Extended Territoriality versus Extraterritoriality: A Key Jurisdictional Distinction
| Author | Steve Coughlan, Robert J. Currie, Hugh M. Kindred, Teresa Scassa |
| Pages | 80-116 |
CHAPTER
4
Extended
Territoriality
versus
Extraterritoriality:
A
Key
Jurisdictional
Distinction
A.
INTRODUCTION
When
dealing
with
complex
subject
matter,
it
is
appropriate
to
carefully
distinguish
the
concepts
that
are
being
dealt
with
from
those
that
are
not.
In
the
case
of
this
book,
we
consider
it
necessary
to
explore
a
key
distinction.
That
distinction
is
between
the
exercise
of
extraterritorial
jurisdiction
by
the
state,
which
as
we
have
shown
involves
the
state
ex
erting
its
power
over
persons,
places,
and
things
that
are
wholly
outside
the
state's
territory;
and
the
exercise
of
extended
territorial
jurisdiction,
which
involves
an
exertion
of
jurisdiction,
usually
adjudicative,
over
a
matter
that
has
some
extraterritorial
elements
or
aspects,
but
also
has
significant
links
to
the
state's
territory.
It
is
the
latter
elements
or
aspects
that
form
the
basis
of
the
jurisdictional
claim.
While
this
distinction
could
be
rolled
out
reasonably
quickly
—
and
in
deed,
it
gets
only
a
few
paragraphs
of
discussion
in
most
international
law
textbooks
—
we
feel
it
requires
extended
discussion
here
for
two
reasons.
First,
from
a
practical
perspective,
research
and
experience
tell
us
that
the
distinction
between
an
extraterritorial
matter
and
one
with
extraterritor
ial
aspects
is
easily
confused,
particularly
due
to
the
factual
and
doctrinal
complexity
that
attaches
to
it.
It
is
an
extremely
important
distinction
be
cause,
as
we
explore
below,
it
determines
whether
entire
bodies
of
law
and
interpretive
norms
attach
to
a
particular
matter.
Nonetheless,
mistakes
are
easily
made
and
confusion
is
not
uncommon,
even
at
the
highest
levels.
1
i
For
example,
in
Society
of
Composers,
Authors
and
Music
Publishers
of
Canada
v
Cana
dian
Assn
of
Internet
Providers,
[SOCAN],
the
Supreme
Court
of
Canada
80
Extended
Territoriality
versus
Extraterritoriality:
A
Key
jurisdictional
Distinction
•
81
Second,
the
key
to
all
of
these
questions
is
the
determination
of
where,
for
legal
purposes,
something
happened,
or
something
or
some
one
is
located,
and
in
the
context
of
globalization
and
in
a
highly
net
worked
environment,
this
has
become
particularly
complex.
Many
matters
that
might
attract
the
attention
of
a
state,
and
thus
cause
it
to
exercise
its
jurisdiction,
have
elements
or
aspects
that
occur
in
a
num
ber
of
other
states.
This
is
particularly
so
in
the
context
of
the
Internet,
where
something
that
is
accessible
via
the
World
Wide
Web
may
be
said
to
be
"occurring"
or
"located
”
in
every
country
connected
to
the
In
ternet
—
that
is,
everywhere.
Yet
this
is
hardly
a
sensible
notion
upon
which
to
found
legal
claims
to
jurisdiction
over
that
thing,
and
the
prin
ciple
of
extended
territoriality
has
become
increasingly
important
to
help
a
state
sort
out
whether
the
thing
is
within
its
territory
for
legal
purposes,
or
whether
it
must
resort
to
extraterritorial
jurisdiction.
Thus,
while
extended
territoriality
is
slightly
outside
the
overall
scope
of
this
book,
we
feel
it
deserves
attention
as
a
further
exploration
of
the
pres
sures
that
globalization
has
put
upon
jurisdictional
dynamics
in
the
international
community.
Accordingly,
this
chapter
will
provide
a
brief
explanation
of
the
principle
of
extended
territoriality,
followed
by
an
account
of
how
it
is
exercised
in
Canadian
criminal
and
civil
proceedings.
The
latter
discus
sion
will
yield
the
interesting
insight
that,
on
an
international
law
level,
much
of
what
is
called
“
private
international
law
”
actually
only
provides
for
detailed
inquiry
into
whether
jurisdiction
should
be
asserted
on
an
extended
territorial
basis.
The
penultimate
section
will
investigate
the
was
considering
whether
Canada
had
jurisdiction
over
music
transmitted
into
Can
ada
via
the
Internet
for
the
purposes
of
applying
the
Copyright
Act,
and
framed
the
matter
as
avoiding
the
exertion
of
extraterritorial
jurisdiction.
