→ border, humanity, international law, sovereignty, transnational
The term belongs to public international law and more particularly to extraterritorial jurisdiction. It refers to the competence of a State to establish, apply and enforce rules of conduct by State or non-State actors towards persons, property or events beyond its borders (Oxford Public Law Dictionary). The Jacques Delors Institute gives it this definition: "Extraterritoriality generally refers to the unilateral use by a State of instruments taken under its sovereign jurisdiction to enforce its own law, in a territory other than its own, for actions committed outside its territory, by entities or persons from other countries. "This power may be exercised by prescription, judgment or execution. Prescriptive jurisdiction refers to the authority of a State to establish legal standards, while jurisdictional jurisdiction gives the State the power to resolve conflicts between competing claims. The enforcement power, on the other hand, refers to the power of a State to enforce its national legislation.
The United States uses a variety of extraterritorial means based on its own legislation with respect to private individuals or legal entities, resulting in the imposition of international sanctions, the suppression of bribery of public officials abroad (under the Foreign Corrupt Practices Act) and the imposition of US taxation on non-resident US citizens: the Account Tax Compliance Act (FATCA)requires that foreign financial Institutions and certain other non-financial foreign entities report on the foreign assets held by their U.S. account holders, and that U.S. persons to report, depending on the value, their foreign financial accounts and foreign assets. The economic sanctions that targeted Cuba, Libya or Sudan now apply to Iran and Russia, the latter under the Counter America's Adversaries Through Sanctions Act (CAATSA). Against corruption, the country uses the Foreign Corrupt Practices Act (FCPA) of 1977, and has promoted the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions adopted by the Organisation for Economic Co-operation and Development (OECD) in 1997. Trade protectionism, on the other hand, has been strengthened by the Trump government since 2017. In the field of defence, the International Traffic in Arms Regulations (ITAR) provide for a prohibition on the sale to a third country of weapons containing at least one American component. Finally, the regulations established by the Committee on Foreign Investment (CFIUS) in 2018 will require foreign investors to submit to the authorities any acquisition of a stake or the takeover of a US company in 27 key sectors such as aerospace, telecommunications, computer industry, semiconductors and batteries.
The notion also overlaps with that of transnationality, which refers to interactions between actors, particularly non-state actors, acting independently of national authorities or international organisations. This covers the field of civil society in the broad sense, composed of the non-profit-making associative sector, but also, according to some definitions, economic actors (multinational companies). Transnationality can also be embodied by the action of certain individuals such as Raoul Wallenberg, who saved thousands of Hungarian Jews from Budapest, occupied by Nazi Germany in July 1944, by issuing them Swedish papers in the final months of the destruction of European Jews. He had also frantically bought buildings in Hungary to house as many Jews as possible, and invoked extraterritorial status.
The proliferation of transnational actors unfolds in a more horizontal pattern of extraterritoriality, distinct from the unipolar or hierarchical pattern of state-centred extraterritoriality. At the height of transnational associative action, Richard Falk (1995) cited international meetings flanked by parallel meetings of INGOs as the announcement, after many others, of a bicameral world parliament that would provide a framework for inter-state action, while noting the lack of resources, the fragmentation of such a "global civil society" and, ultimately, its inability to influence the international system despite the creation of voluntary bodies like the Global Compact. The action of non-state networks also remained ambiguous, because globalization "from below" could just as easily weaken states by generating a cosmopolitanism comparable to the pre-state jungle feared by Hobbes, or a "new Middle Ages" (Booth 1991) made up of a galaxy of private strongholds, whether for-profit or non profit, devoid of any supra-state coordination.
The term "extraterritorial", which is used in some works such as Isaac Paenson's Multilingual Manual of the terminology of Public International Law (1963, 122-124), is not so common and refers to the privilege enjoyed by the diplomatic agent acting as a liaison between the sending State, whose sovereignty he embodies, and the State to which he is accredited, and also covers transit through third States to the host country. This type of privilege, which has a long history and has always been respected, is one of the customary elements underlying contemporary diplomatic law. Its legal basis, according to Grotius, is embodied in the "Prince's dignity" (any constraint on him would be an offence to the sovereignty of his State) and in his extraterritorial state, which is a "legal fiction". More recent IR theories hold to the premise that privileges and immunities are required for the agent to perform his or her duties within the international apparatus (the theory of the interest of the function). They are defined by inviolability, immunity from jurisdiction, tax immunity, freedom of communication, the right to private worship and exemption from military charges.
