Table of Contents
Introduction 608
I. Extraterritoriality's Imperial Origins 613
A. Prescriptive Jurisdiction as Empire 613
B. The New Imperialism 616
C. Contemporary Critiques 621
II. The Right to Self-Determination 623
A. Self-Determination as Decolonization 624
B. Defining the Legal Right 629
C. Territory and Extraterritoriality 631
D. When Extraterritoriality Constitutes Imperialism633
E. Extraterritoriality Without Imperialism634
III. Unlawful Extraterritoriality 636
A. Political Expression637
B. Counterterrorism 639
C. Antitrust 641
D. Data Governance 644
IV. Unjustified Extraterritoriality 648
A. Extraterritoriality's False Promises 649
B. Extraterritoriality's Alternatives 652
V. Conclusion 657
Introduction
More than sixty years have passed since the UN General Assembly solemnly declared “the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations.”Footnote 1 Yet the work of decolonization remains unfinished. A cornerstone of colonial governance survives into the present: great powers still seek to rule the world by applying their laws unilaterally to foreign nationals outside their borders. States extend their laws extraterritorially for a variety of purposes, including to cultivate competitive global markets, strengthen and weaken data privacy, combat foreign terrorism and military aggression, promote human rights abroad, and suppress political dissent at home.Footnote 2 National laws are extraterritorial, for these purposes, if they regulate the conduct of people outside the borders of the lawmaking state, regardless of whether they operate concurrently with, or to the exclusion of, local law.Footnote 3 Supporters celebrate extraterritoriality's potential to bolster international norms, promote cooperation, and generate global public goods.Footnote 4 As during the colonial era, however, extraterritoriality also enables powerful states to dominate weaker states. Critics therefore condemn extraterritoriality as a pernicious form of “legal imperialism”Footnote 5 that advances a “neocolonial agenda.”Footnote 6
Despite the troubling historical associations between extraterritoriality and empire, few international lawyers dispute that states have broad authority to extend their national laws globally. Conventional wisdom holds that a state's prescriptive jurisdictionFootnote 7 reaches outside national borders in a variety of circumstances.Footnote 8 The influential Restatement (Fourth) of the Foreign Relations Law of the United States proclaims that a state may regulate extraterritorially as long as “there is a genuine connection between the subject of the regulation and the state seeking to regulate.”Footnote 9 Hence, a state may extend its laws not only to “persons, property, and conduct within its territory” (territoriality)Footnote 10 but also to extraterritorial “conduct that has a substantial effect within its territory” (effects);Footnote 11 “the conduct, interests, status, and relations of its nationals outside its territory” (nationality);Footnote 12 “conduct outside its territory that harms its nationals” (passive personality);Footnote 13 and “conduct outside its territory by persons not its nationals that is directed against [its security] or . . . other fundamental state interests” (protective principle).Footnote 14 A state may even apply its national laws to “certain offenses of universal concern, such as genocide, crimes against humanity, war crimes, certain acts of terrorism, piracy, the slave trade, and torture, even if no specific connection exists between the state and the persons or conduct being regulated” (universal jurisdiction).Footnote 15 Together, these bases for prescriptive jurisdiction are thought to give states sweeping authority to regulate the activities of foreign nationals abroad.
This Article challenges conventional wisdom by arguing that a state's authority to make extraterritorial law is narrower than the international law of prescriptive jurisdiction alone would suggest.Footnote 16 I argue that another foundational norm of international law—the right of peoples to self-determination—limits when states may resort to extraterritoriality. The right to self-determination appears in multilateral treaties, including the International Covenant on Civil and Political Rights (ICCPR)Footnote 17 and the International Covenant on Economic, Social and Cultural Rights (ICESCR).Footnote 18 It also features prominently in regional conventions,Footnote 19 unanimous UN General Assembly resolutions,Footnote 20 and authoritative judgments of international courts and tribunals.Footnote 21 As the International Court of Justice (ICJ) has recognized, the legal authority of the right to self-determination is “irreproachable.”Footnote 22 Nonetheless, international lawyers have yet to account for how self-determination restricts national authority to engage in extraterritorial lawmaking.Footnote 23 This Article aims to correct that oversight, recovering the right to self-determination as a bulwark against legal imperialism.
Under international law, the right to self-determination entitles every people to determine the laws and institutions by which it is governed. The right to self-determination is generally understood to have “internal” and “external” dimensions.Footnote 24 Internal self-determination refers to a people's right to freely pursue its “political, economic, social and cultural development . . . within the framework of an existing state.”Footnote 25 External self-determination includes a people's right to determine whether to submit to foreign governance.Footnote 26 Extraterritorial lawmaking violates the right to external self-determination whenever it subjects a people to uninvited foreign rule.Footnote 27 States are not free to hold themselves out as global lawmakers just because they have prescriptive jurisdiction under international law. Rather, they must exercise restraint to ensure that their national laws do not undermine another people's equal right to self-determination.
Extraterritoriality is not always the enemy of self-determination. In some scenarios, states can extend their national laws abroad without violating another people's right to self-determination. For example, states do not violate the right to self-determination when they apply their laws to their own expatriate nationals, provided that they afford expatriates the full rights and privileges associated with internal self-determination. Extraterritorial laws are also compatible with national self-determination when they incorporate legal norms that another people has accepted, such as those enshrined in multilateral treaties or customary international law. When a people freely embraces legal norms in these ways, foreign extraterritorial laws affirming those norms do not violate the right to self-determination because they do not qualify as alien rule. Thus, the right to self-determination permits extraterritorial lawmaking in service of shared legal norms, while prohibiting states from unilaterally imposing their national laws on non-consenting foreign peoples. Properly understood, therefore, there is no conflict between the right to self-determination and the extraterritorial extension of national laws based on universally accepted norms, such as those enshrined in international human rights law and international criminal law.
The balance of this Article proceeds in four parts. Part I excavates the historical and conceptual links between extraterritoriality and empire. Colonial-era international law generally prohibited states from exercising prescriptive jurisdiction over foreigners abroad, but this constraint applied only to relations between so-called “civilized” nation-states. Other political communities, which were thought to lack the practical capacity for self-governance, were not entitled to freedom from foreign rule. As colonialism receded, extraterritorial lawmaking resurfaced as a favored manifestation of “neo-colonialism,” defined by “imperialism without colonies.”Footnote 28
Part II explains how the twentieth-century decolonization movement represented a global struggle to reclaim national self-government from the tyranny of foreign governance. This struggle catalyzed the development of the right to self-determination under international law. The international community established the right to self-determination to serve, at least in part, as a legal bulwark against the unilateral imposition of foreign law—a defining feature of colonialism. The core of the international right to self-determination is a people's exclusive legal power and privilege to determine the laws and institutions by which it is governed. Whenever a foreign power violates this privilege, it commits an internationally wrongful act. Thus, the right to self-determination limits when states may resort to extraterritoriality.
Despite these concerns, recent years have witnessed a steady expansion of unlawful extraterritoriality. Part III illustrates this phenomenon by highlighting four regulatory domains where extraterritoriality is on the rise: political expression, counterterrorism, antitrust, and data governance. For example, China has threatened to prosecute U.S. citizens on American soil who publicly criticize or protest its government.Footnote 29 Russia has leveraged its criminal code to intimidate and harass foreign officials who oppose its aggression against Ukraine, including a judge and the chief prosecutor of the International Criminal Court (ICC).Footnote 30 European Union (EU) law constrains how Silicon Valley companies conduct e-commerceFootnote 31 and deploy artificial intelligence.Footnote 32 American antitrust law restricts how firms in Africa, Asia, and Latin America price their goods and services.Footnote 33 In these and other areas, the international community's neglect of the right to self-determination has emboldened powerful states and regional organizations to project their laws worldwide in a manner that violates international law.
Part IV critiques conventional policy justifications for these practices. Some legal scholars argue that extraterritorial lawmaking promotes universal values and generates global public goods.Footnote 34 However, states typically extend their laws extraterritorially only after it becomes apparent that their preferred policies lack international support, and they often do so at other nations’ expense. States might have important reasons for resorting to extraterritoriality, such as the desire to suppress transnational terrorism and cyberattacks, but they have other potent options to counter such threats. Thus, there is little reason to suppose that unilateral extraterritorial lawmaking is strictly necessary to protect states and their people from transboundary harm.
Before proceeding to the argument, two final preliminaries are in order. First, the argument developed in this Article is addressed primarily to national legislators and regulators, who are chiefly responsible for ensuring that national laws comport with international law. But the Article also offers valuable guidance to domestic courts, such as the U.S. Supreme Court, which aspire to interpret national laws in a manner compatible with international law.Footnote 35 The right to self-determination is one of the international legal norms that courts should consider when determining the extraterritorial scope of their national laws. Hence, courts should avoid interpreting ambiguous national laws to apply extraterritorially when this would violate another people's right to self-determination.
Second, this Article focuses primarily on criminal and regulatory law because those categories of extraterritorial regulation pose especially grave threats to national self-determination. Whether the right to self-determination has broader ramifications for national legal systems—including conflict of laws doctrine—is a question I reserve for future consideration.Footnote 36
An overarching ambition of this Article is to breathe new life into the (mostly moribund) right to self-determination.Footnote 37 Some prominent legal scholars question whether self-determination remains relevant in a post-colonial world.Footnote 38 In contrast, this Article offers an affirmative vision of the right to self-determination, demonstrating its continuing vitality as a safeguard against imperialism. As long as powerful states aspire to rule the world, the right to self-determination will be necessary to safeguard peoples against legal imperialism. In an era of intensifying great power rivalries, when authoritarian states are weaponizing their laws to expand their global influence, reviving the right to self-determination would contribute to achieving a more free and equitable world order.
I. Extraterritoriality's Imperial Origins
Like many features of international law, extraterritorial prescriptive jurisdiction had its genesis in European imperialism, and it evolved over the twentieth century in response to the shifting demands of the world's great powers.Footnote 39 Recovering this history illuminates the mutually constitutive relationship between extraterritoriality and empire. For centuries, international law enabled imperialism by authorizing states to extend their national laws into distant territories without the consent of the Indigenous inhabitants. Extraterritoriality was not just a useful tool for aspiring empires; it was the defining feature of imperial rule. That extraterritoriality survives into the twenty-first century reflects the enduring imperial ambitions of today's great powers.
