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ET – Extraterritoriality – Alien or Friend

Speech given by Peter Rees, Legal Director, Royal Dutch Shell plc, at the KPMG Forensic Annual Law Lecture 2012 on September 25, 2012.
Peter Rees

It is 30 years since ET – The Extra Terrestrial was first released and broke all box office records.

The storyline is simple. An alien gets stranded on Earth and is protected by a child, who understands the good in him, against the forces of authority, who are innately suspicious, even aggressive towards him. Eventually, he gets to go home without being harmed.

The film encapsulates our equivocal relationship with extra terrestrials; we either love them or hate them. They are either benign or threatening – and most of the time it is the latter. The assumption we tend to have is that extra terrestrials are out to destroy us.

My first experience of extra terrestrials was in the early to mid-sixties. Some of you may be old enough to remember the television series, My Favourite Martian. It featured a friendly Martian who gets stranded on earth and is protected by a good hearted reporter against the forces of authority, who are innately suspicious about him. Sound familiar?

But so far as I was concerned this was an extra terrestrial who was kindly and unthreatening. He had various unusual powers. He could raise from his head two retractable antennae. He could become invisible, read minds and lift things up into the air using just his finger. He could slow time down or speed people up. But, fundamentally, his motivation for doing these things was beneficial rather than malign. He was a nice guy.

At the same time, in fact in the very same year that My Favourite Martian was first broadcast – 1963 – another television series was launched which portrayed extra terrestrials in a very different light. It has become the longest running science fiction television show in the world. It is of course Dr Who where, by and large, the extra terrestrials are portrayed as aggressors out to destroy humanity. So far as we are concerned, the Daleks have only one thing on their mind – “Exterminate”.

30 years on from ET and almost 50 years on from My Favourite Martian and Dr Who, another ET has come into sharp focus in my mind. Not ET standing for extra terrestrial, but ET standing for extra territorial. And I have to say that, like extra terrestrials, there seems to be equivocation as to whether extra territoriality is a force for good or evil. Whether these are powers that can be used for overall benefit or whether they will always lead to harm.

So, what I would like to examine this evening is where we are on extra territoriality, the extra territorial application of law, whether what we have done so far is helpful or harmful, beneficial or misguided, and look at what we could think of doing in this area to address some serious and urgent issues that might well benefit from extra territorial legal treatment.

Let me start by going back to basics.

Laws are enacted by sovereigns, by those who have sovereignty over their subjects, by those, to put it bluntly, who have the ability to tell others what to do and the means to enforce it.

It may not be popular in these days of protocols, guidelines, principles and codes but unless you have the ability to enforce you don’t have the ability, effectively, to legislate.

Ordinarily, therefore, you have the ability to legislate over those within your sovereign territory or over those who claim the right to have an affiliation to your sovereign territory – the quid pro quo for which is that they have to do what you say.

Put differently, and arguably more elegantly, over those within your jurisdiction.

Let me give you a more authoritative view than mine. That of the UK and Dutch governments.

“In relation to claims of a civil nature, the bases for the exercise of civil jurisdiction under international law are generally well-defined. They are principally based on territoriality and nationality. The basic principles of international law have never included civil jurisdiction for claims by foreign nationals against other foreign nationals for conduct abroad that have no sufficiently close connection with the forum State.

It is clearly established that the basis for jurisdiction is always grounded in a sufficiently close nexus to the forum State. The only exception is universal criminal jurisdiction. Accordingly, it is axiomatic that the exercise of civil jurisdiction by a State will always depend on “there being between the subject matter and the state exercising jurisdiction a sufficiently close connection to justify that State in regulating the matter and perhaps also to override any competing rights of other States.”

International law imposes the requirement of a sufficiently close nexus to the forum asserting jurisdiction, in order to minimise conflicts between States and to prevent forum shopping by plaintiffs and defendants rushing to obtain judgments in a forum that favors their own interests.”

Whilst extra territoriality has come to be viewed as an attempt to legislate over those outside your jurisdiction, that is not the original concept. The original concept was one of exception. That certain persons and objects could be within the territory of a sovereign but outside the reach of the law of that sovereign, or at least certain aspects of it. In other words, on your territory but extra territorial.

