseas, giving the states the power to conduct trials for some criminal
offenses by such citizens.1 This is a legal doctrine that gives nations the power to adjudicate over
matters that happened outside their territory.
It is well known that states can typically claim jurisdiction under five principles - Territoriality,
Nationality, Protective, Universality, Passive which are overlapping with each other. However, these
5 principles are not laid down in any text governing International Law. Moreover, states are under
no obligation to make their domestic law based on these five principles or even accept universal
jurisdiction except in cases where they have signed a treaty that confines the states with universal
jurisdiction. With that said, many treaties are put in place with this conflict in mind, i.e. to conclude
jurisdictional disputes. The first three principles- 1. Territorial principle 2. Nationality Principle 3.
Protective principles are based on the first three elements of state as given under the Montevideo
Convention on Rights and Duties of the State, Article 1. However, in addition to this, the
Universality principle was added since some territories did not belong to the jurisdiction of any
single state, this principle led to the idea of flag-ship jurisdiction.
“The Territorial Principle” is not only a logical resolution to arrive at, but rather a convenient one
since the states can retain and convict for criminal offenses that happen in its soil. However, its
jurisdiction is much wider than it seems as it extends to crimes that are also only “partly” taking
place in its soil. The very basis of international law relies on the sovereignty of the states. The well
known [Link] case explored territorial sovereignty with respect to criminal offenses as well
concluding that the jurisdiction of a state must remain unrestricted by any rule of international law
prohibiting it in order to be exercised. This case lead to the formation of the High seas convention
1958 which made the position of international law on territorial jurisdiction much cleared by stating
that “territorial principle covers crimes committed not only upon the land territory of the state but also upon the
territorial sea and in certain cases upon the contiguous and other zones and on the high seas where the state is the flag
state of the vessel”2
1 JENNINGS AND WATTS (EDS), OPPENHEIM’S INTERNATIONAL LAW, VOL. 1, 183-184 (9TH ED.)
(2008).
2 PCIJ, Series A, No. 10, 1927, p. 25; 4 AD, p. 153.
Universal jurisdiction may also sound like it lacks controversy, considering that it helps bring gross
human rights violations to an end. However, in cases like the USA in the wake of Filártiga, there are
many practical concerns, to the point that the US Supreme court held that the Alien Tort Claims Act
only covers extremely serious violations of human rights. Due to such reasons, the proposal to make
ICC work on the basis of Universal Jurisdiction was explicitly rejected. This paper is particularly set
to explore the nuances of the extra territorial jurisdiction that states have over the crimes committed
in their soil by foreign citizens, crimes committed by their citizens in foreign soil.
KEYWORDS: Extra-Territorial jurisdiction, territorial principle, sovereignty, Criminal offenses.
STATEMENT OF PROBLEM:
Treaties impose obligations mostly for “core international crimes” such as genocide, torture, piracy,
war crimes. But globalised crimes like cybercrime, trafficking, terrorism, corruption often fall outside
universal treaty obligations, so there’s no uniform binding duty to prosecute them extraterritorially.
RESEARCH OBJECTIVES:
1. To analyse how International Principle Judicial organs like the International Court of Justice,
or the ICC and the UN Conventions tackle transnational and extraterritorial crimes.
2. To understand the legal principles that enable the exercise of extraterritorial jurisdiction over
criminal matters under international law.
3. To examine the conflict between extraterritorial jurisdiction and state sovereignty in light of
evolving global crimes.
4. To evaluate the effectiveness of existing dispute-resolution mechanisms such as MLATs in
addressing the conflict in jurisdictional claims.
5. To explore possible harmonised frameworks within international law that could better
regulate the exercise of extraterritorial jurisdiction.
RESEARCH QUESTIONS:
1. Do the existing 5 principles of international law allow states to try crimes committed beyond
their territorial jurisdiction?
a. If so, do these principles still preserve the concept of state sovereignty?
b. If not, how could international law create a more harmonised principle for handling
extraterritorial crimes?
2. What challenges arise when multiple states claim overlapping extraterritorial jurisdiction, and
how effective are mechanisms like the ICJ, treaties, extradition, and MLATs in resolving
such conflicts?
3. To what extent does the exercise of extraterritorial criminal jurisdiction risk politicisation,
selective enforcement, or abuse, and how can safeguards be introduced?
4. What difficulties do states and international institutions face in addressing transnational
crimes (terrorism, drug trafficking, human trafficking) through extraterritorial jurisdiction,
and how can international law create a more unified framework?
5. What role can international criminal institutions like the ICC and ICJ realistically play in
bridging gaps where state-based extraterritorial jurisdiction proves insufficient?
RESEARCH METHODOLOGY:
This research follows a doctrinal method of research through the use of secondary sources. The
primary sources include Conventions such as Convention on the Prevention and Punishment of
the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS
277,Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27
January 1980) 1155 UNTS 331. United Nations Convention against Transnational Organized
Crime (UNTOC) (adopted 15 November 2000, entered into force 29 September 2003) 2225
UNTS 209, Declarations, Resolutions, Reports, Case laws such as The Case of the S.S. "Lotus"
(France v. Turkey) [1927] PCIJ Series A, No. 10, Case Concerning the Barcelona Traction,
Light and Power Company, Limited (Belgium v. Spain) [1970] ICJ Rep 3., Advisory Opinions
such as Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide [1951] ICJ Rep 15, Books, Journal articles and Research papers.
