Law Commission Study on Extraterritoriality

John Gregory’s list-serv this morning brought to our attention a new study by Dalhousie profs, Steve Coughlan, Robert J. Currie, Hugh M. Kindred and Teresa Scassa entitled Global Reach, Local Grasp: Constructing Extraterritorial Jurisdiction in the Age of Globalization. This is part of the Commission’s Global Governance project that we’ve discussed before.

Teresa summarizes her team’s work:

The study explores the concept of extraterritorial action and develops a nuanced view of extraterritoriality. It considers the various means by which extraterritorial action may be taken, and examines the policy justifications that have primarily motivated Canada to act extraterritorially in the past. It then considers the extent to which the lessons of the past apply to the emerging context of globalization, with particular attention to issues relating to the internet, personal data protection, human rights and competition. The study concludes with a practical analytical framework for assisting in determining when Canada should act extraterritorially.

This is a useful update of the Tackaberry study.

The Dalhousie Study concludes:

Canada should support the exercise of extra-territorial jurisdiction in a manner that encourages and supports an international society that is ordered, fair, just and peaceable, rather than chaotic and conflicted. Hence:

a) All exercises of extraterritorial jurisdiction should, to the greatest extent possible, be consistent with the larger interests of inter-state comity, and apply the principles of non-intervention, accommodation, mutuality and proportionality.

b) Canada should regulate extraterritorial conduct only if it has a bona fide and substantial connection to Canada.

c) International law agreements should be implemented and executed in good faith. This principle is particularly important in regard to human rights treaties in connection with jurisdiction over the person.

d) Canada should uphold the international rule of law by extending its jurisdiction in a manner that avoids having lawless territories.

They raise six questions for policymakers:

Question 1: Can the desired goals be accomplished, or largely accomplished, or largely so, based on a real and substantial

Question 2: Will the proposed measures be recognized under jurisdictional principles at international law as legitimate steps for Canada to take?

Question 3: If the proposed measures are not recognized at international law as legitimate steps for Canada to take, is this one of the rare instances where it is worthwhile to act in the absence of international consensus? In particular, is the issue of such great significance that it is worth suffering whatever negative consequences might flow from such unilaterality. Further, is there a realistic prospect that the measures will achieve their ends (whether those are actually to enforce rules, to change international opinion, or some other goal) without the initial support of other nations?

Question 4: If the proposed measures are recognized at international law as legitimate steps for Canada to take, are they also measures which are consistent with the traditional Canadian approach to extraterritoriality? If they are not, can a departure from that tradition be justified because of the seriousness of the problem to be addressed or other factors?

Question 5: If extraterritorial action is, in the circumstances, an approach Canada both can and should take, consideration must be given to the proper method of acting extraterritorially. Where the goal is enforcement of Canadian standards outside Canadian territory, this might be accomplished through mandatory legislation where the combination of legislative and judicial mechanisms make enforcement likely. In other circumstances executive action to enlist foreign assistance in enforcing Canadian penal or regulatory laws might be a better approach. Much will depend on the precise goal of the extraterritorial action.

Question 6: Does a cost-benefit analysis of the potential international impacts of this extraterritorial action indicate that it is the preferable route for Canada to take? In particular, do the potential responses by other states (if any) represent more in the way of costs than Canada is willing to bear in order to fulfil its extraterritorial objective?

To editorialize, the study is very useful, though one wonders who it is really aimed at: Parliament (unlikely), the judiciary (well the state of Canadian law is clear enough, though its application in a bordeless world can be problematic) or more likely, those at the Pearson Building who calibrate Canada’s diplomatic stances.

But it seems unlikely that it will have that much resonance in an Ottawa where every measure is judged in terms of increasing electoral support in Québec and the winning of the next election and in Foggy Bottom, where the State Department is still articulating American needs in terms of a post-September 11 paradigm, in which traditional concerns of national jurisdiction have a lesser weightFor which see todays’ news on the long journey of the NatWest Three.