It should also be noted that the term "offshore", of similar meaning, is used to describe companies with offshore activities in the sense that they are registered in a given country not to carry on an activity there, but to have a mailbox that offers them the tax or regulatory advantages of the chosen tax haven.
In a detailed monograph, Cedric Ryngaert (2015) notes that the term "extraterritoriality" remains ambiguous and, like other authors, uses the notion of "reasonable" rather than "rational" about an agreement resulting from negotiation based on pragmatic situations. The latter concept could emerge, he said, from transnational communication networks that link state bodies and private actors. He added that states, in different legal contexts and if a given case clearly refers to another state, tend to apply their own laws only in the alternative. The principle of subsidiarity that appears here serves to restrict the exercise of jurisdiction by giving the state with the closest connection the primary right to exercise its jurisdiction, so that the "primary" state does not exercise its jurisdiction, even if, at the global level, this were desirable. In this case, the "subsidiary" state has the right - and sometimes the duty - to intervene in the interest of the world community. However, it appears that the theories of rational choice that inspire these reports are based on "the premise of an autonomous and masterful national legislator, ignoring the complexity of normative and jurisdictional interactions resulting from extraterritorial laws, regional standards or potential conflicts between global standards (UN, WTO, ILO)" (Delmas-Marty 2006, 15).
The legal view is that interests, which underpin the law of traditional jurisdiction, ensure that harmful global impunity and under-regulation do not occur. Sovereignty then becomes a relative concept, because its substance is subject to international law and international interest. In practice, it will be the state with the strongest connection to a situation that will have the right to exercise its jurisdiction, but if it does not do so adequately from the point of view of other states, provided, however, that the exercise of its jurisdiction serves the general interest.
An old phenomenon
While political scientists have noted that this aspect of international relations has been highlighted since the 1980s, historians have shown that it goes back a long way in history. The use of violence by political entities in extraterritorial form, by universalist religions and by empires with religious or ideological foundations is certainly not new. It dates back to the highest antiquity and has been found over the centuries among pirates, mercenaries and other ancestors of mafia networks (Thompson 2004). The Italian Renaissance, between the 14th and 16th centuries, is an illustration of this, through the establishment of contracts (condotta), condottieri concluded between mercenary companies, real standing armies, and Italian cities, after the decline of feudal military formations. The British Crown used the private militias of the East India Company in the colonization of India from 1757 to 1858, authorized by the Royal Charter granted by Queen Elizabeth I on 31 December 1600, before the British Crown took over the occupied territories after the Indian rebellion of 1857 and adopted the Government of India Act in 1858. Similarly, the sixteen-year war between England and fast-growing Spain was an opportunity for the English to resort to private actors such as the slave-driver privateer Francis Drake and merchant John Hawkins, who nowadays would be likened to some form of piracy or terrorism. At the end of the 16th century, Queen Elizabeth I of England invested in the Hawkins slave trade and used Drake's non-state services, particularly when she faced the Spanish fleet known as the Invencible Armada (Lloyd 1984, 9-11).
Nowadays, many non-governmental entities are created or manipulated by States or by Mafia or terrorist networks. In the literal sense, the latter remain non-governmental entities in the sense that they express particular individual or collective interests, albeit in the extreme form of criminal organizations such as the Japanese yakuza, Russian bratva or more recent terrorist networks. However, some overthrows are taking place, such as that of Great Britain, which is now prosecuting slave traffickers such as British nurse Josephine Iyamu, convicted in court for delivering Nigerian women to Germany for work or prostitution, which is the first implementation of British anti-slavery legislation (over 5,000 victims were identified in 2017) for a crime committed outside its borders. One of the reasons for these extraterritorial prosecutions is that some countries lack any legislation to punish acts of a cross-border nature (The Economist, 4 July 2018).
The principle of publicity, through the creation of a transnational public space, remains precarious for these various reasons, as it is increasingly challenged by authoritarian regimes. In both cases, it remains problematic for IR theory to theorize non-state associative phenomena, whose components are as much communitarian as they are societal. Thus, associations of communities or ethnic groups, whether territorial or not (transnational such as associations of indigenous peoples, gypsies or other people without borders), with associative status, are subject to the authority of states while some of them claim state status. On the other hand, as associations (INGOs) of communities sometimes have consultative status with the UN or UNESCO or enjoy the right of self-determination of peoples, they are likely to conflict with individual rights as representatives of community rights, which in their own way conflict with the territorial law of states (Archibugi 2003).