A. Prescriptive Jurisdiction as Empire
Before the twentieth century, international law generally prohibited states from regulating the activities of foreign nationals outside their borders. Emer de Vattel emphasized this rule in his influential 1758 treatise, The Law of Nations, explaining that the territorial limits of prescriptive jurisdiction were necessary to respect states as “free and independent” sovereigns:
When a nation takes possession of a country . . . , it is considered as acquiring the empire or sovereignty of it, at the same time with the domain. For since the nation is free and independent, it can have no intention, in settling in a country, to leave to others the right of command, or any of those rights that constitute sovereignty. The whole space over which a nation extends its government, becomes the seat of its jurisdiction, and is called its territory.Footnote 40
Note the reference to “empire.” For Vattel and his contemporaries, empire (imperium) was synonymous with what international lawyers today call “prescriptive jurisdiction,” defined as the “right of sovereign command, by which the nation directs and regulates at its pleasure every thing that passes in the country.”Footnote 41 Prescriptive jurisdiction reflected a nation's exclusive right as a self-determining people “to make laws both in relation to the manner in which it desires to be governed, and to the conduct of the citizens.”Footnote 42 A state's prescriptive jurisdiction therefore extended throughout its territory and to its nationals, wherever located.Footnote 43 Conversely, states lacked jurisdiction to regulate persons, property, or conduct outside their sovereign domain. “If any intrude into the domestic concerns of another nation,” Vattel cautioned, “they do it an injury.”Footnote 44
This vision of states as free and independent vehicles for national self-determination shaped the international law of prescriptive jurisdiction for centuries.Footnote 45 Generations of legal publicists affirmed that a state's prescriptive jurisdiction was limited to its territory and nationals,Footnote 46 subject to only a few narrow exceptions.Footnote 47 The U.S. Supreme Court endorsed this approach to prescriptive jurisdiction in a series of cases, from Justice Joseph Story's ardent manifesto in The Apollon Footnote 48 to Justice Oliver Wendell Holmes's measured opinion in American Banana Co. v. United Fruit Co. Footnote 49 Through these cases, the Court established a general presumption that domestic legislation would not apply extraterritorially if the United States lacked prescriptive jurisdiction under international law.Footnote 50
Not all political communities benefited from Vattel's approach to prescriptive jurisdiction. Under the state-centric worldview of classical international law, only societies organized as states enjoyed sovereign rights, including the authority to prescribe law for their territory and nationals.Footnote 51 Since Western nations refused to recognize most other societies as states, the vast majority of the world's inhabitants remained vulnerable to territorial conquest and subjugation.Footnote 52 As colonized territories and peoples were assimilated into a colonial power's sovereign domain, they became subject to its empire.Footnote 53
Some international agreements also authorized Western powers to give their domestic laws extraterritorial scope.Footnote 54 As early as the sixteenth century, capitulations granted by Ottoman Sultans conferred special privileges on nationals of favored European countries, including lawful residence and safe passage, tax exemptions, and partial immunity from the jurisdiction of domestic courts.Footnote 55 The Ottomans eventually went so far as to allow French nationals to conduct trade and make wills within the empire in accordance with French law while placing them under the exclusive jurisdiction of their own ambassadors and consuls.Footnote 56 These concessions made French expatriate communities, in effect, islands of French sovereignty within the broader Ottoman empire (imperium in imperio). Western diplomats would later use the capitulation system as a model for “unequal treaties,” which provided that their nationals would be subject only to their law when residing, traveling, or transacting business in China and Japan.Footnote 57 By grounding extraterritoriality in foreign states’ consent, Western powers extended their empires into foreign territory without formally violating other states’ sovereignty.
Throughout the colonial era, international lawyers and statesmen understood that extraterritorial lawmaking was an exercise in “empire building and the province of great powers.”Footnote 58 The United States vigorously resisted proposals to expand prescriptive jurisdiction precisely because “extraterritorial laws conjured reminders of . . . ‘taxation without representation’”—the tyranny of colonial rule.Footnote 59 Allowing other states to apply their laws to American citizens on American soil was unacceptable because it would have compromised the United States’ status as a free and independent, self-governing nation.
B. The New Imperialism
Despite these concerns, the classical approach to prescriptive jurisdiction came under attack in the early twentieth century. Some states embraced an “objective territoriality” theory that allowed states to exercise prescriptive jurisdiction over a foreigner who “puts in motion a force to take effect” within the state's territory (e.g., discharging a firearm across an international border).Footnote 60 Over a dozen states also asserted authority to regulate extraterritorial conduct that threatened their national security or other compelling sovereign interests.Footnote 61 These developments cast doubt on whether Vattel's approach to prescriptive jurisdiction continued to reflect customary international law. Efforts to broker a multilateral convention on extraterritorial jurisdiction collapsed when it became apparent that states could not agree on the best path forward.Footnote 62
In 1927, the Permanent Court of International Justice (PCIJ) waded into the debate in The Lotus,Footnote 63 a dispute involving a deadly collision between a French mail steamer and a Turkish collier on the Mediterranean.Footnote 64 When Turkey sought to prosecute the French captain, France objected that Turkey lacked jurisdiction under international law to apply Turkish law to conduct committed on a vessel under French sovereignty.Footnote 65 In proceedings before the PCIJ, France contested only the jurisdiction of Turkey's courts under international law (adjudicatory jurisdiction), not the geographic reach of its criminal code (prescriptive jurisdiction).Footnote 66 Nonetheless, the parties’ arguments referenced broader legal debates over prescriptive jurisdiction: France asserted the presumption against extraterritoriality,Footnote 67 while Turkey invoked the objective territoriality theory.Footnote 68
In addressing these arguments, the Court began by affirming the presumption against extraterritoriality: “the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another state.”Footnote 69 The Court quickly pivoted, however, to reject the idea that the principle applied to extraterritorial lawmaking:
Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion, which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.Footnote 70
Rather than confine all exercises of sovereign authority to a state's imperium, the Court declared that the presumption against extraterritoriality applied only to the “exercise” of state power (i.e., enforcement jurisdiction) and was wholly inapplicable to lawmaking and adjudication. Absent a specific prohibitive rule, “every State remains free to adopt the principles [for prescriptive and adjudicative jurisdiction] which it regards as best and most suitable.”Footnote 71 States could limit the reach of their domestic law to their territory and nationals, or they could make their domestic law apply globally. The choice was left to their unfettered “discretion.”Footnote 72 A more sweeping invitation to legal imperialism can scarcely be imagined.Footnote 73
After World War II, the United States embraced the PCIJ's invitation to stretch its imperial wings. In United States v. Aluminum Co. of America (Alcoa),Footnote 74 a 1945 opinion authored by Judge Learned Hand, the U.S. Court of Appeals for the Second Circuit repudiated American Banana's strict territorial approach as applied to American antitrust law.Footnote 75 The court reasoned that Congress had deliberately authorized antitrust liability for claims based on overseas activities that were “intended to affect” and “did affect” U.S. markets.Footnote 76 The court characterized this approach as consistent with the supposedly “settled” principle of objective territoriality, namely, “that any state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the state reprehends.”Footnote 77
Alcoa opened the door to transnational antitrust litigation in U.S. courts, establishing the United States as a global competition regulator.Footnote 78 For the next several decades, the United States experimented with extraterritoriality in other fields, including securities law, intellectual property, bankruptcy, tax, environmental law, civil rights, and labor law.Footnote 79 The Supreme Court enabled these developments by declining to apply the presumption against extraterritoriality for nearly forty years.Footnote 80 Although the Court eventually revived the presumption in 1991,Footnote 81 by that point extraterritorial regulation had already become an entrenched feature of American law. Thus, extraterritorial economic regulation empowered the United States to extend its vision globally of “an international capitalist economic order based on the rights of private property, open markets and ‘free’ trade.”Footnote 82
The imperialist turn in American antitrust regulation sparked fierce opposition from trading partners in Canada, Europe, and Latin America.Footnote 83 However, when it became apparent that the United States would not back down, the EU eventually followed suit, extending its own competition rules to foreign activities that produce market effects within its borders.Footnote 84 Of particular note is a new generation of EU regulations that govern the online activities of foreign nationals abroad.Footnote 85 By setting relatively aggressive rules to promote competitive digital markets and ensure data protection, the EU has positioned itself as the preeminent global regulator for the digital economy. Whether companies operate out of Accra or Bogotá, Canberra or Damascus, they must now reckon with the global reach of EU cyber law.Footnote 86
The EU and the United States are not alone in practicing extraterritoriality.Footnote 87 Nationality-based extraterritorial jurisdiction is now common around the world.Footnote 88 Many states exercise universal prescriptive jurisdiction over acts of genocide, official torture, and other violations of international jus cogens.Footnote 89 More controversially, the past two decades have seen more states assert prescriptive jurisdiction based on transboundary effects, passive personality, and the protective principle. Rising powers like Brazil, China, and India have joined the EU and the United States in asserting effects-based antitrust jurisdiction,Footnote 90 inspiring other countries around the world to follow suit.Footnote 91 As more states resort to extraterritoriality to project power abroad, assertions of concurrent jurisdiction have become increasingly common, generating international friction.Footnote 92
Amidst these changes, one thing remains constant: in practice, extraterritoriality continues to be overwhelmingly the province of great powers.Footnote 93 When it comes to regulating the means and methods of international commerce, a handful of states manifestly dominate the field—not just because they have enacted extraterritorial laws, but also because they possess the institutional capacity and geopolitical clout to back up their laws with credible threats of enforcement. This dynamic is particularly evident in global competition law and regulation of the digital economy,Footnote 94 and the trend seems likely to continue for emerging technologies like artificial intelligence.Footnote 95 As during the colonial era, powerful states set the ground rules for the global economy by extending their imperium into foreign territory—often with scant regard for the conflicting values, preferences, and interests of foreign peoples.
