The Jurisdictional Status Quo in Canada and Internationally
| Author | Steve Coughlan, Robert J. Currie, Hugh M. Kindred, Teresa Scassa |
| Pages | 29-79 |
CHAPTER
3
The
Jurisdictional
Status
Quo
in
Canada
and
Internationally
The
goal
of
this
chapter
is
to
be
both
descriptive
and
analytical.
We
will
attempt
to
describe
the
current
state
of
international
law
regarding
the
exercise
of
extraterritorial
jurisdiction
by
states,
expanding
on
some
of
the
basic
definitional
material
in
Chapter
i.
We
will
also
examine
where
and
how
that
law
is
implemented
into
Canadian
law
and
state
practice,
which
we
will
then
briefly
compare
to
the
law
and
practice
of
other
states
and/or
groups
of
states.
This
exercise
is
also
necessarily
analytic
al,
in
that
it
deals
with
bodies
of
international
and
domestic
law
that
are
symbiotically
linked,
but
at
the
same
time
encompass
a
broad
range
of
diverse
and
sometimes
inconsistent
principles
and
practices.
Accord
ingly,
we
will
adapt,
formulate,
and
use
some
terms
and
categories
that
will
allow
us
to
frame
the
overall
discussion
and
help
the
reader
to
fol
low
the
thread
of
the
arguments
through
this
book.
A.
JURISDICTION
IN
INTERNATIONAL
LAW
i)
Jurisdiction
Defined
The
term
"jurisdiction
”
has
multiple
meanings
and
layers
within
mean
ings,
all
of
which
are
driven
by
the
context
in
which
it
is
used.
General
ly
the
term
"describes
the
limits
of
legal
competence
of
a
state
or
other
regulatory
authority
...,
to
make,
apply,
and
enforce
rules
of
conduct
upon
persons.
”
1
Domestically
speaking,
jurisdiction
is
the
ability
of
the
1
Vaughan
Lowe
&
Christopher
Staker,
"Jurisdiction"
in
Malcolm
Evans,
ed,
International
29
30
•
LAW
BEYOND
BORDERS
state,
whether
via
the
legislature,
the
executive,
or
the
courts,
to
exert
power
over
persons,
places,
and
things.
A
discussion
of
extraterritoriality,
however,
necessarily
engages
the
state
’
s
ability
to
exert
its
power
in
ways
that
involve
and
affect
people,
places,
and
things
that
are
beyond
its
borders.
In
the
international
legal
system,
the
state
is
essentially
a
territorial
entity
and
each
state
enjoys
plenary
jurisdiction
within,
and
exclusive
control
over,
its
territory.
2
Any
act
that
exerts
power
outside
the
state
’
s
territory
necessarily
impli
cates
the
interests
of
other
states.
This
is
manifestly
so
where
the
act
in
question
affects
another
state's
territory
or
citizens,
as
this
quite
direct
ly
engages
the
interests
of
the
second
state.
It
is
equally
true,
however,
even
for
areas
such
as
the
high
seas
or
outer
space.
Because
no
state
has
plenary
jurisdiction
in
these
areas,
all
states
have
at
least
a
conceptual
interest
in
regulating
the
manner
in
which
any
other
state
acts,
so
as
to
safeguard
their
own
interests.
Accordingly,
the
focus
here
must
be
on
jurisdiction
in
its
inter
national
law
meaning.
This
invokes
a
number
of
different
concepts
and
relationships.
Most
importantly,
jurisdiction
at
international
law
"reflects
the
basic
principles
of
state
sovereignty,
equality
of
states
and
non-interference
in
domestic
affairs.
”
3
As
explored
in
the
next
section,
it
is
an
overarching
concept
that
provides
a
legal
basis
for
states
to
sort
out
what
each
may
do,
and
not
do,
particularly
outside
their
borders.
2)
Jurisdictional
Actors:
A
Public
Law
Concept
In
this
book
we
discuss
the
justifications
for,
and
limitations
upon,
act
ing
extraterritorially.
It
is
vital
at
the
outset
to
recognize
that
jurisdiction
Law,
3d
ed
(Oxford:
Oxford
University
Press,
2010)
313
at
313
[Lowe
&
Staker].
