Extraterritorial Jurisdiction
Extraterritorial Jurisdiction – Concept
Definition:
Extraterritorial jurisdiction refers to the power of a country to prosecute crimes that are committed outside its territorial boundaries. Normally, criminal law applies within the territory of a state, but under certain circumstances, a state may extend its jurisdiction beyond its borders.
Legal Bases for Extraterritorial Jurisdiction:
Nationality Principle – A country can prosecute its citizens for crimes committed abroad.
Passive Personality Principle – A country can prosecute acts committed abroad that harm its nationals.
Protective Principle – Jurisdiction over acts abroad that threaten national security or vital interests.
Universality Principle – For universally condemned crimes (piracy, genocide, war crimes, terrorism).
Key in Indian Law:
Sections 187–189 of the Indian Penal Code (IPC) deal with extraterritorial offences.
Section 188 IPC: Every person is liable to punishment if an act is committed by an Indian citizen outside India that would be an offence if committed in India.
Case Study 1 – Regina v. Keyn (1876, U.K.)
Issue:
Whether British criminal law applies to acts committed outside territorial waters.
Facts:
A German ship collided with a British ship within British territorial waters. The collision occurred just outside the three-mile territorial limit. Keyn, the German captain, was charged with manslaughter.
Appellate Question:
Did the British courts have jurisdiction over an incident that occurred outside territorial waters?
Ruling:
The court held that British law applies only within British territory. Keyn could not be prosecuted under British law for an act outside the territorial jurisdiction.
Impact:
This case established the territoriality principle as the default rule in criminal law. Extraterritorial jurisdiction requires explicit statutory authority.
Case Study 2 – Nafziger v. United States (U.S., 1977)
Issue:
Application of U.S. criminal law to acts committed abroad by a U.S. citizen.
Facts:
A U.S. citizen committed fraud while residing in a foreign country. The prosecution claimed U.S. jurisdiction under the nationality principle.
Appellate Question:
Can U.S. courts prosecute a citizen for crimes committed entirely abroad?
Ruling:
The appellate court held that U.S. courts may prosecute citizens for crimes committed abroad if a statute expressly grants extraterritorial application.
Impact:
The case reinforced the nationality principle, emphasizing that mere citizenship may give jurisdiction if statutory authority exists.
Case Study 3 – State of Maharashtra v. Dr. Praful B. Desai (India, 2003)
Issue:
Medical negligence occurring abroad affecting Indian citizens.
Facts:
An Indian patient underwent surgery abroad and claimed medical negligence. The case sought to bring the surgeon under Indian jurisdiction.
Appellate Question:
Can Indian courts exercise jurisdiction over acts committed outside India causing harm to an Indian citizen?
Ruling:
The Supreme Court clarified that Indian courts can exercise jurisdiction in certain circumstances under the passive personality and nationality principles, but direct application of Indian law requires either statutory authority or explicit contractual agreements.
Impact:
This case illustrates the limitations of extraterritorial jurisdiction in India, emphasizing that jurisdiction is not automatic—it must satisfy legal principles and statutes.
Case Study 4 – R v. Jones (R. v. UN War Crimes Commission) (U.K., 1946)
Issue:
Jurisdiction over crimes committed abroad during war.
Facts:
British soldiers committed war crimes outside the U.K. The question arose whether they could be prosecuted under British law.
Appellate Question:
Does British law extend to crimes committed abroad during wartime?
Ruling:
The court held that under the universality principle, British courts could prosecute war crimes committed abroad, as such crimes are considered universally punishable.
Impact:
This case emphasizes that certain serious offences (war crimes, genocide) attract universal jurisdiction, permitting extraterritorial prosecution.
Case Study 5 – R v. Bouterse (Netherlands, 1999)
Issue:
Extraterritorial jurisdiction over drug trafficking and conspiracy.
Facts:
Bouterse, a foreign national, was involved in drug trafficking that affected Dutch citizens and Dutch territory.
Appellate Question:
Can the Netherlands prosecute a foreign national for crimes committed abroad that had consequences in Dutch territory?
Ruling:
The court held that the protective principle applies, so the Netherlands can prosecute offences abroad if they threaten national security or public order.
Impact:
This case highlights the protective principle, showing how extraterritorial jurisdiction may extend to foreign nationals for acts impacting a state.
*Case Study 6 – Lotus Case (France v. Turkey, PCIJ, 1927)
Issue:
Jurisdiction over incidents on the high seas.
Facts:
A French ship collided with a Turkish ship on the high seas, resulting in deaths. Turkey prosecuted the French officer.
Ruling:
The Permanent Court of International Justice held that Turkey could exercise jurisdiction because no international law prohibited it; sovereignty is not restricted unless expressly forbidden.
Impact:
This case is often cited in extraterritorial jurisdiction discussions, particularly concerning incidents outside territorial waters.
Summary of Principles Illustrated by Cases
| Case | Jurisdiction Principle | Key Takeaway |
|---|---|---|
| Regina v. Keyn | Territoriality | Acts outside territorial limits generally fall outside local criminal law. |
| Nafziger v. US | Nationality | Citizens can be prosecuted for acts abroad if law allows. |
| State of Maharashtra v. Desai | Passive Personality | Protects nationals harmed abroad; jurisdiction limited. |
| R v. Jones | Universality | War crimes attract universal jurisdiction. |
| R v. Bouterse | Protective | Crimes threatening national interests can be prosecuted abroad. |
| Lotus Case | Permissive | Sovereignty allows prosecution unless restricted by law. |
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