Extraterritorial criminal jurisdiction and the rule of law
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Nations states are demonstrating an increased willingness to assert jurisdiction over conduct occurring extraterritorially. This paper considers why that may be the case, and seeks to examine the extent to which assertions of extraterritorial criminal jurisdiction are consistent with the rule of law. Case studies of assertions of extraterritorial jurisdiction are presented and analysed using five principles as benchmarks. To that end, the rule of law is taken to refer to the following five principles: 1) The law must be both readily known and available, and certain and clear; 2) The law should be applied to all people equally, and operate uniformly in circumstances which are not materially different; 3) All people are entitled to a fair trial; 4) There must be some capacity for judicial review of administrative action; and 5) The Executive arm of government should be subject to the law and any action undertaken by the Executive should be authorised by law. The paper will suggest that there are currently inadequate legal frameworks for the regulation of extraterritorial jurisdiction.
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