In recent times, the international political order has seen extraterritorial law materialize only very partially, as illustrated by the unfortunate attempt of the League of Nations and the more accomplished attempt of the United Nations. It remains far below cosmopolitical but utopian projects, such as the World City imagined by Paul Otlet with the support of Belgian diplomacy in the first half of the 20th century. This initiative benefited from the contribution of architects Le Corbusier and Pierre Jeanneret, who drew up the plans according to a hierarchical and pyramidal symbolism and planned to build it as an extraterritorial site in Geneva, then in Brussels and finally in Antwerp, before the project was finally abandoned (Ghils 2016).
The extraterritorial spillover of state competences is particularly evident in conflicts between state and inter-state law and the prerogatives claimed by economic actors, as illustrated by the debate triggered by the signing of the AACC by EU bodies. Its main issue was the evolution of international law, which was in danger of being largely driven by the public into the private sector. Already, international law is very dependent on US law, which imposes its extraterritorial norms all over the world by assuming de facto universal jurisdiction. However, we cannot ignore the responsibility of the EU institutions and the shortcomings of a European democracy that is trying to find its own way, but whose institutions "forget" to consult and inform citizens about their approaches and objectives. However, national and regional authorities have the power to act as counter-powers, as the 38 parliamentary assemblies are called upon to vote on the adoption of the AACC in order for it to be effective.
As can be seen, law is becoming more international and is no longer limited to state courts, as illustrated by the extension of standards to the regional level within the European Union and, to a lesser extent, to the global level (UN, WTO). International courts have been established in these contexts (European Court of Human Rights, International Criminal Court), and some national jurisdictions claim extraterritoriality or universal jurisdiction, but these extensions are overwhelmed by various developments, from cooperation to the harmonization or even unification of national, international and supranational standards, resulting in complex, evolving and unstable legal systems (Delmas-Marty 2006).
On the other hand, some States wishing to apply universal standards have proclaimed universal jurisdiction, first practised by American law under the 1789 Alien Tort Claims Act, which has fallen into disuse but is now being invoked again. This law applies to violations by States or their agents, but also to individuals and transnational corporations, but was limited by the Supreme Court in Kiobel v. Royal Dutch Petroleum Co. referring to the absence of liability of legal persons for serious human rights violations, as defended in countries with a Romano-Germanic tradition. The recent legislative progress made in Europe in the fight against corruption deserves to be reinforced. The Foreign Corruption Practices Act (FCPA) has been applicable in the United States since 1977, while the Organisation for Economic Co-operation and Development (OECD) adopted the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions in 1997. Finally, the UN published the UN Convention against Corruption in 2005.
It appears that universal jurisdiction cannot be indefinitely applied in practice, because only the most powerful countries could afford it, leaving States free not to adopt it. Belgium, as detailed by the Centre for International Law of the Free University of Brussels, had been a pioneer in adopting a law aimed at punishing serious breaches of the Geneva Conventions of 12 August 1949 and Additional Protocols I and II, 8 June 1977 (war crimes in a domestic or international context), which paved the way for an investigation against Augusto Pinochet on 1 November 1998, followed by an arrest warrant. The universal jurisdiction of the Belgian judge was then extended to the crime of genocide and crimes against humanity without any immunity being able to oppose it, which made it possible to receive some complaints (trial and conviction) before the Brussels Assize Court in April 2001, of four people accused of participating in the Rwandan genocide), followed by others against Fidel Castro, Saddam Hussein, George Bush Senior and Colin Powell for acts committed during the first Gulf War, Laurent Gbagbo, Hissène Habré and Ariel Sharon (which caused violent protests from Israel). After a further revision of the law, Belgium was condemned by the International Court of Justice to overturn the international arrest warrant issued against Abdulaye Yerodia while he was Minister of Foreign Affairs of the Democratic Republic of Congo, on the grounds that the arrest warrant ignored the immunity granted to current Heads of State and Ministers of Foreign Affairs, which led to a further amendment of the law in 2003 to take into account this judgment. Other complaints were filed, such as those against US politicians and military officials following the US intervention in Iraq, followed by virulent reactions from the US, including threats to move NATO headquarters from Brussels. The American Minister of Defence, Donald Rumsfeld, in particular, denied Belgium's authority to judge American leaders and made the American contribution to the construction of the new NATO headquarters in Brussels conditional on the guarantee that Belgium would once again be "a hospitable place for the conduct of NATO activities". These various reactions led to the repeal of the so-called universal jurisdiction law (Centre de droit international, ULB).
