Extraterritoriality, Climate Change, and National Security: In Defense of Extraterritorial Laws

Abstract

Extraterritorial jurisdiction inherently tests the boundary between sovereign governance and international cooperation. It hovers between unilateralism and cosmopolitan conceptions of obligation. Evan Criddle has argued that extraterritorial laws violate the right to self-determination if those laws subject a people to “uninvited foreign rule.”1 In turn, however, the right to self-determination permits extraterritorial lawmaking in service of shared legal norms. This is because “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.”2 Criddle also accepts that active nationality jurisdiction is less likely to offend self-determination.3 Assuming Criddle is correct, criminal laws with extraterritorial scope that address climate change are likely to fall into the category of “laws based on universally accepted norms.” This is particularly so given the existential risks posed to all life on Earth by a warming planet, and the now widely recognized human right to a clean, healthy, and sustainable environment. Climate change also creates national security risks, and the right of a nation state to defend its national security is not incompatible with self-determination. While there is no fixed definition of national security under international law, and domestic definitions vary according to context, the essence of national security is the right and obligation of a nation state to defend its existence, its citizens, and its values. Even narrow conceptions of national security now accommodate climate change due to the breadth and depth of its existential consequences. Show more