Whilst the concept was first propounded in the 17th century it was first put down on paper, at least on paper which had any legal effect, in the Act Preserving the Privileges of Ambassadors in Great Britain in 1708. That legislation paved the way for the sorts of diplomatic immunity we are all now familiar with around the world.

In common, and increasingly, legal, parlance, however, extra territoriality has come to be associated with legislative attempts by one nation to control the actions of persons, whether individual or corporate, in another nation. Jurisdiction over the legal person, individual or corporate, no matter how tenuous, and no matter how that is established, is used to seek to dictate the actions of that person within the sovereign territory of another nation.

Indeed, we are moving into a world where some think that nations should be able to dictate the actions of persons in other sovereign nations notwithstanding they have no actual, or legal, jurisdiction over those persons and to force those over whom they have jurisdiction to break the laws of other sovereign nations.

These are the issues which I would like to consider this evening. There are many aspects which I could cover and which I regularly encounter, but time dictates I use a few examples to demonstrate the broader problems.

So, I will start by looking at some misconceived extra territorial legislation, in other words at some of the attempts that are being made to impose obligations on persons to act in contravention of the laws of another sovereign nation and look at whether this legislation is actually addressing the problems which it is professing to solve. I will then go on to look at some extra territorial problems which need to be addressed now by legislation but which are not being tackled because they are in the “too difficult” box.

Before doing that I would just like to put a fairly simple proposition to you.

If somebody not from your country commits a crime against somebody not from your country in another country, i.e. not your country, should the courts in your country have any jurisdiction over the issue?

Or put more specifically, if a British security guard, employed by a British private security company, wrongfully detains, punches and injures, or even kills, a British anti-capitalist demonstrator during a riot in London, should that security guard, or the security company, be liable to be sued in the United States?

There is one piece of legislation which might be used to try. It is what has come to be known as the Alien Tort Statute. A piece of legislation passed in the 1790s after a French diplomat to the USA was insulted by another Frenchman and then had his walking cane tapped on the street by that same Frenchman.

In the last 30 years, 120 claims have been brought in the US against corporations under this statute with the average length of case exceeding five years. It is probably the most notorious piece of so called “extra territorial” legislation in existence at present and so, at the risk of boring you all, I thought I should read to you the full text of the statute.

Alien Tort Statute “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

That is it. That is all there is to it.

The view of most governments outside the US is that it doesn’t have extra territorial application. That is apparent from the quotation I just read from the UK and Dutch governments.

The US government agrees. It says “[American Courts] should not create a cause of action that challenges the actions of a foreign sovereign in its own territory, where the [sued party] is a foreign corporation of a third country that allegedly aided and abetted the foreign sovereign’s conduct.”

The views of the UK, Dutch and US governments I have read out are as expressed in their amicus briefs in the Kiobel case which is due to be heard by the US Supreme Court next Monday. Whilst there is much that could be said about extra territoriality in the context of the Alien Tort Statute and that case, I will defer to the Supreme Court on that issue and say no more on the topic of the ATS this evening.

Instead, I would like to turn to some extra territorial legislation which, in a misguided attempt to prevent a particular evil, corruption, and in an equally misguided attempt to encourage greater accountability of governments to their people, will actually succeed in encouraging the former and have no impact on the latter, but which will, in its implementation, at worst cause companies to break the law of other countries in which they operate and, at best, break the contracts they have entered into with those countries.

Financial transparency reporting

The English barrister, F.E. Smith, who later became Lord Birkenhead, Lord Chancellor of England and Winston Churchill’s closest friend, was known for his incisive wit and precision of expression. In one case, having made lengthy submissions to a judge who was clearly struggling with the complexities of the dispute he was interrupted by the judge saying: “Mr. Smith, I have listened to you now for an hour and I am afraid I am none the wiser” to which Smith immediately responded “No wiser my Lord, but much better informed”.

There is a move afoot, coming originally out of the US but which has now spread to Europe, to force companies from the extractive industries (basically oil & gas companies, mining companies and forestry companies) to publicise the amount of money they pay to governments for the right to extract  natural resources from those countries.

