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Case Study

Of States and Second Life: Exploring the operation of Canadian law beyond Canada's borders

Increasing globalization creates a lot of legal headaches, especially when it comes to extraterritoriality – the application of a nation's laws outside of its territory. Four of our faculty members combine their diverse expertise to map out and make sense of all this change.

As the world grows smaller and ever more interdependent, events taking place in one country are increasingly having a significant impact on another.

It's hardly surprising then that states are signing more and more extraterritorial agreements that allow them to prohibit, regulate or facilitate behaviour occurring outside their borders.

Explains Schulich Law Professor and international law expert Hugh Kindred: "Extraterritorial agreements are not new. They've been around at least as long as globalization itself."

"What is new is the way in which globalization is upping the levels of difficulty and anxiety between states when it comes to achieving their desired jurisdictional reach abroad without unduly interfering with other states' authority," says Hugh.  

At the same time, the rapid growth of the Internet, including the advent of virtual worlds such as Second Life and multiplayer online games such as World of Warcraft, is also challenging traditional understandings of jurisdiction – and leading to uncertainty about the ability of Canadian authorities to do anything about the way Facebook operates or the way Google gathers information, to cite simply two examples.

The big picture

With these issues in mind, Hugh and three other colleagues decided to take a step back and – for the first time – conduct a comprehensive survey of trans-border jurisdictional integration across all fields of Canadian law.

Close collaboration with criminal law expert Steve Coughlan, transnational crime expert Rob Currie, and internet law expert Teresa Scassa led to a manuscript that offers a global, big picture perspective of the jurisdictional policies that law givers and law appliers might adopt – and why.

Fascinating findings

Explains Steve: "Along with Canada, most nations have recognized the need for cooperation – meaning most extraterritorial action in criminal law occurs by treaty or memoranda of understanding at the investigative stage."

"Yet the interesting thing has been extrapolating that – where possible – to see how different considerations arise depending on whether the law in question is meant to forbid behaviour, influence behaviour or simply make things easier when acting overseas," he says.

The research also uncovered some fascinating findings when it comes to international law, explains Rob: "For example, while the law of the sea or international trade law tends to be detailed, the rules relating to extraterritorial jurisdiction tend to provide only guidance to states about how to deal with situations where more than one state might want to regulate a particular matter."

"Specifically, when we began the research we anticipated we'd be able to compare and contrast the approaches to extraterritorial jurisdiction among groups of states with common legal traditions – for example, common law states and civil law states – and perhaps also common geography," he says.

"However, we discovered states are in fact quite idiosyncratic about this – often because of their domestic constitutional laws. And even states you would expect to have similar approaches displayed wild divergence. So it's difficult to generalize about state practice at any level above the individual state – making this a devilishly hard area in which to tease out the international rules," concludes Rob.

Evolution

The project grew in stages.

In 2007, Rob and Steve combined their expertise to publish a paper called "Extraterritorial Criminal Jurisdiction: Bigger Picture or Smaller Frame?"

This led to writing a report for the Law Commission of Canada on the extraterritorial application of law generally. It was at that time that Hugh and Teresa – now an Ottawa-based Canada Research Chair – became involved.

"We wrote that report," says Steve. "And even though it ended up being twice the length the commission had initially requested, we felt there was much more to be said."

"That was when the four of us successfully applied for a SSHRC grant to help us write this book."

The four will shortly approach a publisher for their manuscript, which has the working title Law Beyond Borders: Extraterritorial Jurisdiction in an Age of Globalization.