An extraterritorial operation in

international law International law, also known as public international law and the law of nations, is the set of Rule of law, rules, norms, Customary law, legal customs and standards that State (polity), states and other actors feel an obligation to, and generall ...

is a

law enforcement Law enforcement is the activity of some members of the government or other social institutions who act in an organized manner to enforce the law by investigating, deterring, rehabilitating, or punishing people who violate the rules and norms gove ...

military A military, also known collectively as armed forces, is a heavily armed, highly organized force primarily intended for warfare. Militaries are typically authorized and maintained by a sovereign state, with their members identifiable by a d ...

operation Operation or Operations may refer to: Arts, entertainment and media * ''Operation'' (game), a battery-operated board game that challenges dexterity * Operation (music), a term used in musical set theory * ''Operations'' (magazine), Multi-Man ...

that takes place outside the territory or

jurisdiction Jurisdiction (from Latin 'law' and 'speech' or 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, the concept of jurisdiction applies at multiple level ...

of the state whose forces are conducting the operation, generally within the territory of another sovereign state. Under international law, these activities are generally highly restricted, and it is considered a violation of a

state State most commonly refers to: * State (polity), a centralized political organization that regulates law and society within a territory **Sovereign state, a sovereign polity in international law, commonly referred to as a country **Nation state, a ...

sovereignty Sovereignty can generally be defined as supreme authority. Sovereignty entails hierarchy within a state as well as external autonomy for states. In any state, sovereignty is assigned to the person, body or institution that has the ultimate au ...

if any other state engages in law enforcement or military operations within another state without gaining that state's consent.

Background

Law enforcement

The policing of transnational and international crimes is a challenge to state-based law enforcement agencies, as jurisdiction restricts the direct intervention a state's agencies can legally take in another state's jurisdiction, with even basic law enforcement activities such as arrest and detention "tantamount to abduction" when carried out extraterritorially. These explicit limits on extraterritorial law enforcement operations has therefore instead encouraged co-operation between law enforcement agencies of sovereign states, forming supranational agencies such as

Interpol The International Criminal Police Organization – INTERPOL (abbreviated as ICPO–INTERPOL), commonly known as Interpol ( , ; stylized in allcaps), is an international organization that facilitates worldwide police cooperation and crime cont ...

to encourage co-operation, and placing additional obligations on the state such as ''

aut dedere aut judicare In law, the principle of ''aut dedere aut judicare'' (Latin for "either Extradition, extradite or Prosecution, prosecute") refers to the obligation, legal obligation of Sovereign state, states under public international law to prosecute persons who ...

'' ("

extradite In an extradition, one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction, into the custody of the other's law enforcement. It is a cooperative law enforcement procedure between the two jurisdict ...

or prosecute") to compel prosecution of certain types of transnational crime, including

hijacking Hijacking may refer to: Common usage Computing and technology * Bluejacking, the unsolicited transmission of data via Bluetooth * Brandjacking, the unauthorized use of a company's brand * Browser hijacking * Clickjacking (including ''likej ...

civilian aircraft Civil aviation is one of two major categories of flying, representing all non-military and non-state aviation, which can be both private and commercial. Most countries in the world are members of the International Civil Aviation Organization and ...

, taking of civilian hostages, and other acts of

terrorism Terrorism, in its broadest sense, is the use of violence against non-combatants to achieve political or ideological aims. The term is used in this regard primarily to refer to intentional violence during peacetime or in the context of war aga ...

, as well as crimes against

diplomat A diplomat (from ; romanization, romanized ''diploma'') is a person appointed by a state (polity), state, International organization, intergovernmental, or Non-governmental organization, nongovernmental institution to conduct diplomacy with one ...

s and other " internationally protected persons".

Military operations

While extraterritorial law enforcement activity is highly restricted and subject to the approval of the 'host' state, traditional interstate military operations assume some degree of extraterritorial operation. As Stigall points out, innate in 'just' war (''

jus ad bellum ' ( or ), literally "right to war" in Latin, refers to "the conditions under which States may resort to war or to the use of armed force in general". Jus ad bellum is one pillar of just war theory. Just war theory states that war should only be ...

'') is the expectation that one state may be conducting military activity against, and within the borders, of another state; the

laws of armed conflict International humanitarian law (IHL), also referred to as the laws of armed conflict or the laws of war, is the law that regulates the conduct of war (''jus in bello''). It is a branch of international law that seeks to limit the effects of ar ...

" resupposeextraterritoriality". Therefore, " the circumstances exist for the lawful use of force under ''jus ad bellum'', then so long as a state abides by the rules articulated in ''

jus in bello The law of war is a component of international law that regulates the conditions for initiating war (''jus ad bellum'') and the conduct of hostilities (''jus in bello''). Laws of war define sovereignty and nationhood, states and territories, ...

'' he law of war that state’s extraterritorial actions are considered lawful."

"Unwilling or unable"

Problems with the legitimacy of extraterritorial operations arise, according to Stigall, when one state is conducting military activity against non-state actors in a state "that is not party to the conflict". Although some commentators suggest that the use of force is permitted in some of these cases, with Deeks' commentary on the 'Unwilling or Unable Test' mentioning sources that recommend that "neutrality law permits a belligerent to use force on a neutral state’s territory if the neutral state is unable or unwilling to prevent violations of its neutrality by another belligerent", Stigall reminds "that such view is not universal, and textual authority for such cross-border attacks is limited".

Humanitarian and human rights law

For the

Council of Europe The Council of Europe (CoE; , CdE) is an international organisation with the goal of upholding human rights, democracy and the Law in Europe, rule of law in Europe. Founded in 1949, it is Europe's oldest intergovernmental organisation, represe ...

, key tenets of its

human rights law International human rights law (IHRL) is the body of international law designed to promote human rights on social, regional, and domestic levels. As a form of international law, international human rights law is primarily made up of treaties, ag ...

jurisdiction are laid down in Article 1 of the European Convention on Human Rights (ECHR), with the convention employed to complement and reinforce the more specific scope of

humanitarian law International humanitarian law (IHL), also referred to as the laws of armed conflict or the laws of war, is the law that regulates the conduct of war ('' jus in bello''). It is a branch of international law that seeks to limit the effects of a ...

. The application of this to extraterritorial operations has been noted by Ryngaert as mixed, with ''Al-Skeini and others v United Kingdom'' in 2011 attempting "to square ''Bankovic '' 'v. Belgiums 'sufficient control' model of jurisdictionwith the personal model of jurisdiction", and ''Al-Jedda v United Kingdom'' "tried to reconcile the 'ultimate control and authority' standard ... with the 'effective operational control' standard endorsed by the UN's International Law Commission." Ryngaert declares each of the two results to be "an awkward hybrid theory".

Notes and references

Notes

Citations

References

* * * * * {{cite journal , ssrn=2211219 , title=Ungoverned Spaces, Transnational Crime, and the Prohibition on Extraterritorial Enforcement Jurisdiction in International Law , last=Stigall , first=Dan E. , journal=Notre Dame Journal of International & Comparative Law , date=3 February 2013 Law enforcement Law of war Human rights Military law Transnational organized crime International security War and politics Military operations by type Extraterritorial jurisdiction