And
see
Bruno
Simma&
Andreas
Müller,
"Exercise
and
Limits
of
Jurisdiction"
in
James
Crawford
&
Martti
Koskenniemi,
eds,
The
Cambridge
Companion
to
International
Law
(Cambridge,
UK:
Cambridge
University
Press,
2012)
134
[Simma&
Müller],
2
See,
generally,
Hugh
M
Kindred
&
Phillip
M
Saunders,
eds,
International
Law:
Chiefly
as
Interpreted
and
Applied
in
Canada,
7th
ed
(Toronto:
Emond
Montgomery,
2006)
ch
2
[Kindred
&
Saunders],
3
Malcolm
N
Shaw,
International
Law,
6th
ed
(Cambridge,
UK:
Cambridge
University
Press,
2008)
at
645-
Indeed,
Simma
and
Müller
offer
the
intriguing
observation
that
"it
should
not
come
as
any
surprise
that
the
relations
privileged
by
[the
law
of
juris
diction]
reflect
fundamental
normative
choices
underlying
the
international
legal
order
itself.
In
other
words,
in
the
micro-discipline
of
jurisdiction
the
macro-princi
ples
of
contemporary
international
law
become
manifest"
(Simma
8i
Müller,
above
note
1
at
137).
The
jurisdictional
Status
Quo
in
Canada
and
Internationally
•
31
is
an
inherently
public
law
concept.
One
of
the
building
blocks
of
the
lit
erature
regarding
the
law
of
jurisdiction
has,
for
many
decades,
4
been
the
division
of
the
state
into
three
entities
for
the
purpose
of
exercising
jurisdiction.
5
These
familiar
branches
are:
the
legislative
or
prescriptive
branch,
which
refers
to
the
ability
of
the
state
to
make
and
apply
laws
to
subject
matter,
whether
that
subject
matter
involves
wholly
domestic
matters
or
touches
on
matters
outside
the
state's
territory;
the
enforce
ment
or
executive
branch,
which
refers
to
the
state's
ability
to
act
in
such
a
manner
as
to
give
effect
to
its
laws
(including
the
ability
of
police
or
other
government
actors
to
investigate
a
matter,
which
the
Supreme
Court
of
Canada
has
referred
to
6
as
investigative
jurisdiction);
and
the
ju
dicial
or
adjudicative
branch,
which
refers
to
the
ability
of
a
state
’
s
courts
to
adjudicate
cases,
and
particularly
for
our
purposes,
those
with
for
eign
elements.
Here,
we
will
use
the
terms
legislative,
enforcement,
and
adjudicative
to
categorize
state
actions.
Accordingly,
any
action
taken
by
a
state
that
can
be
called
an
exer
cise
of
jurisdiction
must
ultimately
go
through
one
or
more
of
these
branches.
The
exercise
of
jurisdiction
operates
across
a
spectrum
of
subject
matter,
and
jurisdiction
is
a
function
of
the
level
of
state
inter
action
with
or
intrusion
into
the
subject
matter.
Depending
on
the
sub
ject
matter,
there
may
be
an
exercise
of
legislative,
executive,
or
judicial
jurisdiction
—
or
there
may
be
a
combination
of
any
two
or
three
of
them.
In
fact,
it
is
rarely
an
action
of
only
one
branch
of
the
state
that
is
implicated.
For
example,
as
is
often
noted,
while
a
state
may
nominally
extend
legislative
jurisdiction,
a
practical
exercise
of
that
jurisdiction
is
not
possible
unless
the
state
can
lawfully
gain
both
legislative
and
en
4
For
the
classic
exposition
see
Michael
Akehurst,
“
Jurisdiction
in
International
Law
”
(1972-73)
46
Brit
YB
Int
’
l
L145
at
145.
See
also
FA
Mann,
"The
Doctrine
of
Jurisdic
tion
in
International
Law
”
(1964-I)
111
Rec
des
Cours
1
and
Stephen
Coughlan
et
al,
"Global
Reach,
Local
Grasp:
Constructing
Extraterritorial
Jurisdiction
in
the
Age
of
Globalization"
(2007)
6:1
CJLT
29
[Coughlan
etal],
5
Other
international
law
writing
and
jurisprudence
often
refers
to
two
categories,
"prescriptive"
and
"enforcement"
jurisdiction,
with
adjudicative
jurisdiction
being,
at
most,
a
sub-principle
of
enforcement
(fora
recent
example,
see
Gideon
Boas,
Public
International
Law:
Contemporary
Principles
and
Perspectives
(Cheltenham,
U
K:
Ed
ward
Elgar,
2012)
at
246).
In
our
view,
that
typology
is
better
suited
for
purely
crimi
nal
law
matters.
6
In
R
v
Hope,
at
para
58
[Hape],
the
Court
adopted
this
term
as
used
by
the
current
authors
in
Coughlan
et
al,
above
note
4.
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