REVIEW OF LITERATURE:
1. Conference on Security and Cooperation in Europe Helsinksi Final Act, art. 4(2),
Aug. 1, 1975, 14 I.L.M. 1292.
The Helsinki Final Act of 1975, specifically Article 4(2), formulates the rule that states should not
engage in any action contrary to the territorial integrity or political independence of another state. As
far as extraterritorial jurisdiction is concerned, such a provision acts as a limit on unilateral
enforcement measures by states. The conflict between sovereign equality and collective duty to
prosecute international crimes lies at the heart of the necessity for multilateral cooperation, as
opposed to unilateral extension, in exercising jurisdiction extraterritorially.
2. International Law of the Unilateral Declaration of Independence in Respect of
Kosovo, Advisory Opinion, 2010 I.C.J. 141 – Oral Statement of China. (2009).
China's verbal articulation in the ICJ's Advisory Proceedings regarding the Declaration of
Independence of Kosovo is an exercise of its firm commitment to the norm of territorial integrity
and non-intervention, particularly in the light of secessionist claims. With regard to extraterritorial
jurisdiction, this articulation rests upon a prudent approach: exercising legal authority beyond
borders cannot be a facade for intruding into the sovereignty of another state.
3. Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 2007
I.C.J. 128, ¶ 190; Vidmar, J., South Sudan and the International Legal Framework
Governing the Emergence and Delimitation of New States, TEXAS J. INT’L L., Vol.
47, No. 3, 541, 545 (2012).
The International Court of Justice's decision in Bosnia and [Link] and Montenegro (2007),
affirmed states have an obligation not only to prevent and punish genocide, but also to cooperate
with international mechanisms designated with dealing with such crimes. This created a strong
precedent for universal jurisdiction, especially where crimes cross territorial lines. Vidmar suggests in
his study of the developments in South Sudan, the international legal framework permits the
extraterritorial application of legal norms when gross violations, such as genocide, occur.
4. US v. Aluminum Co. of America (1945)
In U.S. v. Alcoa, the U.S. courts asserted jurisdiction over extraterritorial activity, on the effects
doctrine. The landmark case laid the basis for contemporary extraterritorial antitrust enforcement
doctrine and, on the other hand, impacted the case for extraterritorial jurisdiction in international
criminal law more generally. The decision is a step in the direction of a functional and not a
formalistic understanding of jurisdiction, and reaffirms the principle that where transnational crimes
cause harm beyond boundary lines states can employ legal authority to act against such ills.
BIBLIOGRAPHY:
(i) BOOKS:
1. Buchanan, a., justice, legitimacy, and self-determination, 355 (2007); coppieters, b. & richard
sakwa, contextualizing secession: normative studies in comparative perspective, 7 (2003);
scharf, m., earned sovereignty: juridical underpinnings, denv. j. int’l l. & pol’y 373, 381(2003)
2. Jennings and watts (eds), oppenheim’s international law, vol. 1, 183-184 (9th ed.) (2008).
3. Raič, d., statehood and the law of self-determination, 415-416 (2002).
4. The international law commission’s articles on state responsibility: introduction, text and
commentaries (2002)
(ii) CONVENTIONS AND RESOLUTIONS:
1. Vienna Convention on the Law of Treaties art. 53, May 23, 1969, 1155 U.N.T.S. 331.
2. Application of the Convention on the Prevention and Punishment of the Crime of
Genocide,
3. I.C.J. Reports 2007, 205 (para. 392)
4. U N General Assembly. Resolution 3314 (XXIX), Definition of Aggression, U.N. Doc.
A/RES/3314 (Dec. 14, 1974
(III) ARTICLES AND WEBSITES
1. [Link]
2. Blackmer v. United States
3. United States extraterritoriality: European Union ...International Bar Association[Link] ›
article
4. [Link]
TENTATIVE CHAPTERISATION:
CHAPTER 1: Introduction
CHAPTER 2: Principles of Jurisdiction in International Law
CHAPTER 3: Treaty Obligations and Conventions for Extra Territorial Jurisdiction
CHAPTER 4: Challenges of Concurrent Jurisdiction
CHAPTER 5: Risks and Mitigation in Extraterritorial Jurisdiction
CHAPTER 5: Conclusion and Suggestions
BIBLIOGRAPHY
1. International Law Commission, Report on the Work of Its Fifty-Eighth Session: Fragmentation of
International Law: Difficulties Arising from the Diversification and Expansion of International Law
(2006) UN Doc A/61/10.
2. Boister, Neil, ‘Transnational Criminal Law?’ (2003) 14(5) European Journal of International Law
953.
3. Ryngaert, Cedric, ‘Jurisdiction in International Law’ (2nd edn, Oxford University Press
2015).
4. O’Keefe, Roger, ‘Universal Jurisdiction: Clarifying the Basic Concept’ (2004) 2(3) Journal of
International Criminal Justice 735.
5. Cryer, Robert, ‘An Introduction to International Criminal Law and Procedure’ (4th edn,
Cambridge University Press 2019).
