A Prospective Framework for Extraterritorial Action

AuthorSteve Coughlan, Robert J. Currie, Hugh M. Kindred, Teresa Scassa
Pages299-316
CHAPTER
8
A
Prospective
Framework
for
Extraterritorial
Action
A.
THE
GOALS
OF
AN
ANALYTIC
FRAMEWORK
The
exploration
throughout
this
book
of
the
conceptual
foundations
and
Canadian
practice
of
extraterritorial
jurisdiction
leads,
in
this
final
chapter,
to
our
projection
of
a
framework
for
future
extraterritor
ial
action.
The
experience
recounted
here
calls
for
the
promotion
of
a
measured,
restrained,
and
judicious
approach
to
any
consideration
of
extending
Canada's
claim
to
jurisdiction.
A
major
question
must
always
be
not
merely
how
to
act
extraterritorially,
but
whether
to
do
so
at
all.
The
template
that
follows
is
an
attempt
to
give
guidance
in
answering
both
of
those
questions.
However,
as
we
have
repeatedly
stated,
no
analytical
framework
can
offer
guidance
on
the
wisdom
of
acting
extraterritorially
in
a
given
case
that
is
a
decision
for
policy-makers,
based
on
their
views
of
the
desirable
social
policy
for
Canada.
What
follows,
therefore,
is
an
ana
lytical
tool
that
aims
to
set
out
the
various
considerations
to
take
into
account
in
deciding
whether
extraterritorial
action
is
a
practical
and
vi
able
approach
to
whatever
issue
is
perceived
as
a
social
problem.
This
tool
does
not
attempt
to
say
what
such
problems
their
solutions
might
be.
Further,
as
emphasized
above,
no
single
answer
can
be
offered
to
the
question
of
when
and
whether
Canada
should
act
extraterritorially.
What
we
present,
therefore,
is
a
set
of
general
legal
and
policy
objectives
that
are
particular
to
the
exercise
of
extraterritorial
jurisdiction
and
that
299
300
LAW
BEYOND
BORDERS
will
underpin
decision
making,
followed
by
a
series
of
questions
aimed
at
deciding
whether
extraterritorial
action
is
advisable
in
any
given
situ
ation,
in
the
sense
that
it
is
a
practical
response
to
the
issue.
As
part
of
that
analysis,
the
question
of
what
sort
of
extraterritorial
action
might
be
appropriate
will
be
incorporated.
Further,
within
each
question
we
will
point
to
a
number
of
considerations
that
will
help
guide
the
analysis.
This
framework
is
meant
to
guide
decision
making
by
policy-mak
ers;
that
is,
of
the
three
branches
relevant
to
any
discussion
of
extraterri
torial
action
legislative/prescriptive,
executive/enforcement,
and
judicial/adjudicative
this
framework
primarily
is
directed
at
the
first.
The
extent
to
which
action
by
the
first
will
create
the
need
for
the
in
volvement
of
the
latter
two
should
be,
however,
a
relevant
consideration.
We
will
propose
a
series
of
questions
that
ought
to
be
asked
by
policy-makers
when
deciding
whether
to
act
extraterritorially.
We
present
them
in
the
form
of
sequential
steps
towards
a
decision.
Within
this
series
of
questions,
we
suggest
there
are
three
important
variables
to
be
taken
into
account.
We
do
not
suggest
these
three
variables
ac
count
for
every
consideration;
but
they
often
function
to
provide
a
good
general
guide
to
whether
the
contemplated
action
will
be
problematic,
and
if
so,
to
what
extent.
The
first
variable
is
the
intrusiveness
of
the
action
proposed
by
Canada
on
the
international
stage.
In
that
context,
it
is
important
to
consider
the
gradation
from
extraterritorial
impact
without
true
extra
territorial
action,
to
extraterritorial
action
undertaken
in
concert
with
one
or
more
other
states,
to
unilateral
extraterritorial
action.
Obviously,
the
further
one
goes
along
that
scale,
the
greater
the
intrusiveness,
and
so
the
stronger
the
justification
needed.
The
second
variable
is
the
nature
of
the
extraterritorial
action.
As
we
discussed
at
length
in
Chapter
6,
extraterritorial
action
can
have
a
variety
of
goals:
broadly,
to
prohibit,
to
control,
or
to
facilitate
activities.
Generally
speaking,
a
greater
justification
is
required
to
prohibit
an
ac
tivity
than
to
facilitate
it.
The
final
variable
to
consider
is
the
subject
of
the
proposed
extra
territorial
legislation:
to
whom
will
it
apply?
We
have
noted
that
some
legislation
affects
public
actors
while
some
affects
private
actors.
On
oc
casion,
public
actors
may
act
privately.
In
the
case
of
private
actors,
it
will
be
worth
considering
exactly
who
might
be
affected
by
the
legislation.
Is
the
legislation
intended
to
apply
only
to
those
present
in
Canada
at
a
specific
moment;
to
those
with
assets
in
Canada
even
if
they
are
not
per

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