The Presumption against Extraterritorial Criminal Jurisdiction

Abstract

Th ere is signifi cant consensus that the fact that a given criminal wrong has been perpetrated on the territory of a particular state is a fundamental, even a decisive, reason why that state has the right to prosecute and punish the perpetrator. Th is basic insight has been captured by what is called the principle of territoriality – the core and most widely accepted rule on criminal jurisdiction under both domestic and international law. Th ere is some normative work on this principle, albeit far less than its centrality would lead one to assume. 1 By contrast, much less attention has been paid to whether there is – and whether there should be – a presumption against extraterritorial criminal jurisdiction. Th at is, whether or when it would be pro tanto unlawful under international law for a state to prosecute and punish an off ence perpetrated extraterritorially...