This “new imperialism”Footnote 96 differs from colonial-era imperialism in several key respects. First, under the new imperialism, states arrogate to themselves the authority to govern foreign peoples without claiming sovereignty over those peoples. The new imperialism thus severs the traditional relationship between sovereignty and prescriptive jurisdiction, undermining Vattel's vision of national sovereignty as a safeguard for national self-determination. Second, unlike colonial-era imperialism, the new imperialism dispenses with the physical trappings of colonial administration and military occupation. States typically establish extraterritorial laws without seeking to enforce the laws directly within foreign territories. Third, the new imperialism does not necessarily entail significant power disparities between the state that makes extraterritorial law and states subject to that law. To be sure, great powers continue to deploy extraterritoriality to impose their will on weaker states. But they also subject one another to extraterritorial laws, generating regulatory conflicts within areas of concurrent jurisdiction. Less powerful developing states have also adopted extraterritorial laws, often modeled on the national laws of great powers.Footnote 97 This is not what contemporary scholars typically have in mind by “empire” and “imperialism.”Footnote 98 Like the old colonial-era imperialism, however, the new imperialism involves states asserting prescriptive jurisdiction (imperium) unilaterally over foreign nationals abroad. In practice, powerful states use unilateral legislation to advance “imperial agenda[s] . . . by displacing negotiated rules with self-serving regulatory measures.”Footnote 99 Accordingly, the new imperialism raises similar normative concerns about the evils of uninvited foreign rule.
C. Contemporary Critiques
The new imperialism has attracted significant criticism based on its unilateral and arguably anti-democratic character. However, critics have struggled to make a convincing case that extraterritorial lawmaking violates international law.
Some commentators assert that extraterritorial lawmaking potentially violates state sovereignty.Footnote 100 This argument trades on the idea that independence from foreign intervention is an attribute of sovereignty.Footnote 101 To qualify as a wrongful intervention under international law, however, a state's actions must address matters within the scope of another state's jurisdiction and use “methods of coercion.”Footnote 102 Wrongful coercion could involve either extortion aimed at coercing another state to act in a particular wayFootnote 103 or the usurpation of another state's sovereign powers.Footnote 104 Neither of these options fits extraterritorial lawmaking particularly well. States typically use extraterritorial law to regulate the conduct of private parties, not to extort other states. Characterizing extraterritoriality as “usurpation” might seem more plausible on first impression, but it assumes what it sets out to prove: that states have exclusive jurisdiction within their territorial domains. If this assumption is incorrect—if international law authorizes extraterritorial prescriptive jurisdiction—then exercising this jurisdiction does not usurp another state's sovereign power. Accordingly, few international lawyers accept that extraterritoriality involves wrongful intervention.
Other scholars argue that extraterritoriality may undermine democracy.Footnote 105 For example, Austen Parrish suggests that extraterritoriality threatens “democratic sovereignty” when it subjects people to laws they have not chosen and cannot change.Footnote 106 To the extent that electoral democracy has become the gold standard for political legitimacy at the national level, extraterritoriality arguably erodes the legitimacy of the international order.
Whether extraterritoriality's undemocratic character violates international law is less obvious. Human rights treaties support democratic governance by enshrining individual rights to political participation and free elections,Footnote 107 but the scope and application of those rights are contested.Footnote 108 “Citizens” are entitled to political participation and free elections only vis-à-vis their states of nationality.Footnote 109 International law does not extend such rights to a state's foreign residents, much less to foreign nationals abroad. The better view, therefore, is that international law does not confer an individual right to freedom from extraterritorial foreign law.
Rather than focus on state rights (democratic sovereignty) or individual rights (democratic participation), a more promising basis for legal critique would emphasize how extraterritoriality undermines a people's collective right to self-determination. The right of peoples to self-determination is enshrined in multilateral conventions, and it is widely recognized as customary international law.Footnote 110 Consequently, if extraterritoriality violates the right to self-determination, this would have far-reaching consequences under international law.
Skeptics might consider the right to self-determination an unpromising launching point for an assault on extraterritoriality's empire. Because the right's application to secessionist movements is often unclear and is perennially disputed, self-determination has been labeled “the most controversial and contested term in international law.”Footnote 111 Some scholars consider the right too “vague and imprecise” to provide meaningful guidance outside the context of decolonization.Footnote 112 Perhaps for this reason, the international legal community has yet to take self-determination seriously as a legal constraint on extraterritorial lawmaking.
This neglect of the right to self-determination is regrettable. As Part II will explain, the right to self-determination developed during the twentieth century in direct opposition to the colonial practice of legal imperialism. When states made self-determination a right under international law, they established a new world order in which all peoples are entitled to choose the laws that apply to them rather than leaving them under the rule of alien laws. As the next Part will argue, however, the right to self-determination does not require extraterritoriality's wholesale abolition, as some legal scholars have asserted.Footnote 113 Instead, self-determination calls for limiting extraterritoriality so that it no longer subjects people to foreign domination.
II. The Right to Self-Determination
Under international law, the right to self-determination safeguards a people's freedom to choose the laws and institutions by which it is governed.Footnote 114 Because the term “people” lacks an official legal definition, international lawyers have long debated which groups qualify.Footnote 115 However, some propositions are relatively uncontroversial.Footnote 116 Most relevant for present purposes, it is well established that a state's nationals collectively constitute a “people” with a territorially bounded right to self-determination vis-à-vis foreign powers.Footnote 117 Under international law, every national polity is entitled to freedom from foreign rule within its own national territory.Footnote 118 When evaluating whether extraterritorial lawmaking violates the right to self-determination, therefore, it is this “polity-based,” territorially defined approach to self-determination that supplies the relevant analytical frame.Footnote 119
Curiously, international lawyers have yet to recognize how the right to self-determination restricts when states may resort to extraterritoriality. To correct this oversight, this Part makes several contributions. First, it situates the right to self-determination in historical context as a response to the “alien domination” of foreign rule.Footnote 120 Second, it clarifies the juridical character and scope of the right to self-determination under present-day international law. Third, it argues that the right to self-determination offers resources for distinguishing territorial jurisdiction from extraterritoriality. Fourth, it explains when, why, and how the right to self-determination limits the exercise of extraterritorial prescriptive jurisdiction. Lastly, it offers criteria for identifying when extraterritoriality is compatible with the right to self-determination, and it defends extraterritorial lawmaking in support of international human rights and other universally applicable norms of general international law.
A. Self-Determination as Decolonization
Scholars often trace the emergence of self-determination as a global political movement to the American Declaration of Independence and the French Revolution.Footnote 121 In both settings, revolutionaries embraced the republican vision of popular sovereignty as an alternative to monarchical sovereignty.Footnote 122 According to the republican tradition, true freedom is possible only when a people is self-determining rather than subject to another's will.Footnote 123 Whereas monarchy consigns people to live under alien domination, collective self-determination makes people free and equal citizens and co-authors of their law.Footnote 124
At the end of World War I, self-determination gained renewed salience when U.S. President Woodrow Wilson joined other world leaders in championing the concept as a solution to the collapse of former empires in Eastern Europe.Footnote 125 For Wilson, self-determination meant that each “nation” (defined in racially, culturally, and historically essentialized terms) was entitled to choose its form of government.Footnote 126 “National aspirations must be respected,” Wilson insisted; “peoples may now be dominated and governed only by their own consent.”Footnote 127 Former empires, therefore, should be restructured into states that align with the geography of nations.Footnote 128 International recognition of a right to self-determination was necessary, Wilson believed, to achieve lasting peace.Footnote 129
Although Wilson's vision shaped the post-war geography of Eastern Europe, it did not register immediately elsewhere.Footnote 130 Despite Wilson's advocacy, the Covenant of the League of Nations did not mention national self-determination. Former colonial possessions of the Austro-Hungarian, German, and Ottoman Empires were rolled into League mandates, placing them under the de facto sovereignty of other states.Footnote 131 Those states, in turn, kept a tight grip on their pre-existing colonies.Footnote 132 As a result, Indigenous communities around the world continued to suffer domination and exploitation while launching independence movements that struggled to attract international recognition and support.Footnote 133
At the close of World War II, self-determination resurfaced in the UN Charter.Footnote 134 Articles 1(2) and 55 characterize self-determination as a “principle” that the United Nations should respect to “strengthen universal peace.”Footnote 135 Rather than affirm a “right” to self-determination, the Charter perpetuates colonial rule by placing former possessions of the defeated Axis powers under UN trusteeshipFootnote 136 and allowing other states to govern “non-self-governing territories.”Footnote 137 In theory, these arrangements were supposed to benefit colonized peoples by helping them develop the institutional capacity for effective self-government.Footnote 138 However, because colonized peoples lacked a clearly established right to independent self-rule, colonial powers did not consider themselves legally obligated to relinquish their territorial claims.Footnote 139
It would take several decades of violent struggle before self-determination became firmly entrenched in international law.Footnote 140 As independence movements intensified during the 1950s, most colonial powers eventually felt compelled to divest their colonial territories.Footnote 141 Meanwhile, in the UN General Assembly, newly independent states pressed for international recognition of a right to self-determination.Footnote 142 This diplomatic assault on colonialism produced a series of landmark UN resolutions, eventually leading to a treaty-based right to self-determination. These instruments rejected the idea that self-determination justified the “disruption of the national unity and the territorial integrity of a country.”Footnote 143 Instead, the international community re-envisioned the right to self-determination as a sweeping entitlement to freedom from domination.