Why? So the people in those countries can see how much money their government is receiving for the resources it is allowing to be extracted.

Why would people want to know? Because then they can hold their governments to account for the money received. Some even say (and as I have already said, this is totally misguided) it will reduce corruption.

It all sounds both laudable and innocuous when put in this way, but, as with all legal issues, the devil is in the detail and what is being proposed won’t achieve either aim. People in those countries won’t be any the wiser as to how much money their government is receiving and corruption  won’t be reduced – if anything it will increase the potential for it.

Before I go on to explain why, it is time for a commercial break. So let me spend 30 seconds telling you about Shell.

Shell’s oil and gas production is around 3 million barrels of oil equivalent per day.

Shell, with 43,000, has more branded retail sites than McDonalds has restaurants.

And if you look out of your seat window before your next flight takes off, you might well see a Shell truck pumping jet fuel in to your plane – just one of the 7,000 aircraft we refuel at over 800 airports in 40 countries each day – one aircraft being refueled every 12 seconds.

What may be less obvious is the Shell fuel and lubricant flowing into the ships we service in more than 500 ports around the world or the almost 20 million tons of Shell chemicals that go into products we all use every day from detergents to packaging, from carpets to computers.

Shell employs around 90,000 people. But that is only our directly employed workforce. If you add the over 400,000 people working in Shell badged franchises and operations and the half a million or so contractors you will find on Shell sites, you are looking at the best part of 1 million people working for or with Shell at any one time.

If you add to that some financial information like our $1.1 billion annual spend on Research and development,  the $32 billion capital expenditure planned for this year alone and over $40 billion annual operating expenditure you might be thinking that all I am doing is bragging about our size – but let me place it properly in the global context. For all Shell’s size, the actual portion of the world’s oil and gas we produce amounts to less than 3% of global production (2.2% in 2011).

And if you add Exxon, Chevron, BP and Total to us, the so called supermajors of the oil and gas world account for no more than around 11% of what the world produces on a daily basis.

Please remember that percentage now that the commercial break is over. So, let me take you back to financial transparency legislation and explain, first, why people won’t know how much their government is receiving. This can be done in four sentences:

  1. By definition, the only corporations this legislation can apply to are companies subject to US and European jurisdiction
  2. The biggest oil and gas companies in the world are (as you now know from the commercial break) not subject to US and European jurisdiction; they are the National Oil Companies and quasi national oil companies from Russia, China, Asia Pacific, South America and the Middle East.
  3. These companies no longer operate in their own back yard, but they are not caught by this legislation and there will be no disclosure of what governments are receiving from them for extractive rights.
  4. So, the amount a government receives will not be revealed by this legislation – in fact, in many cases, just a fraction, just the tip of the iceberg, with the consequence that the less well informed in a country will be misled as to how much their government receives and the better informed will be just that – better informed, but none the wiser. 

Will it reduce corruption?  No. This time in three sentences:

  1. The legislation requires you to disclose how much you paid to the government.
  2. The last time I looked, paying money to a government is not considered corrupt under any of the applicable legislation – certainly not the Foreign Corrupt Practices Act or the UK Bribery Act.
  3. It is corruption to bribe a government official to get a contract; it is not corruption to pay a government (even over the odds) to get a contract; that’s what governments do – sell their mineral rights to the highest bidder.

What it will do, however, is cause massive competitive harm to those companies which are subject to the legislation plus create the potential for increasing corruption on the way. Let me put it this way.

You are from a country not caught by the legislation, so you and the government official that you are talking to about a concession to extract minerals, both know the following:

  1. You know what the competition are likely to bid (because they have had to publish what they bid for previous, similar, concessions);
  2. You know that what you pay will never have to be revealed
  3. You know that neither you, nor the government official, is caught by the US or European anti-corruption legislation

I leave you to draw your own conclusions on the impact on competitiveness of US and European corporations as well as on corruption.

Now, let me be clear, this is a law lecture and I am talking from the perspective of someone analysing the application of legislation generally. Lest there be any doubt I do want to reassure you that Shell is not against financial transparency reporting – quite the contrary. Earlier this year we published the total amounts we paid to most governments in 2011. We did this in advance of any mandatory requirements coming into effect in order to demonstrate our commitment to disclosure of revenues paid to governments. We believe it is important that companies like ours are open regarding how much we pay to governments and we also believe governments should be encouraged to be open about what they receive and how they spend it.

