Domestic Responses to Transnational Crime: The Limits of National Law

Abstract:     
In recent years, countries have increasingly used national laws, applied extraterritorially, to respond to the growing problem of transnational criminal threats, i.e., human, narcotics and arms trafficking, industrial and technological espionage, piracy and terrorism, and business crimes. International law scholars often make two claims when discussing this phenomenon. First, they assert (or assume) that the increased use of extraterritorial domestic law is unavoidable and an inevitable feature of a globalized world. Second, they assert that the trend is not merely inevitable, but normatively desirable and an effective response to burgeoning transnational criminal activity.

This paper pushes back on these commonly made assertions. While globalized crime requires a response, no compelling reason exists for why that response should be unilateral and domestic in nature, rather than multilateral and collaborative. While perhaps useful, as a last resort in narrow contexts, extraterritorial national laws are more problematic than commonly assumed, and rarely lead to effective, long-term solutions. The paper explores how extraterritorial criminal laws often detract from more comprehensive and meaningful multilateral efforts. Extraterritorial criminal laws also risk shifting the focus away from the offenders and their victims, to the prosecutorial response and whether the response is legitimate and legal. The paper focuses on the Canadian and American experiences.

In celebration of its 20th anniversary, the International Centre for Criminal Law Reform and Criminal Justice Policy joined the International Society for the Reform of Criminal Law to host a conference on the "Globalization of Crime – Criminal Justice Responses." The conference was held in Ottawa, Canada in August 2011. This paper was written for that conference, and presented at a workshop focused on issues of extraterritorial jurisdiction.

Number of Pages in PDF File: 16

Keywords: transnational crime, organized crime, extraterritorial jurisdiction, criminal jurisdiction, prescriptive jurisdiction, legislative jurisdiction, globalization, globalized crime, international crime, trafficking, extraterritoriality, globalization, corporate prosecutions, ICCLR, ISRCL

JEL Classification: K14, K21, K22, K33, K10

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