Extraterritoriality in Transnational Criminal Law: The Sovereignty Paradox

It is perhaps no exaggeration to suggest that the field of transnational criminal law (TCL) is one in which extraterritoriality rules. Most states interpret their jurisdiction over offenses occurring within their territory (referred to here, as it is in TCL literature, as “territorial jurisdiction”) as having an extraterritorial aspect. 1 Further, treaties developed to facilitate cooperation in addressing certain serious transnational offenses (the “suppression conventions”) often require that states assert some forms of jurisdiction over offenses occurring outside their territories (referred to here, as it is in TCL literature, as “extraterritorial jurisdiction”), and permit assertions on additional bases. 2 While these jurisdictional provisions provide a means for relatively weaker states to reinforce their sovereignty, 3 they have also been a means through which more powerful states extend their power, giving new effect to the imperialist roots of extraterritoriality. 4 Alongside this treaty-based expansion of state jurisdiction, there have also been proposals over the years to create international or regional courts to supplement domestic enforcement. Unsurprisingly, a consistent reason for which states advocate in favor of international courts to aid in suppressing transnational crimes is their lack of capacity. 5 Another reason, however, has been that such a court would provide a means for relatively less powerful states to reinforce their sovereignty against intrusions by more powerful states. In this contribution, I resurface some of the reasons states gave in the 1930s for supporting the creation of an international anti-terrorism court and draw parallels with more recent efforts to create international or regional courts for the suppression of transnational crimes. My goal is to highlight how an international court can help resolve the sovereignty paradox created by TCL’s resort to extraterritorial jurisdiction.