I said earlier the principle is laudable. People should know what their governments receive for rights to extract natural resources.

But they should get the full picture, and the only entity in the position to provide people with the full picture is the government.

Of course, when it comes to legislation against corporations, governments are first in the queue – but when it comes to being accountable themselves, it seems it is a different story.  They are much less enthusiastic to disclose the full amount they receive in revenues from oil and gas. Although there are some governments who do, like Nigeria and Norway, it is interesting that the proponents of this legislation, the US, and those seeking to copy it, the Member States of the European Union do not. As I say, interesting.

Nigeria and Norway are Compliant Members of the EITI –the Extractive Industries Transparency Initiative - which encourages governments to disclose and verify all amounts they receive from all entities that extract their natural resources. Shell is a founder and board member of the EITI and firmly believes that the EITI’s multi-stakeholder approach (which includes governments, NGOs, regulators, the public and companies) remains the most effective way of providing transparency regarding government revenues for resource dependent countries.

This way, the people of those countries get the full picture and not a distorted or partial one. They will be both better informed and wiser.

But that does not seem to be direction in which we are heading. Instead, we have governments which are not willing to tell the public what they receive in oil and gas revenues pushing through legislation which forces US and European companies to disclose what they are paying, not just in total to governments around the world, but for each individual project. All this in the name of transparency (which it won’t achieve) and prevention of corruption (which it won’t achieve and may encourage).

But where is the legal problem? Legislation is legislation and whether you like it or not, you have to comply.

Well, I have talked about governments not being willing to publish what revenues they receive, but there are many which go further. They either require you to enter into contractual confidentiality agreements so you won’t disclose what you are paying them, or they even make it a criminal offence to do so.

Therefore,  to comply with the legislation the US is bringing in, and the EU is proposing, means that companies have to disclose information which they are either contractually or criminally forbidden to do. To be legal in one country they have to be illegal in another.

It is not as if this hadn’t been thought about and debated with the legislators. Nevertheless, the US legislation says you must publicise and it is not a defence that to do so would be illegal in another country.

What happened to not creating a cause of action that challenges the actions of a foreign sovereign in its own territory?

Where extra territorial legislation is needed

I mentioned at the start, the ambivalent view we have of extra terrestrials. Some of them are good, but the majority are evil and bent on our destruction. And you may well be thinking that I have only one view of extraterritorial legislation – it is evil and bent on our destruction. So let me hasten to reassure you that is not the case. Quite the reverse, in fact. Extra territorial legislation can be a real force for good, but it has to be directed in the right way and targeted at the real extra territorial problems the world faces today.

I am going to look at a couple of examples where extra territorial legislation is urgently needed but first, by way of introduction, let me take you back to another TV programme that focused on extra terrestrials – Star Trek. I am sure most of us can clearly remember the opening lines of every episode – “Space – the final frontier. These are the voyages of the Starship Enterprise, to boldly go…. and split infinitives….. where no man has gone before.”

But so far as the law is concerned, there is no need to go extra terrestrial to deal with final frontiers, there are two frontiers that need dealing with here on earth, that are really crying out for extra territorial legislation. Extra territorial in a real sense – beyond the territory of any sovereign nation. The first of those frontiers has been around for a long time but now has a problem that we all thought had gone away without the need for extraterritorial law.  That problem has, however, come back with a vengeance and urgently needs a legal solution. The frontier in question is the high seas and the problem is piracy.

Piracy

In an article in 2008 in the Wall Street Journal entitled “Why don’t we hang Pirates anymore”  the columnist said:

“By  the 18th century, pirates knew exactly where they stood in relation to the law. A legal dictionary of the day spelled it out: "A piracy attempted on the Ocean, if the Pirates are overcome, the Takers may immediately inflict a Punishment by hanging them up at the Main-yard End; though this is understood where no legal judgment may be obtained."