However,
as
the
Act
had
no
extraterritorial
effect,
the
question
was
in
fact
whether
Canada
could
exert
territorial
jurisdiction
(on
an
extended
territoriality
basis)
over
the
transmissions
in
question.
See
discussion
in
Stephen
Coughlan
et
al,
"Global
Reach,
Local
Grasp:
Constructing
Extraterritorial
Jurisdiction
in
the
Age
of
Globalization"
(2007)
6:1
CJLT
29
at
42-43.
In
Rv
Greco
[Greco],
the
Ontario
Court
of
Appeal
analyzed
the
offence
of
breaching
a
probation
order
as
both
a
matter
of
extrater
ritorialjurisdiction
and
extended
territorial
jurisdiction,
without
expressly
finding
that
it
was
either.
Nor,
to
be
fair,
is
this
confusion
limited
to
the
courts,
and
practi
cally
speaking
much
of
the
confusion
likely
stems
from
the
way
in
which
cases
are
argued
by
litigants.
Confusion
was
avoided
in
R
v
Klassen,
2008
BCSC
1762,
where
the
accused
argued
unsuccessfully
that
a
law
providing
for
extraterritorial
juris
diction
over
sexual
assault
of
children
was
ultra
vires
because
it
did
not
have
a
"real
and
substantial
connection"
to
Canada
—
which,
as
the
court
recognized
and
as
dis
cussed
below,
is
the
test
for
whether
there
is
extended
territoriality
over
the
offence.
82
•
LAW
BEYOND
BORDERS
pressures
that
the
Internet
has
put
upon
courts
in
determining
territor
iality,
and
the
increasing
use
of
extended
territoriality
as
a
tool
for
this
purpose,
after
which
a
few
conclusions
will
be
offered.
B.
INTERNATIONAL
LAW
PRINCIPLES
AND
THE
CONTINUUM
OF
TERRITORIALITY
Recall
that
a
state
’
s
entitlement
to
exercise
jurisdiction
over
persons,
places,
and
things
within
its
territory
is
a
foundational
aspect
of
state
sovereignty
and
a
firmly
established
principle
of
customary
inter
national
law.
From
early
days,
however,
states
had
to
deal
with
matters,
particularly
criminal
offences,
which
occurred
partly
within
but
part
ly
outside
one
state's
territory.
This
led
to
the
development
of
extended
territorial
jurisdiction,
2
which
is
sometimes
thought
of
as
a
subset
of
the
principle
of
territorial
jurisdiction.
This
principle
accommodates
a
problem
that
is
simply
stated,
but
is
legally
complex
in
a
system
based
on
exclusive
state
sovereignty
over
territory:
some
acts,
conduct,
and
transactions
take
place
in
the
territory
of
more
than
one
state.
The
clas
sic
international
law
textbook
example
is
that
of
A,
standing
in
state
X,
who
fires
a
gun
across
a
border
into
state
Y,
killing
B.
Clearly
the
en
tire
crime
of
murder
did
not
occur
within
a
single
state,
so
which
state
has
jurisdiction
to
prosecute?
In
the
modern
day
of
transnational
trans
actions
and
porous
borders,
this
simple
example
has
been
supplanted
by
complex
multi-state
narcotics
trafficking
activities,
money-laundering
techniques
that
see
funds
running
through
ten
banks
in
ten
countries
in
as
many
minutes,
and
various
kinds
of
terrorist
acts.
Influential
American
legal
nomenclature
describes
"objective
terri
toriality"
(the
offence
starts
in
one
state
but
finishes
in
the
forum
state)
and
“
subjective
territoriality"
(the
offence
begins
in
the
forum
state
but
is
completed
elsewhere).
3
Both
of
these
tend
to
be
recognized
as
legit
imate
bases
for
claiming
territorial
jurisdiction
over
a
matter.
In
Amer
ican
antitrust
law,
the
controversial
“
effects
doctrine
”
has
been
asserted,
2
The
principle
is
known
by
a
number
of
labels,
including
"qualified
territorial
jurisdic
tion"
(Robert
J
Currie,
International
&
Transnational
Criminal
Law
(Toronto:
I
rwin
Law,
2010)
at
62
[Currie];
I
lias
Bantekas,
International
Criminal
Law,
4th
ed
(Oxford:
Hart,
2010)
at
333).
We
prefer
"extended"
as
being
the
most
evocatively
descriptive
la
bel
—
the
state
is,
in
a
figurative
sense,
extending
its
jurisdiction
out
to
cover
some
acts
that
took
place
beyond
its
borders.
And
see
Kate
Brookson-Morris,
"Conflicts
of
Criminal
Jurisdiction"
(2007)
56:3
ICLQ659.
3
Reviewed
in
Currie,
ibid
at
62-64.
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