A pivotal development in the decolonization movement was the General Assembly's 1960 Declaration on Colonial Independence, which unequivocally affirms a universal right to self-determination: “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”Footnote 144 Some commentators have mischaracterized the Declaration as concerned exclusively with dismantling colonialism.Footnote 145 But the Declaration actually goes much further. It calls on colonial administrations to “transfer all powers to the people” of trust and non-self-governing territories “without any conditions or reservations, in accordance with their freely expressed will and desire.”Footnote 146 It “[s]olemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations.”Footnote 147 And it affirms that “the subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation.”Footnote 148 The Declaration thus frames self-determination not only as freedom from the “exploitation” of colonialism and territorial dispossessionFootnote 149 but also as liberation from the “subjugation” and “domination” of foreign rule.Footnote 150
This broad framing of the right to self-determination was essential to achieve complete decolonization.Footnote 151 As Lea Ypi has observed, an insidious and pervasive feature of colonialism is the so-called “civilizing mission” whereby colonial powers subject Indigenous communities to foreign rule.Footnote 152 By imposing foreign law on Indigenous peoples without their consent, colonial powers forced those communities into “a political association where the rules [were] established . . . without their say.”Footnote 153 The Declaration on Colonial Independence categorically prohibits this legal imperialism by affirming that all peoples are entitled to determine the laws and institutions that govern them, free from foreign subjugation and domination.Footnote 154
The UN General Assembly's unanimous 1970 Friendly Relations Declaration further cements this robust framing of the right to self-determination:
By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.
Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle, in order:
(a) To promote friendly relations and co-operation among States; and
(b) To bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned; and bearing in mind that subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter.Footnote 155
By proclaiming that peoples are entitled to freely determine their “political status” and linking this entitlement to the struggle for decolonization, the Friendly Relations Declaration confirms that the inhabitants of former colonies are entitled to independence from foreign rule. But the Declaration does not stop there. It affirms that “all peoples” are entitled to claim this right and “every State has the duty to respect this right.”Footnote 156 The right to self-determination thus extends to all peoples everywhere, not just the inhabitants of former colonies.
Should there be any lingering uncertainty about whether the right to self-determination has become a legally binding norm, the international community laid such doubts to rest a few years later in the ICCPR and the ICESCR. Echoing the Friendly Relations Declaration, Common Article 1 of the ICCPR and ICESCR states: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”Footnote 157 Like the Declaration, Common Article 1 defines the right to self-determination as applying to all peoples, not just those seeking independence from colonial rule.Footnote 158 States bear a correlative obligation to respect the self-determination of other peoples, regardless of where those peoples may be found.Footnote 159
International courts and commissions have confirmed the mandatory and universal character of the right to self-determination by defining the right as freedom from uninvited foreign rule. In Western Sahara, for example, the ICJ declared that “the right of self-determination requires a free and genuine expression of the will of the peoples concerned” for any political association with a foreign power.Footnote 160 Similarly, the Australian Aboriginal and Torres Strait Islander Social Justice Commission equated self-determination with freedom from foreign governance in its First Report:
The right to self determination . . . is the right to make decisions. . . . Our entire experience since the assertion of British sovereignty over our country has been the experience of the denial of the right to self-determination. Our lives were utterly subject to the control, the decisions, of others.Footnote 161
These pronouncements underscore that the right to self-determination serves not only to liberate peoples from colonialism but also to ensure that every polity enjoys freedom from foreign governance.Footnote 162
B. Defining the Legal Right
As formulated under international law, the right to external self-determination has several interlocking components that come into sharper relief when viewed through Wesley Hohfeld's classic framework for analyzing legal rights.Footnote 163 The core of the right to external self-determination is a people's exclusive privilege to engage in self-governance by determining the laws and institutions by which it will be governed within the borders of its territorially defined state,Footnote 164 coupled with a claim-right protecting the privilege from interference erga omnes.Footnote 165 Secondarily, the right to self-determination confers an exclusive power to waive or modify the privilege of self-government and an immunity against other actors unilaterally waiving or modifying the privilege. These components of the right pertain to a people collectively, not to its members individually or the state per se. In appropriate contexts, however, states have standing to represent a people in asserting the right to self-determination on its behalf.Footnote 166
Correlative to these components of a people's right to self-determination are certain duties and liabilities. Under international law, states and other global actors have no right to demand that a people refrain from engaging in collective self-governance, and they bear duties to refrain from impeding a people's self-governance within its national territory and to cooperate in progressively realizing self-determination for all peoples.Footnote 167 A people's power to waive its privilege of self-government creates a liability for states and other global actors, which may see their powers correspondingly diminished. States and other global actors also face a legal disability that prevents them from unilaterally waiving or modifying a people's right to self-determination.
Collectively, these components of the right to self-determination safeguard a distinctive conception of liberty: freedom from domination.Footnote 168 Republican political theorists describe this type of freedom as “liberty” or “independence.”Footnote 169 Freedom from domination entails independence from the unilateral imposition of alien rule. A people is self-determining when it enjoys independence from uninvited foreign governance,Footnote 170 enabling it to develop its political institutions and author its laws.Footnote 171 Whereas international law's prohibition of intervention entitles states to freedom from coercive interference (extortion or usurpation), the right to self-determination entitles peoples to independence, defined principally by freedom from foreign domination (the unilateral imposition of foreign rule).
Unilateral extraterritorial lawmaking violates the right to self-determination. In Jörg Fisch's words, “[o]ne who determines not oneself, but rather others, exercises alien domination.”Footnote 172 This is what makes extraterritoriality so threatening to national self-determination. When a state unilaterally extends its laws abroad, it “determines” for others. It subjects other peoples to foreign rule. The right to self-determination prohibits such domination.Footnote 173
Unilateral extraterritoriality is wrongful even when its purpose is benevolent. As republican political theorists have recognized, domination consists of being “under the power of a master” (in potestae domini).Footnote 174 Subjection to a virtuous king or a benevolent enslaver is dominating even if the king or the enslaver chooses to exercise power altruistically for the benefit of his subordinates.Footnote 175 Similarly, imposing national laws unilaterally on a foreign people qualifies as alien domination even if extraterritorial laws advance the people's practical interests. This principle should not be controversial in a post-colonial era. If there is one guiding principle that has galvanized the global struggle for decolonization, it is that the dominating paternalism of the “civilizing mission” is no substitute for the liberty of national self-determination.
The right to self-determination prohibits unilateral extraterritorial lawmaking even if the lawmaking state never actually enforces its laws outside its borders. Simply by enacting extraterritorial law, the lawmaking state impresses upon a foreign people their subjugation and vulnerability to enforcement if they venture abroad, as well as the need to keep within the good graces of the lawmaking state.Footnote 176 People subject to extraterritorial law may feel constrained to comply with the law even if they do not support its demands and purposes. This coerced servility is what it means for a people to live under alien domination.
C. Territory and Extraterritoriality
In recent years, it has become fashionable to downplay or deconstruct the distinction between territorial and extraterritorial jurisdiction.Footnote 177 For example, Péter Szigeti argues that “the quest to distinguish territoriality from extraterritoriality” is “futile” because territorial jurisdiction relies on two false assumptions: first, “that everything has a physical location”; and second, that a thing's “location is an observable, verifiable fact.”Footnote 178 Szigeti observes that it is not always possible to assign a single territory to “immaterial and intangible phenomena, such as actions, events, plans and conspiracies, intangible assets, or digitised information.”Footnote 179 Foreign activities that produce transboundary harm also pose a puzzle for territorial jurisdiction. Some authorities characterize effects-based jurisdiction as a subset of “territorial” jurisdiction, while others consider it “extraterritorial.”Footnote 180 Because territorial jurisdiction is a perennially contested legal concept, international lawyers disagree among themselves about which territorial contacts suffice to establish national jurisdiction.
The right to self-determination casts new light on the distinction between territorial and extraterritorial jurisdiction by calling attention to how territory facilitates collective governance. International law relies on territorially organized states to establish domains wherein peoples can exercise collective self-determination. This enables people to experience what Anna Stilz calls “maker” freedom: “the freedom of understanding oneself as a ‘maker’ of the coercive institutions by which one is governed.”Footnote 181 Conversely, when a state reaches beyond its territory to exercise prescriptive jurisdiction over foreign peoples outside its territory, those peoples may experience foreign law as unfreedom because it does not reflect their collective co-authorship. Unless they are nationals of the lawmaking state or have consented to abide by foreign law, people outside a state's borders will relate to foreign law as alien domination. Accordingly, the more expansively national authorities construe their state's territorial jurisdiction, the greater the risk that their national laws will undermine other peoples’ self-determination.
These considerations counsel in favor of construing “territorial” jurisdiction narrowly to avoid undermining other peoples’ right to self-determination. A state must not exploit incidental or insubstantial territorial contacts as a pretext for regulating unilaterally the extraterritorial activities of foreign nationals. Instead, territorial jurisdiction applies only when a state seeks to regulate persons, conduct, or property within its territory.Footnote 182
Under this approach, a law is extraterritorial if its focus relates to persons, conduct, or property outside the state's territory. For instance, Mexico engages in extraterritorial lawmaking if it threatens criminal penalties against newspaper editors in the United States who publish libel about Mexican nationals.Footnote 183 The United States exercises extraterritorial jurisdiction when it threatens civil liability against foreign investors outside the United States who purchase property confiscated from Americans in Cuba.Footnote 184 American lawmakers use territorial jurisdiction to regulate the conduct of data service providers inside the United States, but they exercise extraterritorial jurisdiction when they seek to regulate how foreign companies handle the personal data of U.S. nationals on servers overseas.Footnote 185 Thus, national laws are “extraterritorial” to the extent that they purport to govern persons, conduct, or property outside the state's borders—even if those subject to the laws purposefully target the forum.
Reasonable minds will sometimes disagree about whether a particular law is territorial or extraterritorial.Footnote 186 Nonetheless, maintaining the distinction between territorial and extraterritorial jurisdiction is necessary to make room for peoples to exercise their right to self-determination free from foreign domination.
D. When Extraterritoriality Constitutes Imperialism
The right to self-determination offers resources for combatting extraterritoriality's imperialistic excesses. To satisfy international law, it is not enough for a state to have prescriptive jurisdiction through a “genuine connection between the subject of the regulation and the state seeking to regulate.”Footnote 187 Instead, the state must show that a people subject to extraterritorial law has freely and collectively embraced that law for themselves. If extraterritorial law does not reflect the collective self-government of the people concerned, it violates the right to self-determination.