The negation of the universal
Universal values proclaimed in the Universal Declaration of Human Rights are challenged in various ways, including by powerful states such as China in the name of its own values, or by the United States whose republican constitution was intended from the outset to be universal, but also by certain authoritarian states such as Turkey, which pursue their political opponents abroad. The North American case has caused various controversies since the adoption of the Extraordinary Rendition Program (usually rendered by "extraterritorial arrest") set up by the United States government prior to September 11, 2001 as a global mechanism for the arrest, imprisonment and trial of non-American individuals outside the national territory, considered guilty of violating US security. This political programme was emancipating itself from both national and international law, which was attached to the concepts of territoriality and sovereignty. It was necessary for the UN Commission on Human Rights to renew the condemnation on the initiative, in particular, of France, of endemic disappearances which usually took place at the local level, dictated by a State, a community or a region under the influence of an ideology which claims to be superimposed on territorial norms. In 2006, the United Nations adopted the International Convention against Enforced Disappearances, signed on 6 February 2007 in Paris by representatives of fifty-seven countries. Finally, on 31 May 2018 the European Court of Human Rights (ECHR) found Romania and Lithuania guilty of harbouring CIA secret prisons in which detainees were tortured. The judgment does not deal with the merits, such as the security reasons invoked by States, but with the methods used:"... inhuman and degrading treatment, violation of the right to respect for private and family life and violation of the right to an effective remedy" (Follorou June 2018).
In 2018, following the US withdrawal from the historic 2015 Joint Comprehensive Plan of Action (JCPOA) agreement, which provided for the lifting of sanctions against Iran in return for the Islamic Republic's commitment not to acquire nuclear weapons, some European leaders (France, Germany, United Kingdom) became aware of the imposition by the Americans of rules on those who remain their allies and wanted to obtain "different rules" concerning European companies in Iran. The EU must protect its economic sovereignty against the effects of US legislation of an extraterritorial nature, as it did in response to the sanctions it imposed on Cuba in the 1990s.
Certainly, violating the sovereignty of a weak state by a powerful state is a general rule in the history of inter-state relations, vividly illustrated by colonialist enterprises and the expansion of empires throughout history. It may, however, be made easier by the tacit or negotiated renunciation by certain States, which are not necessarily weak from a military or economic point of view, to exercise their traditional prerogatives and grant the hyperpower or superpower extraterritorial privileges, enabling it to freely defend its interests. The criteria applied are not very different from those of empires, ideological movements or religions with universal aims, whose territorial boundaries are never set.
Policies allowing the arrest and imprisonment of individuals outside national borders are made possible by the extension of a reticular space superimposed on the distribution of powers between sovereign states, which a Council of Europe report (2006, 66) described as the "spider's web". American law is based on a regime that can also be described as post-territorial when borders lose their relevance and allow for deterritorialized physical movement. The conception of American republicanism is undoubtedly not alien to this, which from its foundation has been based on universal values. The myth of origin is that of a state of immaculate innocence on a "virgin" continent, the "New World", the "City on the Hill" of George Washington's authentic humanity, founded by Puritan pilgrims from Massachusetts. The 1776 Declaration of Independence proclaimed that "all men are created equal" and marked the birth of a nation whose only qualification to be a citizen was membership in the human race. The unbridled imagination of the Quaker philosopher Thomas Paine (late 18th century) saw in the American Revolution the freedom to "start the world over". For President Abraham Lincoln (1809-1865), the survival of the Union during the civil war was vital for the whole world because it conditioned a democratic experience whose failure would lead to the very idea of popular government of the earth disappearing. This did not, it must be said, prevent the Naturalization Act of 1790 from introducing racial discrimination by limiting the right of naturalization to free white persons, nor in the 1820s and 1830s from extending suffrage to all white men while denying it to the few free blacks who had previously been granted the right to vote.
Other cases of extraterritorial intervention are well known, such as incursions into Pakistani territory using drones, or, more discreetly, the extension authorized by Obama, in particular through the CIA, of extraterritoriality privileges to many American intelligence agents who are often independent under contract, This makes it possible to conceal their true mission from the Pakistani government, which reportedly issued hundreds of work visas without knowing that it was issuing residence permits to American spies (Jaffrelot 2012, 1-49).
