Extraterritoriality and Self-Determination
November 26, 2024
Professor Evan Criddle has written a fascinating article on extraterritoriality, forthcoming in the American Journal of International Law, but available now on SSRN. Evan argues that much extraterritorial application of domestic law violates the right to self-determination under international law by subjecting non-nationals outside the territory of the regulating state to laws that are not of their own making. The article is original, provocative, and worth reading. Nevertheless, I have some fundamental disagreements.
Extraterritorial Regulation
As Evan notes, customary international law recognizes the authority of a state to make laws for persons, property, and conduct when there is a genuine connection with the regulating state. This authority is known as prescriptive jurisdiction. There are six traditional bases for prescriptive jurisdiction: (1) territory; (2) effects; (3) nationality; (4) passive personality; (5) the protective principle; and (6) universal jurisdiction.
Evan has no quarrel with regulation based on territory or nationality, or even with universal jurisdiction when it enforces international law rules that states must accept. But exercising prescriptive jurisdiction on any of the other bases—effects, passive personality, or the protective principle—may extend a state’s laws to non-nationals outside its territory. This, in his view, violates self-determination.
Self-Determination and Colonialism
The right to self-determination emerged as a reaction to colonialism. As Evan notes, some scholars have questioned its relevance outside that context. I accept that self-determination may be relevant beyond colonialism. It may have something to say, for example, about the lawfulness of election interference. But it is still worth noting how different extraterritoriality is from colonialism.
Evan is careful to note these differences himself. Extraterritoriality applies a state’s laws to foreign peoples “without claiming sovereignty over those peoples.” Extraterritoriality does not involve “colonial administration and military occupation.” Extraterritoriality “does not necessarily entail significant power disparities”: great powers apply their laws extraterritorially to other great powers; and developing states also regulate extraterritorially. Evan calls extraterritoriality “the new imperialism,” but he acknowledges that it is different from the old imperialism.
Defining Self-Determination
Many legal instruments refer to the right of self-determination, and Evan quotes several of them. Article 1 of the International Covenant on Civil and Political Rights is as good a place to start as any: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” Evan’s basic argument is that the extraterritorial application of a state’s law to non-nationals violates self-determination because it subjects them to laws that are not of their own choosing.
But I wonder why the right of a people to “freely determine their political status and freely pursue their economic, social and cultural development” should be defined exclusively in terms of lawmaking. When foreign multinationals engage in anticompetitive conduct causing harmful effects within another state, they interfere with the ability of the people of that other state to pursue economic development. When foreign terrorists target another state’s citizens abroad on the basis of their nationality, they interfere with the ability of the people of that other state to pursue social and cultural development. And when foreign hackers interfere with democratic elections in another state, they interfere with the ability of the people of that other state to govern themselves.
Under the customary international law of prescriptive jurisdiction, a state could apply its laws extraterritorially in each of these cases: anticompetitive conduct on the basis of effects; terrorism on the basis of passive personality; and election interference on the basis of the protective principle. Evan views such extraterritorial regulation as violating self-determination because of the persons to whom the laws are applied. But it may also be worth considering the persons whom these laws are trying to protect.
Put another way, because the interests of a people extend beyond the limits of a state’s territory, its right to self-determination should do so as well. This may bring one people’s right to self-determination into conflict with another’s. But it does not solve the problem to look at only one half of it.
Identifying Customary International Law
I also find it hard to agree with Evan’s use of a general principle of international law like self-determination to override state practice concerning jurisdiction to prescribe. Customary international law is largely based on state practice. As the International Law Commission’s 2018 Draft Conclusions on Identification of Customary International Law put it, “[t]o determine the existence and content of a rule of customary international law, it is necessary to ascertain whether there is a general practice that is accepted as law (opinio juris)” (Conclusion 2). There is ample state practice supporting each of the traditional bases for jurisdiction to prescribe (see the reporters’ notes to Sections 408-413 of the Restatement (Fourth) of Foreign Relations Law).
The right to self-determination is also based on state practice, including decolonialization during the 20th century, and is supported by multiple declarations and widely adopted treaties like the ICCPR. Evan’s basic move in this article is to take state practice with respect to self-determination and induce from it a general principle. He then deduces from that principle specific rules for extraterritoriality that conflict with state practice with respect to extraterritoriality.
To be clear, I am not suggesting that one cannot induce from state practice more general rules to be applied in a somewhat different context. I think, for example, of the International Court of Justice’s decision in the Arrest Warrant case, which extended head-of-state immunity to foreign ministers (but for criticism on this point, see the dissenting opinion of Judge ad hoc Van den Wyngaert). One should be wary, however, about doing this when the new context is very different from the original one and when state practice in the new context is at odds with the more general rule.
On page 44 of the SSRN draft, Evan asks: “should the right to self-determination (lex lata) yield to the emerging state practice of unilateral extraterritorial lawmaking (lex ferenda)?” In my view, this question has it backwards. In the context of prescriptive jurisdiction, it is the genuine connection test and the traditional bases of jurisdiction that are lex lata—the law as it is. The self-determination argument represents lex ferenda—the law as Evan thinks it should be.
Conclusion
I disagree about what the law should be. Specifically, I disagree that the right of self-determination should limit the exercise of prescriptive jurisdiction on bases other than territory, nationality, and universal jurisdiction. The interests of a people sometimes extend beyond their territory, and so their ability to regulate must do so as well. Whether one characterizes such regulation as itself an exercise of self-determination (as I did above) or more traditionally as an application of the “genuine connection” test, it is both legitimate and consistent with customary international law.