Some conventional bases for extraterritorial prescriptive jurisdiction are difficult to square with the right to self-determination. When a state exercises prescriptive jurisdiction based solely on transboundary effects, passive personality, or the protective principle, it wields power over foreign nationals who are not part of its “people” and may not have embraced its law in any meaningful sense. Accordingly, international lawyers should closely scrutinize extraterritorial laws that rely on these three bases to ensure that the laws do not introduce alien domination.
Consider, for example, the Russian Criminal Code, which applies to foreign nationals abroad whenever “crimes run counter to the interests of the Russian Federation.”Footnote 188 The Criminal Code is replete with controversial provisions that raise civil liberties concerns.Footnote 189 For example, it prohibits “public actions aimed at discrediting” Russia's armed forces.Footnote 190 Critics worry that Russia could use this provision to prosecute foreign journalists and war crimes investigators who publish evidence of military atrocities in Ukraine.Footnote 191 Recent developments suggest that this fear may be well founded. After the ICC issued an arrest warrant against Russian President Vladimir Putin in March 2022 for alleged acts of genocide in Ukraine,Footnote 192 Russia's Duma amended the Code to prohibit assisting foreign and international bodies to which Russia is not a party.Footnote 193 Prosecutors then announced indictments against ICC Prosecutor Karim Asad Ahmad Khan (a British national) and ICC Judge Rosario Salvatore Aitala (an Italian national) based on their service at the ICC.Footnote 194 These indictments delivered the message that Russia will not hesitate to assert its criminal law globally to deter and punish challenges to its authority.
If pressed, Russian officials would likely argue that the Criminal Code's extraterritorial scope reflects a permissible exercise of prescriptive jurisdiction based on transboundary effects and the protective principle. This argument rests on dubious premises, given that war crimes investigation and prosecution are not the kinds of activities that the international community recognizes as supporting prescriptive jurisdiction under either the protective principle or the effects test.Footnote 195 But even if this jurisdictional argument were sound, it would not follow that Russia's extraterritorial lawmaking is permissible under international law. The Code criminalizes conduct that is perfectly lawful under general international law and the domestic law of most other countries.Footnote 196 Leveraging extraterritoriality to intimidate and punish foreign critics in this manner is a textbook example of alien domination. The right to self-determination categorically prohibits such measures.
E. Extraterritoriality Without Imperialism
Extraterritoriality does not always violate the right to self-determination. As we have seen, the right to self-determination includes an exclusive privilege to decide the laws and institutions by which a people will be governed domestically, along with a claim-right against other states interfering with this privilege. As the term “self-determination” implies, however, a people cannot claim a comparable exclusive privilege to determine the laws and institutions that govern others—not even foreigners within the state's borders. Although international law authorizes a state to establish laws that apply to all present within their territory (a Hohfeldian power), neither the state nor its people may invoke self-determination as a privilege or claim-right against foreign states applying foreign law to foreign nationals.
Consider the common scenario where a state extends its national law to its expatriate nationals. Japan's Penal Code, for example, specifies over a dozen criminal offenses that apply to Japanese nationals abroad, including homicide, robbery, and kidnapping.Footnote 197 When prosecutors bring charges against expatriates under Japanese criminal law, the defendants cannot reasonably claim that this violates the right to self-determination. Likewise, the right to self-determination does not bar the United States from punishing U.S. nationals under the Foreign Corrupt Practices Act (FCPA) for bribing foreign officials outside the United States.Footnote 198 As applied to U.S. nationals, the FCPA is not “alien rule.” Far from inflicting alien domination, extending Japanese law to Japanese nationals and American law to American nationals reflects self-determination in action.
Extraterritoriality also does not violate the right to self-determination when foreign law incorporates international norms that another people has embraced by treaty or as customary international law.Footnote 199 For example:
• A Liberian national who has perpetrated torture in Liberia may not invoke self-determination as a defense to prosecution under the U.S. Torture Act.Footnote 200
• Russian military leaders may not evade accountability under Ukrainian law for war crimes committed in violation of the Geneva Conventions and the customary international law of armed conflict.Footnote 201
• Thai nationals who engage in child sex trafficking in Thailand may be prosecuted under foreign law, consistent with the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography.Footnote 202
• Members of Iran's Islamic Revolutionary Guard Corps may be held responsible under foreign law for shooting down a civilian airliner in violation of the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation.Footnote 203
• The United States may impose penalties against Russian state-owned banks that provide financial services to terrorists in eastern Ukraine.Footnote 204
In each of these scenarios, the right to self-determination does not shield defendants from legal responsibility under foreign law because international law defines the relevant offenses and authorizes proportional sanctions. When a people freely embraces international norms as binding legal obligations, foreign laws that incorporate those norms do not necessarily reflect alien domination.Footnote 205 Accordingly, states do not engage in impermissible “legal imperialism” when they apply their national law to their own nationals abroadFootnote 206 or use national law to extend generally applicable norms of international law that foreign peoples have freely embraced through treaty or customary international law.
The right to self-determination thus offers distinctive criteria for evaluating when extraterritoriality is permissible under international law. Extraterritorial laws based on nationality and universal jurisdiction generally fare well under these criteria. In contrast, extraterritorial laws that rely on transboundary effects, passive personality, or the protective principle tend to establish legal requirements that other peoples have not accepted. Hence, international lawyers should take care to ensure that such laws do not subject other peoples to legal imperialism in violation of their right to self-determination.
III. Unlawful Extraterritoriality
Extraterritoriality is experiencing a global resurgence in the twenty-first century. While the United States has taken some steps to rein in extraterritoriality through restrictive statutory interpretation,Footnote 207 other states are moving in the opposite direction. China, the EU, and Russia have become increasingly assertive in using extraterritoriality to project power beyond their borders.Footnote 208 Rising powers like Brazil and India are starting to follow their lead.Footnote 209 Dismantling this new imperialism will be essential in the years to come if the international community hopes to establish “conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.”Footnote 210
This Part explores how international lawyers could harness the right to self-determination to stem the rising tide of legal imperialism. More specifically, the following Sections examine four settings where powerful states abuse extraterritorial prescriptive jurisdiction to impose their law on foreign peoples in violation of the right to self-determination.
A. Political Expression
Consider first China's recent efforts to suppress extraterritorial political expression. In response to mass protests that paralyzed Hong Kong in June 2019,Footnote 211 the National People's Congress of China in 2020 adopted an unprecedented national security law for Hong Kong (NSL).Footnote 212 The NSL criminalizes various activities that could undermine Hong Kong's “unification” with China,Footnote 213 including violent insurrection and terrorism.Footnote 214 Among its most controversial provisions, the NSL outlaws “provoking by unlawful means hatred among Hong Kong residents toward the Central People's Government or the Government of the Region” in a manner “likely to cause serious consequences.”Footnote 215 China has used this prohibition to curtail political expression, peaceful assembly, and academic freedom not only in Hong KongFootnote 216 but also outside China.Footnote 217
Among those charged shortly after the NSL's enactment was Samuel Chu, a U.S. citizen and the managing director of a Washington D.C.-based advocacy group that seeks to promote Hong Kong's freedom and autonomy. In a social media post responding to the criminal charges, Chu tweeted out a terse warning: “I might be the 1st non-Chinese citizen to be targeted, but I will not be the last. If I am targeted, any American/any citizen of any nation who speaks out for HK can—and will be—too.”Footnote 218
Chu's prediction proved to be prophetic. In July 2023, Hong Kong officials requested an injunction to prevent a popular protest anthem, “Glory to Hong Kong,” from being broadcast, performed, published, sold, distributed, or disseminated in any way, including through foreign internet platforms.Footnote 219 The writ of summons asserted that the recording violated the NSL because it could incite Hong Kong's residents to pursue secession.Footnote 220 One commentator explained that the government's request for injunctive relief was “less about silencing the person on the street than forcing tech giants”—including foreign companies like Apple, Meta, Spotify, and X—“to remove the offending song from their platforms.”Footnote 221 A few months later, China also threatened to enforce the NSL against protesters who burned Chinese flags and chanted protest slogans against the Chinese Communist Party outside the Chinese embassy in London.Footnote 222
Chinese officials might genuinely believe that international law authorizes the NSL's extraterritoriality. The official Party line asserts that foreign agitation for Hong Kong's autonomy stirs up domestic unrest, leading to demonstrations that encourage vandalism, interfere with public commerce, and undermine the state's authority. If threats of transboundary harm are enough to establish prescriptive jurisdiction, then the NSL's extraterritorial reach might seem plausibly related to effects-based or protective principle jurisdiction. Indeed, for all the criticism that has been heaped upon the NSL, critics have yet to challenge its extraterritorial scope as a violation of international law.Footnote 223
The right to self-determination clarifies how the NSL violates international law. By seeking to censor political expression worldwide in contravention of local civil liberties, the NSL constitutes wrongful legal imperialism. China cannot plausibly argue that the NSL incorporates international norms that other peoples have endorsed via treaty or customary international law. To the contrary, China's restrictive approach to political expression conflicts sharply with the robust legal protections afforded in many other countries, including the United States’ constitutionally protected right to freedom of speech.Footnote 224 The law's primary impact is to pressure foreign peoples to engage in self-censorship rather than exercise their nationally and internationally guaranteed rights to free expression, association, and peaceful assembly.Footnote 225 Thus, the NSL represents the kind of alien domination that violates the right to self-determination.
B. Counterterrorism
A second example of unlawful extraterritoriality comes from U.S. counterterrorism law. Since the 1996 Antiterrorism and Effective Death Penalty Act,Footnote 226 the United States has criminalized acts of terrorism committed by foreign nationals abroad.Footnote 227 In the wake of the 9/11 terrorist attacks, the United States resolved to enforce its domestic counterterrorism law with increasing vigor “[t]o deter and punish terrorist acts . . . around the world.”Footnote 228 As a result, the United States has applied its law broadly to acts of terrorism committed by foreign nationals worldwide.Footnote 229
The global reach of American counterterrorism law does not undermine self-determination when it targets conduct prohibited under international law. For example, U.S. law criminalizes using explosives against mass transit systemsFootnote 230—acts that are banned by the International Convention for the Suppression of Terrorist Bombings (Terrorist Bombings Convention),Footnote 231 a treaty with near-universal membership.Footnote 232 The Terrorist Bombings Convention authorizes states parties to exercise prescriptive jurisdiction over a broad range of terrorist attacks that occur abroad.Footnote 233 Hence, states parties to the Terrorist Bombings Convention cannot reasonably claim that the right to self-determination has been violated when a state enacts extraterritorial legislation prohibiting such terrorist attacks.