Other cases are more worrying because they are linked to countries neighbouring Europe, first and foremost Russia, which did not hesitate to annex the Ukrainian province of Crimea in violation of international law. Further north, the Scandinavian countries are concerned about a possible Russian incursion into the border town of Narva in northern Estonia, whose 65,000 inhabitants are 90% Russian-speaking. Like the takeover of Donetsk in Ukraine, Moscow could "help" Russian-speaking Estonians who "felt threatened". The Kremlin's military doctrine legitimizes since 2010 any operation aimed at rescuing "ethnic Russians" living outside Russia (Gyldén 2018).
Another country in the vicinity of Europe, Turkey organizes intelligence services in various European countries, as did Chilean DINA (Dirección de inteligencia nacional) during the military dictatorship of Augusto Pinochet, who established a network of agents in the 1970s to identify and eliminate opponents of the dictatorship. Nowadays, European courts want to attack itinerant commandos of the Turkish Secret Service (TIS) who have been acting against political opponents and Kurdish leaders since 2017 in Belgium, Germany and France. These countries have increased judicial cooperation to prevent MIT agents from eliminating Turkish opponents who have taken refuge abroad (Follorou, March 2018).
States are not the only ones involved, since the universalism of values is also challenged by certain ideologies or religions, as illustrated by the Declaration of Human Rights in Islam adopted in Cairo in 1990 by the 45 members of the Organization of the Islamic Conference (OIC), which considers the sharia as the sole source of these rights, here based on the authority of a non-state organization. Religious communities with political ambitions that claim to be universal have little consideration for sovereignty or autonomy claims of cultural communities. The peculiar character of monotheistic faith is not based on rationality or a political right, but on a conviction of its own, an emotional state that takes the acquired faith as the only one worthwhile. Engagement in the holy war (frequently equated with the ambiguous term "jihad" when referring to Islam) is the most violent expression, but expresses the same conviction of being in the truth and of representing belonging without borders to a universal community. It claims to express the consciousness of a totalizing sense of the world, indifferent to the rational arguments of moralists, geopolitical or social scientists who seek another motivation for them. Religious universalism, in holy war as in messianic enterprise, is extraterritorial in nature and cannot lend itself to integration or multicultural policies, nor subordinate itself to national identities or cosmopolitan internationalism. If there are several universalist doctrines, they will necessarily be rival and incompatible, but will remain totalizing, because "Believers are afraid of "God", non-believers are afraid to talk about it", as Daniel Sibony (cited in Birnbaum 2015, 17) notes, fear being the most powerful source of the human psyche.
Christian universalism was powerfully promoted by St. Paul who, initially preaching to Jews and new Christians alike, gradually detached the new doctrine from Judaism, proclaiming that there was no difference between slaves and free men, Jews and Greeks, men and women, "all united in Jesus Christ". A Pharisaic Jew from Tarsus (Cilicia, south of present-day Turkey), Paul (Saul in Hebrew) was a Roman citizen by birth, wrote to the Celtic Galatians, travelled to Palestine to persecute Christians, considered to be part of a seditious sect of Judaism, and then converted and proclaimed himself an evangelist and messenger of Jesus, although he had never met him. He wrote his epistles in Greek, and his universalist theology was probably influenced by the Greek-Roman universalism of the time, with Roman citizenship being granted to the multiple nationalities of the empire. It is significant that in the 19th century the Lutheran theologian Adolf von Harnack (1851-1930) considered that it was Paul who delivered the Christian religion from Judaism (Gager 2004). One illustration of the conquering universalism of Christianity, which remains here associated with imperial politics, is that of pre-modern Castilians who, in the wake of the late Middle Ages and the reconquista against Islam, aimed not so much at establishing new political borders as consolidating Christianity, marked by the Treaty of Tordesillas of 1494 under the authority of Pope Alexander VI. The abolition of state borders between the European and Amerindian worlds by a formally non-state authority thus reverted to the mythical sphere of origins.
The Islamic doctrine presents itself differently, in particular because it has never severed politics from religion, unlike Christianity with the exception of the relative interdependence between institutions on both sides, and the less ambiguous case of Caesaropapism in Orthodoxy. On the cultural level, the doctrine also differs from early Christianity, because if it quickly forgets its Aramaic expression, spreads in various languages, is open to intercultural links and universal values. By contrast, Islam focuses exclusively on the Arabic language, relatively purged of its pre-Islamic background (polytheism in particular), with the only notable exception of the Jewish heritage which, according to exegetes, constitutes the bulk of Islamic writings (mainly Koran and hadiths).