The article continued:

“Severe as the penalty may now seem (albeit necessary, since captured pirates were too dangerous to keep aboard on lengthy sea voyages), it succeeded in mostly eliminating piracy by the late 19th century -- a civilisational achievement no less great than the elimination of smallpox a century later.”

Of course, we don’t hang pirates  any more – and I hasten to add I am not advocating that we should. But the fact of the matter is, today, no one really has a clue what to do with them.

There is no international body empowered to try pirates and imprison them and nobody wants to take pirates captive and take them back home because you cannot try them unless the vessel subject to the pirate attack was under the flag of your nation . Not surprisingly trying pirates is not the sort of growth industry that flag countries like Panama, Bermuda and the Marshall Islands are wanting to rush into.

Jurisdiction is the issue and  the  problem with piracy is that, by definition, it has to happen on the high seas (in other words outside any state’s jurisdiction) and if you can’t hang them, you can’t imprison them and you can’t take them back to shore you have a real problem. Not just a practical problem but a legal one.

But why should I, as Legal Director of an energy company, be concerned about this?

Oil, oil products, petro-chemicals and LNG are shipped around the world and with Africa sitting between Europe and the Middle East and Asia there is very little choice but to go either through the Suez canal, down the Red Sea and out into the Indian Ocean or down the west coast of Africa. In 2010 and 2011 there were roughly 15 pirate attacks each month on vessels in the Indian Ocean, or on transit there, of which about one-fifth were successful. Attacks off the coast of West Africa ran at about seven per month in those two years.

What can we do to resolve the problem?

You are probably familiar with the old story of the two men walking down a trail in the woods who meet a bear. One looks to the other and says “What should we do?” To which the other responds “Run!”. “Don’t be ridiculous,” says his companion, “We can’t run faster than a bear”. To which his companion replies as he sets off at full pace  back down the trail “No, but I can run faster than you”.

That is a bit like it is with pirates. The slow oil tankers and LNG vessels cannot run faster than the pirates, so they have to make themselves harder to attack than the next boat. That was all well and good when all that involved was higher seaboards, putting razor wire round the boat or having water cannon, but when some of the vessels starting carrying armed soldiers or guards then a whole different set of legal considerations come into play.

What legal considerations apply to arming vessels? What is the attitude of the nations under whose flag these vessels sail? What liabilities will they incur if a fatality occurs during a pirate attack? What is the attitude of the vessels’ insurers? Are the insurance provisions violated? Will it mean they can deny insurance claims?

What will the attitude be of the countries of which the armed guards are citizens if they are killed or if they kill or injure someone? And what if that someone isn’t a pirate but an innocent bystander such as a crew member caught in cross-fire or a passing fisherman?

To what extent can getting consent from the flag country and insurers give you some protection? To what extent can drawing up detailed rules of engagement for armed guards provide safeguards if there are subsequent injuries or fatalities?

Where can criminal charges be brought? Which countries will have jurisdiction over civil claims?

I have just asked a dozen legal questions there, to which there are no definitive answers.

Given these, and the many other imponderables involved, what advice would you give when the question arises: others are arming their ships what should we do? How do we fulfill any duty of care we may have to the crews of our vessels? Are we in breach if we don’t arm; do we put them in more danger if we do?

These are no longer hypothetical questions. These are real, global legal issues. By way of illustration, let me mention four incidents that have taken place this year.

In the first, two Indian fisherman were killed by Italian navy personnel on duty on an Italian flagged oil tanker as the vessel was sailing along the Indian coast. It appears they mistook them for pirates and shot them dead.

India arrested the two Italian marines. In response, Italy accused India of breaching its territorial jurisdiction by arresting the marines in international waters.

On 24 April Italy announced that it had paid $380,000 to the families of two Indian fishermen and that this was a gesture of goodwill and not an admission of responsibility for the deaths.  In response, the relatives of the dead fishermen have agreed to withdraw their cases against the marines, but the Indian state involved has not dropped its own charges against the two men and they are still awaiting prosecution in India.

The second incident involves the Danes, once known as a marauding, pillaging and piratical nation themselves.

It seems these days, however, the Danes are taking the fight to the pirates. Again, however the myriad complications I have already outlined are raising serious legal issues.