More problematic are prohibitions against “providing material support to terrorists”Footnote 234 and “providing material support or resources to designated foreign terrorist organizations.”Footnote 235 Congress has defined “material support or resources” extraordinarily expansively to include “any property,” “service,” “lodging,” “communication,” or “transportation.”Footnote 236 The law prohibits such assistance even if the actor does not know or intend to use the aid for terrorist attacks.
These features of the United States’ material support law have been controversial, in part, because they criminalize conduct permitted under international law and the domestic law of most countries.Footnote 237 Material support could be as innocuous as informing terrorists about the requirements of international humanitarian law.Footnote 238 It could be as mundane as serving a meal or giving a ride to a family member affiliated with a terrorist organization.Footnote 239 Material support also encompasses some activities other countries resolutely support, such as delivering humanitarian relief after a natural disaster to regions where terrorists reside.Footnote 240
The United States has prosecuted dozens of foreign nationals for rendering material support to terrorism abroad.Footnote 241 Most, if not all, of these prosecutions have involved egregious misconduct that is illegal under international law and the domestic law of the jurisdictions where the conduct occurred. For example, in September 2014, federal prosecutors successfully prosecuted Abu Hamza, a naturalized citizen of the United Kingdom, for providing material support to terrorists in connection with a 1998 hostage-taking in Yemen that led to the death of four hostages.Footnote 242 Hamza's participation in the hostage-taking conspiracy qualified as material support under U.S. law, and it violated the International Convention Against the Taking of Hostages (Hostages Convention),Footnote 243 a multilateral treaty to which the United Kingdom, the United States, and Yemen are all parties.Footnote 244 Notably, the Hostages Convention requires states parties to criminalize participating as an accomplice in hostage-taking.Footnote 245 Therefore, Hamza could not plausibly argue that the United States’ prohibition of material support violated the right to self-determination as applied to his conduct.
Although the United States has reserved extraterritorial material support prosecutions for weighty cases like the Hamza prosecution, the law's broad scope still undermines the right to self-determination. By criminalizing otherwise lawful activities abroad, the United States has asserted the prerogative to make law for other peoples without their consent. Criminalizing material support may deter foreigners outside the United States from engaging in otherwise lawful and praiseworthy activities, such as providing public education, medical care, and humanitarian aid to impoverished communities abroad. These practices reflect, in Antony Anghie's words, “the re-imposition of imperial order” through “a set of policies and principles that reproduces the structure of [colonialism's] civilizing mission.”Footnote 246 Before extending its material support law extraterritorially, the right to self-determination obligates the United States to persuade other states to accept its norms through international agreement or by adopting similar national laws.
C. Antitrust
Unlawful extraterritoriality also features prominently in global antitrust law. For nearly eighty years, the United States has used the Sherman ActFootnote 247 to regulate foreign commercial activities based on their effect on domestic competition in the United States.Footnote 248 The European Court of Justice also has endorsed effects-based jurisdiction, permitting European competition law to regulate foreign cartels that adversely affect the European Economic Community (EEC) or implement their anti-competitive agreements in the EEC.Footnote 249 By embracing extraterritoriality in these ways, the European Commission and the United States have assumed dominant roles in global antitrust regulation.Footnote 250
Under pressure from the European Commission, the United States, and multinational donor organizations like the International Monetary Fund and the World Bank, over 130 countries have adopted antitrust laws.Footnote 251 Many of these laws purport to govern the extraterritorial conduct of foreign firms.Footnote 252 China, in particular, is beginning to flex its muscles as a self-styled global competition regulator by using its national competition law to regulate corporate mergers in foreign markets.Footnote 253
Proliferating national competition rules might eventually lead to global convergence around shared legal standards for corporate merger review, anti-competitive tying and bundling, compulsory licensing for patented technologies, and other issues. At present, however, consensus remains elusive.Footnote 254 With no international agreement in sight, states have elected instead to pursue informal cooperation through associations like the Organization for Economic Cooperation and Development (OECD) and the International Competition Network (ICN).Footnote 255 Meanwhile, because less powerful states rarely enforce their domestic competition rules extraterritorially, they have effectively ceded the field to great powers like China, the EU, and the United States.Footnote 256
These features of international competition law raise serious self-determination concerns. Like China's NSL and the United States’ material support law, national antitrust laws prohibit some commercial activities that are permissible under local law.Footnote 257 Developing countries often complain that the EU and the United States characterize their competition laws as beneficent gifts to the world, but their laws operate in practice as trojan horses that “enable . . . dominant foreign companies . . . to [gain] access to their markets . . . and . . . hinder cooperation among their own firms.”Footnote 258 The threat to national self-determination is especially acute when the EU and the United States impose their competition rules on countries with centrally planned economies that do not embrace the liberal ideal of fair and open market competition.Footnote 259 In such settings, extraterritoriality violates a people's privilege to “freely determine [its] political status and freely pursue [its] economic . . . development.”Footnote 260
Extraterritoriality is also problematic when states have different competition rules. The U.S. Supreme Court has recognized that “if America's antitrust policies could not win their own way in the international marketplace for such ideas,” it would be “an act of legal imperialism” to “impose them [extraterritorially] through legislative fiat.”Footnote 261 Guided by this insight, the Court in F. Hoffmann-LaRoche Ltd. v. Empagran S.A. declined to extend the Sherman Act to “foreign-cubed” claimsFootnote 262—civil actions brought by foreign plaintiffs against foreign defendants based on acts committed in foreign countries.Footnote 263 The Court emphasized that extending the Sherman Act extraterritorially would be unreasonable, in part, because the Act has a unique feature: private parties may enforce the law through civil actions that yield treble damages.Footnote 264 In amicus briefs, foreign governments had complained that extending “American private treble-damages remedies to anticompetitive conduct taking place abroad . . . would unjustifiably permit their citizens to bypass their own less generous remedial schemes, thereby upsetting a balance of competing considerations that their own domestic antitrust laws embody.”Footnote 265 Acknowledging the legitimacy of these objections, the Court concluded that applying the Sherman Act would violate “principles of prescriptive comity.”Footnote 266 However, the Court could have rested its holding just as easily on the right to self-determination, as hinted in its reference to “legal imperialism.”Footnote 267 Extending the United States’ distinctive treble-damage remedy to conduct committed by foreign nationals abroad undermines national self-determination by subjecting foreign peoples to laws they have not collectively endorsed.
D. Data Governance
Data governance is another area where extraterritoriality threatens national self-determination. In the global digital economy, personal data harvested from search engines, electronic transactions, and social media has become big business. Some of the world's largest and fastest-growing firms focus on monetizing and commercializing personal data.Footnote 268 Pervasive consumer surveillance in the digital marketplace risks exposing internet users to embarrassment, exploitation, and even extortion. To make matters worse, authoritarian governments use data mining to conduct mass surveillance operations that invade personal privacy and chill civil liberties.Footnote 269
In response to these concerns, states and regional organizations have taken steps to regulate the collection, transmission, and use of personal data domestically and internationally.Footnote 270 Leading the way is the EU's General Data Protection Regulation (GDPR),Footnote 271 which regulates “the processing of personal data of data subjects who are in the Union” even if the data controller or processor is outside the EU as long as processing activities relate to either: “(a) the offering of goods or services . . . in the Union; or (b) the monitoring of . . . behaviour . . . within the Union.”Footnote 272 The GDPR thus adopts a “targeting” approach to data protection, extending EU privacy standards to foreign firms located abroad that direct their activities at data subjects in the EU.Footnote 273 The GDPR essentially compels foreign companies to choose: adopt EU privacy rules (on pain of substantial fines) or abandon the lucrative European market.Footnote 274 Significantly, foreign companies are subject to the GDPR's requirements even if they do not maintain a physical presence or conduct business in the EU, and even if the data they gather about EU residents is already in the public domain outside the EU.Footnote 275 Following in the EU's footsteps, Brazil, China, India, and various other countries have adopted similar laws regulating foreign data processing operations carried out in connection with efforts to profile individuals or provide products or services within their territories.Footnote 276
Extraterritorial laws like the GDPR might be unobjectionable if their requirements were universally accepted, but they are not. The EU's targeting approach has generated friction with the United States due to basic differences in regulatory philosophy.Footnote 277 As Christopher Kuner has observed, the United States “would like the EU to make it easier to transfer personal data internationally, both to further economic growth and for reasons of U.S. national security. This has produced resentment in the EU about the extent of U.S. lobbying on data protection, and in the U.S. about pressure from the EU to change its law.”Footnote 278 In the meantime, the United States has yet to enact comprehensive federal legislation on the collection and use of personal data,Footnote 279 effectively ceding the field to an inconsistent patchwork of laws among its fifty states.Footnote 280 These local laws deviate from the GDPR in significant respects. Most apply only to companies that exceed robust annual revenue thresholds and derive a high percentage of their revenue from data transmission.Footnote 281 Unlike the GDPR, all but one U.S. jurisdiction exempt non-profits from data protection rules.Footnote 282 Like them or not, these and other distinctive features of American data protection law reflect calculated political choices. The right to self-determination protects a people's freedom to make such choices free from the dominating imposition of foreign law.
Some might argue that the GDPR does not qualify as “extraterritorial” lawmaking because it can be justified, at least in part, as an exercise of the EU's territorial jurisdiction.Footnote 283 However, the GDPR plainly governs activities of foreign individuals and entities located outside the EU.Footnote 284 Hence, the GDPR qualifies as “extraterritorial” law, as defined in this Article,Footnote 285 notwithstanding the fact that the law requires an effects-based territorial nexus based on the regulated party's “offering of goods or services” or “monitoring of [EU residents’] behaviour . . . within the Union.”Footnote 286 This extraterritorial scope is significant, for purposes of the right to self-determination, because it reflects alien control over foreign peoples who have not freely embraced EU privacy norms.
