I am very pleased to announce that Irwin Law has just published Law Beyond Borders: Extraterritorial Jurisdiction in an Age of Globalization, which was co-authored by Steve Coughlan, Hugh Kindred, Teresa Scassa and myself. The publisher's blurb provides a short summary:
"This book is about the reach of law beyond state borders from a Canadian perspective. It investigates the scope of the legal and practical power of Canada to assert, and to respond to foreign assertions of, extraterritorial jurisdiction. Ultimately, the authors articulate a theoretical and analytical framework to aid decision making by law and policy makers when Canada is faced with the issue of whether to act extraterritorially. The book revisits Canadian jurisdictional principles and practices in a way that will resonate with lawyers and legal policy makers of all kinds."
On her blog, my friend and co-author Teresa Scassa provides a more detailed account:
"Our book begins with a consideration of the twin forces of globalization and technological change, and the way in which both forces have led to a significant increase in the number of instances in which states may feel the need to act extraterritorially. We also consider how these forces have also undermined the Westphalian notion of exclusive territorial sovereignty. We then review the status quo regarding state jurisdiction both in Canada and internationally, before articulating an important distinction between extraterritoriality, and extended territoriality. Particular consideration is given in this respect to the context of the Internet. The book then poses the question as to when it is appropriate for a state to act extraterritorially. Seven case studies are offered, including the application of human rights law, accountability for human rights abuses, transnational data protection, international terrorism, child sex tourism, internet gambling, and virtual worlds. The book concludes with an articulation of our analytical framework."
This book, which originated in a report to the Law Commission of Canada in 2008, took us approximately six years to research and write (with, it should be noted, the assistance of SSRHC). I can say frankly that it was a tough slog. Extraterritorial jurisdiction is an extremely difficult topic to contain, because it is no small task even to figure out what it is, let alone effectively describe or analyze it. It might be described as a somewhat uncertain body of international law rules regarding when states can lawfully exercise jurisdiction over people, places and things entirely outside their borders. These uncertain international law rules are then applied by states -- their governments and their courts -- across a large range of substantive law areas, and the manner in which they are applied is, in part, driven by the nature of the subject matter over which states are trying to exercise their jurisdictional powers.
As we explore in the book, globalization and the global interconnectedness of communications is putting some stress on these rules. This is because they emerge from a legal paradigm based on the territorial sovereignty of states, which depends upon being able to say, with certainty, that a particular person or thing is "there" in the physical and geographical sense. That is something we can say with less and less certainty these days, hence the stress, and hence the increasing uncertainty in the "rules" around when states can and cannot exert power over things outside their borders.
At the risk of sounding immodest, I think this book represents some important work on a difficult but increasingly front-burner topic. The intellectual task we took on was significant, and I'm quite sure all four of us are very pleased with the result of the work we put in. There is no other book quite like it in Canadian legal literature. In the end, our hope is that it will be useful for the practitioners and law- and policy-makers for whom it was intended. While we do ultimately formulate a policy- and law-making template, a large amount of the book is spent simply sorting out how the rules regarding extraterritorial jurisdiction work, which we hope could be of assistance to judges and lawyers of all sorts.
For regular readers of this blog, there is significant international and transnational criminal law content in the book. The international law rules on extraterritorial jurisdiction were mostly generated to deal with conflicts of jurisdiction between states over criminal matters, and both our analysis and policy prescriptions use all of this as a starting point. We spend an entire chapter on the principle of extended territoriality, which is the notion that states may take jurisdiction over subject matter that resides or occurs only partly on their territories, and partly outside. This chapter contains a fair bit of material on "cross-border offences" and the jurisdictional problems which arise. There are also case studies on terrorism, child sex tourism, and various forms of cybercrime including illegal gambling.
I would add that, at the modest price of $80 (and being available for some e-readers as well), it would make an excellent stocking stuffer for the lawyer or judge in your family. You can order it directly from the publisher here.