Jurisdiction Over International and Transnational Crime

• Author: Robert J. Currie
• Profession: Schulich School of Law, Dalhousie University
• Pages: 48-103

48

cHAPteR 2

JURISDICTION OVER

INTERNATIONAL AND

TRANSNATIONAL

CRIME

A. IntRodUctIon

It is impossible to engage fully with international and transnational

crimina l law without a solid understanding of jurisdiction. Specif‌ically,

it is important to comprehend both the international law principles

that govern when and how st ates m ay e xercise crimin al jurisdiction,

and the manner in which t he domestic l aw implements, i ncorporates,

and otherwise interacts with these principles.

Why is th is so? Over a century ago, Lord Halsbur y wrote t hat “all

crimes are local . . . jurisdiction is only territorial.”1 The former state-

ment was not true even at the time; the historica l record bears out that

by the late nineteenth century both crime and c riminals were mo-

bile — on foot, by mail, by train, and by ship. Malfeasant s in old movies

portraying the American “Old West” often headed to Mexico in order to

escape the domestic law enforcers. It is even less true now, as advances

in transportation and communication technologies have meant that the

world is, at least potentially, the oyster of the modern criminal.

While Lord Halsbury’s latter dictum certainly spoke to the ap-

proach the English cri minal law t raditionally took towards jurisdic-

tion, the international perspective was a nd is far more complex. From

early days b oth domestic and international law regimes were required

to develop means to deal with crimes that occurred, as La Forest J. once

1 Macleod v. Attorney-Ge neral for New South Wales, [1891] A.C. 455 at 458.

Jurisdict ion over International and Tran snational Crime 49

put it, “both here and there.”2 State s shared among them the desire to

reach and prosecute crimes which had negative effects on whatever

they deemed to be their national interests, though they often disagreed

over the methods to be employed and the interests to be protected. Cer-

tainly some elasticity was requi red, both in terms of m aking laws th at

applied to crime s that had some internat ional or tra nsnational a spect,

and of enforcing those laws against the perpetrators by obtaining physi-

cal custody of them. However, national chauvinism regarding criminal

law regimes generally meant that the exercise of criminal jurisdiction

was hard fought and jealously guarded among states, and the crim i-

nal element was u sually able to ex ploit the gaps that re sulted. In more

modern times, conf‌lict often aris es regarding the application of human

rights to cr iminal process, which var ies signif‌icantly among certain

groups of states.

Today, the i nternational legal framework displays the great strides

that have been made in en hancing inter-state cooperation as govern-

ments have sought to d raw the net around international and transn a-

tional crime more tightly. Yet the bulk of the entire edif‌ice still rests, as

it probably must, on trying to coordinate the exercise of jurisdiction on

the national level, and the crimina ls are still able to ex ploit the weak-

nesses. Many treatie s have been concluded that provide some elasticity

of jurisdiction, though these have been done on a crime-by-crime basis

and, with certain e xceptions, bind only t hose states which agree to be

bound. The attempts at supra-national jurisd iction embodied in the ad

hoc tribunal s, the International Criminal Court (ICC), and the vari-

ous hybrid courts3 are admirable, but limited in scope. Jurisd iction still

causes problems, and states need r ules, embodied in inter national law,

to solve these problems.

From a historical perspective, it might seem odd to start from the

leve l of int ernat ional law, sin ce the domest ic cri mina l law j uris dictio n of

states clearly operated, at least in some prototypical form, well before the

f‌irst tentative gropings of the inter-state legal order. Specif‌ic to this text,

it is necessary to gr asp some of the foundations of Canadian cr iminal

law, not to mention our constitutional structure, in order to ascertain

how international and transnational c riminal law manifest themselves

in (and as) Canadian law; certainly, Canadian cr iminal law can be en-

tirely understood with little, if any, reference to international law sourc-

es. However, it is the interaction of the t wo bodies of law which is key.

As explored in the previous chapter, both customary and treaty-based

2 Libman v. The Queen, [1985] 2 S.C.R. 178 at para. 63.

3 See Chapter 4.

INTERN ATIONAL AND TR ANSNATIONAL CRIM INAL LAW50

international law are the law of the land to the extent that t hey bind

Canad a on the internat ional level and are implemented or i ncorporated.

Thus, as soon as the inquiry is taken beyond our borders in some way,

jurisdictional problems emerge th at possibly would never occur at the

purely domestic level, or at least cannot (or should not) be solved with-

out some recourse to international law. The relationship is symbiotic.

This interrelationship, in turn, makes jurisdiction a very f‌luid con-

cept, as its var ious features and manifestations are inter related. Juri s-

dictional problems c an be very complex and can be diff‌icult to trace

through in a linear manner. This chapter will lay out the basic concepts

that w ill allow the re ader to understand wh at jurisdiction is and how

it is exercised. It wil l then review the international law regarding the

exercise of criminal jurisdiction by states, which wi ll provide greater

insight into the juris dictional issues that arise on t he domestic level.

B. essentIAl deFInItIons And concePts

1) Jurisdiction Def‌ined

The way in which the ter m “jurisdiction” should be def‌ined depends a

great deal on the context in which it is used. At domestic law, generally

speaking, “jur isdiction” simply refers to the ability of the st ate to exer-

cise some form of power, coercive or other wise, over person s, places,

things (including property), and events. This power may be exercised

by various agencies of the state — the legisl ature, the executive, the

courts, or regulatory bodies that receive delegated power from one of

those sources — and is def‌ined and delim ited by whatever the powers

of those agencies happen to be.

At international law, “juris diction” similarly refers to the legal pow-

ers of the state, but more importantly, determines what one state legally

may do vis-à-vis other states. It is “the term that descr ibes the limits of

legal competence of a State or other reg ulatory authorit y . . . to make,

apply and enforce rules of conduct upon persons.”4

2) Domestic, Extraterritorial, and Concurrent Jurisdiction

The ability and ent itlement of a state to exercise its powers is a func-

tion of state sovereignty. At international law, a ll st ates a re sovereign

4 A.V. Lowe, “Juris diction” in Malcolm Evans, ed., Inter national Law (Oxford:

Oxford Universit y Press, 2003) at 329.