Europeans tend to view personal data as being intrinsically entangled with the personhood of data subjects, such that the personal data of EU residents remains territorially linked to the EU even when it is located on foreign servers.Footnote 287 This view resonates with the work of legal scholars like Szigeti who question whether “territory” provides a coherent metric for evaluating exercises of national jurisdiction, particularly in a digitally networked world.Footnote 288 For these scholars, data processing laws are never “territorial” or “extraterritorial” because data resists such classifications.Footnote 289
Viewed from the perspective of the right to self-determination, however, it makes little difference whether data is deemed to reside in the originating state, the state where it is processed, or both. The decisive issue is not where data “exists” in a metaphysical sense. Instead, the right to self-determination invites us to consider whether data protection laws subject another people to alien rule in violation of its privilege to author its own laws and institutions. When a data protection law applies to foreign peoples abroad who have not accepted its standards, the law violates the right to self-determination.Footnote 290 Thus, the right to self-determination prohibits the EU from imposing its preferred rules unilaterally on foreign companies that collect and process data outside the EU.
If the EU aspires to protect its nationals’ personal data in the United States without violating the right to self-determination, it should pursue other options. It could engage the United States in negotiations aimed at strengthening U.S. data protection rules. Alternatively, it could prohibit the transfer of sensitive personal data beyond its territorial jurisdiction, thereby forcing foreign firms to establish operations within the EU in order to access the personal data of EU residents.
The latter approach is gaining popularity around the world. Over sixty countries now have “data localization laws,” which require that personal data collected from a state's nationals must be stored within the state's territory.Footnote 291 Some of these laws prohibit custodians from transferring data outside national borders.Footnote 292 Developing countries, in particular, have embraced data localization to combat “digital colonialism”—foreign firms’ predatory extraction of user data.Footnote 293 Although these laws have been controversial for other reasons,Footnote 294 they are compatible with the right to self-determination to the extent that they regulate activities conducted by individuals and entities within a state's own territory for the benefit of the state's people.
Some states have adopted data localization laws requiring foreign websites to return copies of user data from foreign repositories to domestic servers.Footnote 295 The trouble with such laws, from the perspective of national self-determination, is that they often require foreign entities to take steps that are not required, and might even be prohibited, under local law. For example, authoritarian states have used data localization laws to pierce foreign data privacy safeguards, enabling them to ferret out political dissidents.Footnote 296 In one widely publicized incident, Russia brandished its data localization lawFootnote 297 to threaten the Jewish Agency for Israel, a non-profit that helps Jews from around the world immigrate to Israel.Footnote 298 Concerned that the Agency was recruiting away some of its best and brightest scientists and innovators, Russia accused the Agency of maintaining applicant files on a foreign server and threatened to shutter its Moscow office.Footnote 299 This action came shortly after Russia fined several foreign social media companies, such as Snapchat, Spotify, Tinder, and WhatsApp, for refusing to transfer users’ sensitive data to Russian servers where the data would be accessible to Russia's Federal Security Service (FSB) on demand.Footnote 300 In each of these settings, Russia sought to conscript foreign companies as unwilling accomplices in suppressing civil liberties.
Whenever states dictate unilaterally how foreign companies must conduct their business on foreign soil, they violate the right to self-determination. This holds true for Russia's data localization law, which undermines EU and U.S. privacy norms. It also applies to the EU's well-intentioned efforts to bolster data privacy through extraterritorial regulation. The EU may prohibit data custodians in the EU from transferring user data abroad. However, the EU may not unilaterally dictate how foreign companies handle data outside the EU. No state or regional organization is entitled to legislate for the entire world. When national or regional laws extend into foreign territory in this manner, they constitute a form of legal imperialism that violates the international right to self-determination.Footnote 301
IV. Unjustified Extraterritoriality
Given the evident tensions between unilateral extraterritorial lawmaking and self-determination, why has this practice survived into the twenty-first century? Why does it appear to be on the rise today?
A political realist might find the answer to these questions obvious: extraterritoriality persists because it serves the interests of powerful states.Footnote 302 Great powers like China, the EU, Russia, and the United States use extraterritoriality to augment their influence, strengthen their national security, and facilitate their accumulation of resources, knowing that other states are ill-equipped to stop them. When it comes to extraterritorial regulation, “the strong do what they can and the weak suffer what they must.”Footnote 303
Most international lawyers eschew the notion that might makes right. They are more likely to ask whether extraterritorial regulation can be justified under international law (lex lata) and, if not, whether there are persuasive arguments for revising the law to accommodate the practice (lex ferenda).
Thus far, this Article has argued that international law permits extraterritorial lawmaking only when national laws reflect the self-determination of the people they seek to govern. But should the right to self-determination (lex lata) yield to the emerging state practice of unilateral extraterritorial lawmaking (lex ferenda)? Some legal scholars argue that there are compelling policy arguments for giving extraterritoriality an expansive scope. Extraterritoriality is said to promote international law enforcement, encourage international cooperation, advance universal values, and generate global public goods that benefit all humanity.Footnote 304
In this Part, I offer some reasons to doubt these policy rationales as applied to many forms of unilateral extraterritorial lawmaking. In addition, I argue that states have other tools at their disposal for securing their national interests and collective interests of the international community without violating the right to self-determination. Although none of the alternatives to extraterritorial lawmaking are perfect, together they supply a robust menu of options for preventing and suppressing transboundary harm.
A. Extraterritoriality's False Promises
Legal scholars often depict extraterritoriality as a necessary mechanism for enforcing international law, correcting for institutional failures at the supranational level.Footnote 305 Without extraterritoriality, states would struggle to hold pirates accountable for their international crimes.Footnote 306 Terrorists and war criminals would find it easier to evade civil and criminal liability.Footnote 307 In an international system without a global legislature or police force, decentralized national lawmaking and enforcement may be essential to bolster the rule of international law.
These considerations are compelling as far as they go. Employing extraterritoriality to prevent and suppress violations of international law aligns with the right to self-determination, as the Article has shown.Footnote 308 However, international law enforcement does not justify the full range of extraterritorial laws that states have enacted. Many national and regional laws reach extraterritorially without a foundation in international law and lack popular support in the countries they purport to govern. For example, controversial features of China's NSL, the EU's GDPR, Russia's Federal Law on Personal Data, and the United States’ material support law impose idiosyncratic national policies on foreign peoples without a solid grounding in general international law. At least where such laws are concerned, it is hard to make the case that extraterritorial lawmaking can be justified as facilitating international law enforcement.
Extraterritoriality's supporters also underscore its potential to promote common interests of humanity.Footnote 309 In fields where general international law is thin, such as data privacy, artificial intelligence, and securities regulation, national and regional lawmaking can fill regulatory vacuums, protecting people worldwide from the dominating influence of multinational corporations.Footnote 310 For example, some scholars credit EU and U.S. antitrust law with promoting fair competition all over the world.Footnote 311 European scholars also celebrate EU regulation for promoting humanity's shared interest in data privacy.Footnote 312 Given the formidable political obstacles to international treaty-making and supranational governance, scholars have argued that national and regional regulators are best positioned to address global regulatory challenges that transcend national borders.Footnote 313
This vision of extraterritoriality as “benevolent unilateralism” is alluring but rests on contestable assumptions.Footnote 314 First, it takes for granted that there is international consensus about the optimal approach to balancing the pursuit of specific public goods, such as competitive markets and data privacy, against other critical considerations like economic development and national security. There are good reasons to question this assumption. Consider that the international community has failed in the past to conclude an international convention on global competition law precisely because states could not agree about how to reconcile their divergent interests.Footnote 315 The fact that the EU and the United States have resorted to extraterritoriality only after their preferred policies failed to attract global support belies the notion that their laws reflect universal values.Footnote 316 To quote the U.S. Supreme Court once again, when national laws fail to “win their own way in the international marketplace for such ideas,” it is “an act of legal imperialism” to impose such laws on other peoples “through legislative fiat.”Footnote 317
Granted, unilateral extraterritorial laws do not always generate intractable conflict. States often manage to resolve their differences through informal cooperation at the enforcement stage.Footnote 318 On occasion, states have even exploited foreign extraterritorial laws for their own national interests. For instance, some states have brought antitrust claims as plaintiffs in U.S. courts and have extradited terrorism suspects to face material support charges under U.S. law.Footnote 319 However, these cases of international cooperation should not overshadow the many instances in which states have resisted foreign extraterritorial laws. Nor should they convey the false impression that select states or regional organizations speak for the entire international community when they impose their laws on the rest of the world.
Second, even if extraterritorial laws generate global public goods, it is doubtful that they distribute those goods equitably among the world's peoples.Footnote 320 Recall developing nations’ complaint that EU-U.S. antitrust imperialism advances the interests of multinational corporations at the expense of local economic development.Footnote 321 Critics of EU data governance express similar concerns. Although the EU claims that its strict data protection laws benefit people worldwide, critics object that the EU has stunted Africa's economic development by preventing Africans from participating fully in the global digital economy.Footnote 322 These concerns underscore an unsettling truth about extraterritorial lawmaking: whenever a powerful state or regional organization purports to legislate for all humanity, there is a high likelihood that its laws will exacerbate structural inequities, perpetuating domination of weaker states. Arguments for benevolent unilateralism thus call to mind colonialism's infamous “civilizing mission” and should be approached with a healthy dose of skepticism.
Third, even if unilateral extraterritoriality has advanced the global public good in some respects in the past, it is not self-evident that this trend will continue. Supporters of unilateral extraterritoriality tend to overlook the rise of authoritarian extraterritoriality,Footnote 323 but this looming challenge can no longer be ignored. China and Russia are rapidly ratcheting up their use of extraterritoriality to establish an authoritarian counterweight to EU-U.S. regulatory dominance.Footnote 324 Like the EU and the United States, China and Russia purport to use extraterritorial lawmaking to advance the global public interest, not just their narrow national interests.Footnote 325 Thus far, however, they have deployed extraterritoriality primarily to challenge Western regulatory hegemony, intimidate foreign critics, and quash domestic political dissent.
