The general rule is that laws extend to the territory of the state, as well as to the embassies of the state abroad, to specific subjects or objects carrying the flag of the state, and to diplomats and deployed military stationed abroad. There is a general presumption that laws made in one state do not have effect in another state.
Extraterritoriality extends the operation of law to the conduct of nationals abroad and to the application of laws to non-nationals outside the territory of the legislating country. In the first case, often taxation laws follow a citizen abroad. In the second, it is the extension of international law that allows for the application – though it generally requires the cooperation of both jurisdictions to enforce the law.
International Law Theories
In general, a state’s borders are considered to be impenetrable, and it is impossible to justify legislation regulating events beyond the state’s borders and legislation is subject to a presumption of territoriality. Globalization has promoted a departure from this norm. If there is a substantial effect on a state, the state may argue that the exercise of extraterritorial jurisdiction is reasonable. Generally, the criteria is that the interest has substantial impact on national commerce and the attempted exercise of extraterritoriality is not unreasonable.
Some cross-border crimes, such as drug or human trafficking also extend extraterritoriality. The unilateral claim of extraterritoriality is difficult to exercise in practice, as it impinges on the other state’s sovereignty. War crimes and exercise of extraterritoriality over citizens abroad, however, have a long precedent and are generally accepted in international law. In the case of war crimes, the heinous nature of the crime, coupled with the low probability they will be prosecuted by the nation committing the crime, and the need for an effective deterrent drives general acceptance of extraterritorial application as a practice of international law.
Often times economic sanction legislation, such as the US embargo of Cuba, has extraterritorial effect, but is accepted as part of international law. However, where there is no bilateral agreement and it is not punitive in nature generally and is targeted particularly at individuals is problematic. For instance, legislating against terrorism committed outside the territory of the state and giving the state the authority to enforce this legislation is potentially problematic as it will infringe on the sovereignty of a foreign power that did not necessarily commit the offense.
Legislative Drafting Challenges
Because extraterritoriality is the exception, it must be specifically planned for in the drafting of legislation. Best practice would include noting the effect in both the title as well as the body of the legislation.
Blocking legislation is used to block extraterritorial effects. States may use blocking legislation to prohibit the transfer of information or production of documents in foreign proceedings. They may pass blocking legislation to make foreign judgments ineffective or prevent their enforcement. They may also pass legislation prohibiting cooperation with foreign authorities. The state may also pass claw-back legislation to retaliate against foreign asset seizures or pass legislation blocking compliance with foreign regulations.
In the alternative, the states may look at principles of effect, reasonableness and comity to contain the effect of legislation and these elements are regulated by jurisdictional conflict rule sin international law.