In the international sphere, the supremacy of Islamic law over political legality led the European Court of Human Rights to declare in 2003 (Council of Europe 2004) that Islamic law was incompatible with democracy and human rights adopted by European democracies. The EC report concluded that"... a regime based on Sharia law is incompatible with the Convention, particularly with regard to its rules of criminal law and procedure, the place it gives to women in the legal system and its intervention in all areas of private and public life in accordance with religious norms". It is in fact a condemnation of the Koran, which is the main source of Muslim law. Indeed, the latter is recognized by Muslim countries as the main, if not the only, source of law, according to the 1990 Cairo Declaration mentioned above. One of the explanations of religious historians is that Judaism and Islam contain legal rules while the gospels are more moralistic. Sunni Islam was originally established on the political-religious structure of the Caliphate, although it did not have a hierarchical clergy. Avicenna, and Ibn Kaldoun (9th and 14th centuries) who is among the thinkers of the universal comparable to Marx or Tocqueville, theorized the alliance between faith and reason in a community of believers (umma) governed by the fundamental principles of theocracy. This doctrine knows neither the nation nor the sovereign state, by virtue of the perfect political order achieved in Medina from 622 to 632, when the Prophet became legislator, city chief and war chief all at once. Muslims, writes Ibn Khaldun, must wage an offensive war "because of the universal nature of Islam's mission and the obligation to convert everyone, willingly or forcibly. This character is not recognized to followers of other religions, who do not have a universal mission; they can only wage war to defend themselves. "» (1967, 459-460)
Generally, the power of non-state actors requires extending the notion of extraterritoriality to their various sectors of activity, whether commercial (multinational companies), financial (banking groups), mafia (trafficking of all kinds), paramilitary (terrorist networks) or religious. Transnational networks often remain outside the scope of international law, with the exception of the international and transnational associative world (INGOs), which generally comply with its standards. Relations between the international (inter-state) and the transnational economic sector have therefore generated a "soft law" of codes of conduct and guidelines such as the Global Compact launched by UN SG Kofi Annan in 2000, or the guiding principles of the Organisation for Economic Co-operation and Development and the United Nations, which remain non-binding (Ruggie 2011).
Security considerations related to terrorism are a recent cause of limiting universal norms, through the demand for "predictive justice that replaces responsibility with danger and punishment with neutralization, while organizing the "traceability" of "at-risk" populations" (Delmas-Marty 2014, 29). Some governments, such as in Syria, go so far as to relieve themselves of any constraint on their own population, which is considered "terrorist" if it expresses a feeling of political opposition. Humanist anthropology, based on free will, is giving way to widespread war, once called total war: enforced disappearances, torture and systematic rape, indefinite internment and extrajudicial executions show how people accused of terrorism lose their status as human beings (Human Rights Watch 2018).
In contrast with the criminal level, attempts to establish international standards have been inconsistent and ineffective. Among other documents, the study commissioned by the Special Representative of the United Nations Secretary-General for Business and Human Rights (SRSG) to develop guidelines on the obligations of states to protect against business-related abuses explored extraterritoriality in six different regulatory areas: anti-corruption, securities, antitrust laws, criminal law, civil affairs in general and the environment. The study adopts the distinction made by the SG between the use of national measures with extraterritorial implications and the exercise of direct extraterritorial jurisdiction over private actors or activities abroad (Zerk 2010). It notes that universal civil jurisdiction remains outside international law in its current state. Any extension is subject to objections from economic actors and states, as in cases of civil proceedings relating to international crimes (torture, war crimes, crimes against humanity, genocide, etc.), which allow or require States to exercise universal criminal jurisdiction.
When the origin of a company's criminal conduct is located in the State of the headquarters and is identified, even if the crime is committed outside its territory, it is easier to deal with the problem and, in some cases, to circumvent the prerogatives related to sovereignty. In order to clarify the obligations of companies with regard to the formal dispute settlement system, United Nations and OECD Guidelines have been developed for non-binding application in forum states (where the court must hear the matter).