As great powers vie for supremacy over the global regulatory domain, the primary casualties are likely to be the people of weaker states caught in the middle. But powerful nations will also pay a price. Now that the EU and the United States are no longer the only self-appointed global lawmakers, their people can expect to encounter more extraterritorial regulation from foreign powers, eroding their freedom from foreign domination. A multipolar world in which states feel free to legislate extraterritorially is a world in which people everywhere are less free.
B. Extraterritoriality's Alternatives
National authorities might worry that dismantling unilateral extraterritoriality could potentially expose their people to harm, whether from criminal elements or private enterprises.Footnote 326 It would be particularly ironic if, by respecting the anti-imperialist right to self-determination, states unleashed multinational corporations to exploit and dominate peoples around the world.Footnote 327 Fortunately, extraterritoriality is not the only means available to states for dealing with transboundary threats, such as transnational terrorism, global cartels, and data colonialism. States have a variety of other potent tools at their disposal to prevent and suppress transboundary harm without violating the right to self-determination.
First, states could embrace international cooperation. In the past, efforts to establish multilateral legal standards have been hindered by the misconception that international law condones unilateral extraterritorial lawmaking. Guided by this mistaken belief, great powers like the EU and the United States have had little incentive to compromise in developing international regulatory frameworks.Footnote 328 In contrast, acknowledging that unilateral extraterritoriality violates the right to self-determination would change the legal and political landscape, enhancing the prospects for successful negotiations by forcing states to the bargaining table. Policy differences that currently seem intractable might become more amenable to negotiation and compromise. As states relinquish the notion that they may unilaterally impose their preferred legal standards on foreign peoples, national authorities could lay the groundwork for more fruitful international cooperation.Footnote 329
Second, states can sometimes mitigate foreign-sourced threats by leveraging their territorial jurisdiction without directly regulating foreigners’ extraterritorial conduct. EU regulation offers an instructive example. As Anu Bradford and others have shown, the EU manages to protect its people from a host of transboundary harms simply by requiring that goods imported into the Union satisfy EU regulatory standards.Footnote 330 European regulators do not need to apply their laws directly to farms and factories abroad if they can instead prevent foreign nationals from introducing dangerous items, such as hazardous chemicals and contaminated food, into their borders. Deployed in this way, territorial regulation can be a powerful measure for combatting transboundary harm.
States and regional organizations must take care, however, to ensure that their territorial regulations do not undermine the right to self-determination. Consider EU import restrictions once again. Given the value associated with access to the European market, compliance with EU regulatory standards is an offer that many foreign companies cannot realistically refuse.Footnote 331 Once foreign companies align their operations with EU standards, they have incentives to lobby their own states to adopt similar regulations.Footnote 332 Bradford refers to this dynamic as the “Brussels Effect”: due to its large market and stringent regulatory standards, the EU is “effectively able to set the regulatory standards for all other states.”Footnote 333 Few would dispute the EU's authority to adopt import restrictions to safeguard its people from exposure to hazardous chemicals and contaminated food. For residents of the EU, such regulations may reflect collective self-determination. However, the more power the EU wields over foreign countries through the Brussels Effect, the more its standards may become a form of de facto foreign rule akin to the de jure domination of extraterritorial lawmaking.Footnote 334 Accordingly, when the EU adopts territorial regulations with extraterritorial effects, it should cooperate with foreign states to address reasonable objections, thereby “promot[ing], through joint and separate action, realization of the principle of equal rights and self-determination of peoples.”Footnote 335
Third, when states encounter threats from external sources, they are entitled to call upon other states to prevent and suppress transboundary harm. Customary international law prohibits states from allowing their territory to be used for activities that cause significant harm abroad, such as pollution,Footnote 336 terrorism,Footnote 337 and cyber-attacks.Footnote 338 States from which transboundary harms originate must exercise “due diligence” to prevent transboundary harm.Footnote 339 To satisfy this due diligence obligation, they must enact laws that are designed to minimize and mitigate transboundary harm, as well as implement proactive measures to enforce those laws.Footnote 340 They must also consult with states likely to be affected to “seek solutions based on an equitable balance of interests.”Footnote 341 If these consultations do not yield a consensus-based solution, states where transboundary harm originates may decide how to proceed, but in doing so, they must account for other states’ equitable interests.Footnote 342 Should disputes arise, the states concerned may convene an impartial fact-finding commission or pursue other “peaceful means” for international dispute settlement “chosen by mutual agreement,” such as negotiation, mediation, conciliation, arbitration, or adjudication.Footnote 343
Within the past several decades, international cooperation of this nature has produced a flurry of treaties and soft-law instruments aimed at preventing and suppressing transboundary harms. In the environmental arena, states have negotiated multilateral conventions to combat marine pollution,Footnote 344 atmospheric pollution,Footnote 345 hazardous wastes,Footnote 346 and nuclear pollution.Footnote 347 Nearly every state in the world has committed in the Terrorist Bombings Convention to “cooperate in the prevention of [terrorism]” and to provide “the greatest measure of assistance in connection with [criminal] investigations or criminal or extradition proceedings” arising from terrorist attacks.Footnote 348 While major regulatory gaps remain, these instruments illustrate the potential for states to address transboundary harm through international cooperation, rather than relying solely on unilateral extraterritorial lawmaking.
Unilateral action is most defensible when another state is unwilling or unable to curb transboundary harm originating in its territory. International cyberattacks exemplify this challenge. According to a report from the Council on Foreign Relations, thirty-four states are suspected of conducting cyber operations against other nations between 2005 and 2022, with China, Iran, North Korea, and Russia the most frequent offenders.Footnote 349 Critics argue that these states have failed to act in good faith, much less exercise due diligence, to prevent cross-border cyberattacks.Footnote 350 To make matters worse, none of these states have joined the Council of Europe's Convention on Cybercrime, which obligates states-parties to enact legislation and implement other measures to prevent and suppress cyberattacks.Footnote 351 When states decline to prevent and suppress cyberattacks originating from their territories, other states may conclude that unilateral action is their only recourse.
Nevertheless, extraterritorial lawmaking is unlikely to prove an effective deterrent against cyberattacks. As long as cybercriminals operate under the direction, consent, or acquiescence of the state in which they reside, they enjoy de facto impunity from punishment.Footnote 352 The United States’ response to foreign cyberattacks illustrates this challenge. Although American prosecutors have charged dozens of Chinese and Russian nationals implicated in cyberattacks,Footnote 353 actual arrests and convictions have been few and far between. Meanwhile, threating prosecution has not dissuaded Chinese and Russian hackers from targeting the United States.Footnote 354
The international law of countermeasures offers an alternative mechanism for compelling states to satisfy their obligations to prevent and suppress transboundary harm.Footnote 355 Countermeasures involve a state temporarily suspending its compliance with international obligations to compel another state to desist from violating international law.Footnote 356 Countermeasures commonly include international travel bans, asset freezes, and restrictions on international trade. Although countermeasures have a mixed track record at best, they arguably exert more pressure on uncooperative states as compared to criminal charges or civil actions directed against a limit number of individuals.Footnote 357
Lastly, some transboundary harms activate a state's right to self-defense under international law.Footnote 358 International lawyers generally agree that cyberattacks and terrorist violence justify the use of force in self-defense if they are attributable to a state and sufficiently destructive in their scale and effects.Footnote 359 States may also seek assistance from international institutions, such as the UN Security Council, in suppressing threats from dangerous non-state actors.Footnote 360
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To be clear, none of these alternatives to unilateral extraterritorial lawmaking is a panacea, and all are susceptible to abuse in the hands of powerful states. While multilateral lawmaking formally respects the right to self-determination by allowing national polities to choose the laws that apply to them, it carries the attendant risk that hegemonic powers could leverage their influence to impose treaties and customs that further consolidate their dominant positions.Footnote 361 Powerful states might also exploit territorial jurisdiction, countermeasures, self-defense, and international institutions to promote imperialist agendas.Footnote 362 The ever-present threat of great power domination looms large in an international order that affirms the formal equality of states but tolerates (and arguably perpetuates) significant practical inequalities.Footnote 363 Hence, the international community must remain vigilant to ensure that alternatives to unilateral extraterritorial lawmaking do not resurrect alien domination under a different guise. Whatever steps states and other global actors take to prevent transboundary harm, they must respect the right to self-determination by refraining from subjecting “peoples to alien subjugation, domination and exploitation.”Footnote 364
Future scholarship might fruitfully explore the comparative threats of domination and exploitation associated with extraterritorial lawmaking, on the one hand, and other tools for dealing with transboundary harm, such as territorial regulation and multilateral cooperation, on the other hand. For present purposes, however, the essential point is that states have an array of options available for responding to transboundary harm without resorting to extraterritoriality. Ending legal imperialism would not render states defenseless against such harm, but it would necessitate a strategic pivot toward measures that are at least potentially more compatible with the right to self-determination.
Ironically, it is the world's most powerful states—those least vulnerable to foreign domination and best equipped to defend their interests—that resort to extraterritoriality most frequently. Perhaps this should invite us to consider whether unilateral extraterritorial lawmaking continues to operate today as it has in times past: less as a shield for the oppressed than as the tyrant's sword.
Conclusion
Extraterritoriality is long overdue for a reckoning, and not only for its historical associations with colonialism. As this Article has shown, extraterritorial lawmaking continues to subject peoples around the world to foreign domination in violation of their right to self-determination. National authorities might believe that their laws promote the global public good. However, this belief—even if accurate in some respects—does not justify the political disenfranchisement and legal subjugation of other peoples. The time has long passed when international law permitted states to pass off imperial rule as benevolent unilateralism. To satisfy the international right to self-determination, law must always reflect “the free and genuine will of the people concerned.”Footnote 365
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