Jurisdiction over International and Transnational Crime

AuthorJoseph Rikhof/Robert J Currie
It is impossible to engage fully with i nternational and t ransnational
crimina l law without a solid understanding of juri sdiction. Specif‌ically,
it is important to comprehend both the international law principles that
govern when and how states may exercise cr iminal jurisdiction, and the
manner in which the domestic law implements, incorporates, and other-
wise interacts with these principles.
Why is this so? Over a centur y ago, Lord Halsbury wrote that “all
crimes are loca l . . . jurisdiction is only territorial.”1 The former statement
was not true even at the time; the historical record bears out that by the
late nineteenth century b oth crime and crimina ls were mobile — on foot,
by mail, by trai n, and by ship. Malfeasants 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 tra nspor-
tation and communication technologies have meant that the world is, at
least potentially, the oyster of the modern cri minal.
While Lord Halsbur y’s latter dictum certainly spoke to the approach
the English crim inal law traditiona lly took towards jurisdiction, the
international perspective was and is far more complex. From early days
both domestic and international law regimes were required to develop
means to deal w ith crimes that occurred, as L a Forest J once put it, “both
1 Macleod v Attorne y-General for New South Wales, [1891] AC 455 at 458.
here and there.”2 States shared among them the desire to reach and pros-
ecute crimes that had negative effects on whatever they deemed to be
their national intere sts, though they often disagreed over the methods to
be employed and the interests to be protected. Cert ainly, some elasticity
was required, both in ter ms of making laws that applied to crimes that
had some international or tr ansnational aspect, and of enforcing those
laws against the per petrators by obtaining physica l custody of them.
However, national chauvinism regardi ng criminal law regimes generally
meant that the exercise of criminal juri sdiction was hard fought and
jealously guarded among states, and t he criminal element was u sually
able to exploit the gaps that resulted. In more modern times, conf‌lict
often arises regarding the application of human rights to cr iminal pro-
cess, which varies sig nif‌icantly among certain groups of states.
Today, the international legal framework displays the great strides
that have been made in enhancing inter-state cooperation as govern-
ments have sought to draw the net around international and trans-
national 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 criminal s are still able to exploit the weak-
nesses. Many tre aties have been concluded that provide some ela sticity
of jurisdiction, though thes e have been done on a crime-by-crime ba sis
and, with certa in exceptions, bind only those states th at agree to be
bound. The attempts at supra-national jurisdict ion embodied in the ad
hoc tribunals, t he International Criminal Court (ICC), and the various
hybrid court s3 are admirable, but limited in scope. Juri sdiction still
causes problems, and states need r ules, embodied in international law,
to solve these problems.
From a historical perspect ive, it might seem odd to start from the
level of international law, since the domestic crim inal law jurisd iction
of states clearly operated, at least in some prototypic al form, well before
the f‌irst tentative gropings of the inter-state legal order. Specif‌ic to this
text, it is necessar y to grasp some of the foundations of Canadian cri m-
inal law, not to mention our constitutional structure, in order to lear n
how international and tr ansnational criminal law mani fest themselves
in (and as) Canadian law; certai nly, Canadian crimin al law can be
entirely understood with little, if any, reference to international law
sources. However, it is the interaction of the two bodies of law which
is key. As explored in the previous chapter, both customary and treaty-
based internat ional law are the law of the land to the extent that they
2 Libman v The Quee n, [1985] 2 SCR 178 at para 63 [Libman].
3 See Chapter 4.
Jurisdict ion over International and Transnat ional Crime 53
bind Canada on the inter national level and are implemented or incor-
porated. Thus, as soon as the inquir y is taken beyond our borders in
some way, jurisdictional problems emerge problems that possibly
would never occur at the purely domestic level, or at least cannot (or
should not) be solved without some recourse to international law. The
relationsh ip is symbiotic.
This interrelationship, in turn, makes jurisdiction a very f‌luid con-
cept, as its various feature s and manifestations are interrelated. Juris-
dictional problems can be very complex and diff‌icult to trace through
in a linear man ner. This chapter will lay out the basic concepts that
will allow the reader to understand what jurisdiction is and how it
is exercised. It wil l then review the international law regarding the
exercise of crimi nal jurisdiction by states, which will provide greater
insight into the jurisdictional issues th at arise on the domestic level.
1) Jurisdiction Def‌ined
The way in which the term “juris diction” should be def‌ined depends a
great deal on the context in which it is used. At domestic law, generally
speaking, “jurisdiction” simply refers to the ability of the state to exer-
cise some form of power, coercive or otherwise, over persons, places,
things (including property), and events. This power may be exercised
by various agencies of the state the legislature, the executive, the
courts, or regulatory bod ies that receive delegated power from one of
those sources and is def‌ined and delimited by whatever the powers
of those agencies happen to be.
At international law, “jurisdiction” similarly refers to the legal pow-
ers of the state, but more important, determine s what one state legally
may do vis-à-vi s other states. It is “the term that des cribes the limit s
of legal competence of a State or other regulatory authority . . . to make,
apply and enforce rules of conduct upon persons.”4
2) Domestic, Extraterritorial, and Concur rent Jurisdiction
The ability and entitlement of a state to exercise its powers is a func-
tion of state sovereignty. At international law, all states are sovereign
equals, and each ha s a duty not to interfere with the domestic affairs,
4 AV Lowe, “Jurisdiction” in Malcol m Evans, ed, International Law (Ox ford :
Oxford Universit y Press, 2003) at 329.

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