The principles of civil jurisdiction have developed widely within the framework of national and regional legislation, despite the absence of a global framework for civil corporate jurisdiction, as many transnational corporate disputes involving extraterritoriality issues have been resolved through negotiation, arbitration or other means available in a conventional business context. Where such disputes have been contractual, the question of jurisdiction and choice of applicable law usually follows the rules set out in the contract, which reflect the will of the parties.
The isolationist policy adopted by the United States under the Trump presidency raises new questions in the trade field, as the economic and political sanctions imposed in this regard renounce multilateral relations, including with political allies, and are presented as measures designed to ensure the country's security. As they violate international law, the EU has therefore resorted to WTO standards. In addition, political disputes between the United States and countries that do not accept or are victims of such violations without being able to react, particularly in the context of Iran's nuclear weapons agreement, disrupt the situation of IRs between the applications of extraterritoriality and national responses to protect or respond to them. In the case of US sanctions imposed on companies operating in Iran, the economic sovereignty of EU Member States is at stake and is the subject of various responses. In addition to the ongoing negotiations with the US, the EU is considering the use of the 1996 European regulation, known as the "blocking statute", which makes it possible to condemn extraterritorial sanctions. Created to circumvent the embargo on Cuba, it allows European companies and courts not to comply with regulations on sanctions imposed by third countries and stipulates that no judgment decided by foreign courts on the basis of these regulations can be applied in the EU. However, this regulation has never been applied.
The EU also has the possibility of bringing an action before the International Court of Justice, which could declare the United States' exit from the Vienna Agreement illegal and would be a strong argument for recourse to the World Trade Organisation (WTO). Finally, the EU could block sanctions in another way, by prohibiting its companies from responding to investigators from the Office of Foreign Assets Control (OFAC), which would prevent the US judiciary from imposing sanctions (L'Obs, 8 August 2018).
For its part, France tries to prevent American sanctions for acts of corruption committed outside the United States by strengthening its legislative framework ("Sapin 2" law), imposing procedures on large companies to prevent corruption and influence peddling (code of conduct, internal alert system, risk mapping, third-party management procedure, accounting controls, training system, etc.).
On the financial side, the Europeans referred to the existence of a "foreign asset control office that allows the US Secretary of Finance to monitor, condemn and prosecute foreign companies that do not comply with US decisions" and considered setting up a similar European office to monitor the activities of foreign companies and verify that they comply with European decisions (Cazeneuve 2018).
The reemergence of the Universal
A recent case of extraterritoriality based on international law is the issuance by the French courts in November 2018 of international arrest warrants against three senior Syrian intelligence officials. These warrants were issued by an investigating judge, in accordance with the prosecutor's instructions, on charges of "complicity in acts of torture, complicity in enforced disappearances, complicity in crimes against humanity, war crimes and war crimes". This decision is part of the judicial investigation opened in October 2016 in Paris of charges of enforced disappearances and torture constituting crimes against humanity, and of complicity in these crimes. The investigation is based on the "Caesar" case, the pseudonym given to a Syrian military police photographer who fled his country in July 2013, taking with him some 50,000 photos of dead prisoners who died of hunger, disease or torture in the prisons of the Bashar Al-Assad regime between 2011 and 2013. These three arrest warrants come after the warrants issued in Germany and de facto prevent the Syrian officials concerned from travelling abroad, let alone to Europe, where cooperation between member countries is strengthened. These warrants are issued on the basis of universal jurisdiction under the international conventions mentioned above.
Finally, the threat of cyberattacks backed by state and non-state actors in elections held in various states appears to be aimed at disrupting and influencing the democratic processes. After suspicions expressed by US intelligence services due to alleged Russian interference in the US elections, the European Commissioner for Justice warned in November 2018 of the risk of interference and manipulation of the European elections. Eurostat surveys have found a growing mistrust in this regard, with 81% of Europeans in favour of greater transparency of advertising on social networks, while 80% want platforms to mention how much money comes from political parties. These concerns are confirmed by a report from the Estonian Information Systems Authority, to which more than 20 Member States, the European Commission and the EU Cybersecurity Agency have contributed. The document states that "a coordinated cyber attack could be serious enough to hinder the democratic process and prevent the European Parliament from forming after the election".
Recent European measures include the INSTEX trade mechanism launched by Britain, France and Germany on 31 January 2019 to bypass US sanctions on Iran, and the European Business Code put forward by the Treaty of Aachen on 22 January 2019, to avoid extraterritorial American laws.