In February, Danish Naval Forces opened fire on a suspected pirate ship when it refused to stop. Two hostages being held by the pirates were killed. It appears they were killed by the pirates, but would they have been killed if the Danes had not attacked? The consequences that will flow from this incident remain to be seen.

The same Danish warship, the Absalon, stopped another pirate ship in early April. No one was killed or injured but the report on the incident from Reuters said:

“…the suspected pirates will remain held aboard the Absalon until Denmark determines if it can hand the pirates over to a country in the region for prosecution.”

The report continued to highlight some of the issues I have already mentioned:

“Although anti-piracy operations have succeeded in reducing the numbers of vessels and hostages taken in the past few years, efforts to stamp out piracy are hampered by the unwillingness of many countries to prosecute captured pirates in their courts.

The problem of finding courts to try pirates stems partly from a lack of a functioning judicial system and prisons in Somalia, but also reluctance by other countries to receive captured pirates.

Most European countries, including Denmark, have been unwilling to bring suspects from east Africa to their jails and courts, which means navies engaged in anti-piracy missions often must release captured pirates without prosecution.”

The problem is not going away or getting any easier. On 4 August 2012 an oil services vessel was attacked 60km off the coast of Nigeria, two Nigerian naval personnel were killed and four crew members (of Malaysian, Iranian, Thai and Indonesian nationality) were abducted. Jurisdictional issues multiplied by four.

At the last count, as a result of piracy in the Indian Ocean and the Gulf of Guinea there were 11 vessels and 206 hostages being held with average crew ransoms running at $5.4 million with a maximum reached this year of $13 million.

Hanging pirates eliminated them last time round but shooting them is not the solution this time. We desperately need some effective, enforceable, extra territorial legislation.

My second and final example of where we desperately need extra territorial legislation is one where there is a proliferation of domestic national legislation but the problem with nations is that we are all different. There is no uniformity of approach.

Cybercrime

Financial Times – 31 August 2012 -

“Qatar’s RasGas, one of the world’s largest producers of natural gas, has become the second major state-owned Middle East energy company to be hit by a severe computer virus in weeks.

The disruption came after Saudi Aramco, the government-backed company that is the world’s largest crude oil producer, was also attacked by a computer virus.

Saudi Aramco said in a statement on Sunday that it has restored its “main internal network services” after the attack on August 15. But oil traders in Houston, Geneva and London on Thursday said they were communicating with Aramco’s counterpart by fax and telex, as the company’s external email services were still down.

“It’s like going back 20 years in time,” a trader said about the use of the telex.

Aramco on Thursday said it had “restricted” access to some external systems as a precaution, and referred to its previous statement issued on Sunday.

The rare pair of attacks has caused concerns among energy traders and Western diplomats, as they are the first known cyber assaults targeting Middle East companies that are key to the world’s oil and natural gas supplies.

Cyber attacks have grown in prevalence in the Middle East, particularly during the last 18 months of political unrest in the region. Iran has accused the US and Israel of attacking its atomic programme with two sophisticated viruses, dubbed Stuxnet and Flame, that infected computers at several nuclear plants. Tehran earlier this year also said the computers of its national oil company had been attacked.”

These attacks are manifestations of what has been termed cybercrime.

There is no precise definition of cybercrime but, fundamentally it encompasses illegal activities utilising the internet.

Though cybercrime encompasses a broad range of illegal activities, it can be generally divided into five categories:

Intrusive Offences, which include hacking, data espionage and data interference;

Content-related offences, including pornography, propaganda for things such as racism and spam;

Copyright and trademark-related offences such as piracy of software, music or movies;

Computer-related offences which include identity theft and credit card fraud; and so-called

Combination offences encompassing such things as cyberterrorism and cyberlaundering.

So, with so much crime going on in this other extra territorial area, cyberspace, you would think that the powers that be in this world would do something about it. The fact of the matter, however, is that whilst there are some very strong national laws, there is nothing joined up, which means enforcement, in particular is a real issue.

Let me mention just one example to make the point. It involves two individuals, Reomel Ramores and Onel de Guzman. They wrote a computer virus called the ILOVEYOU bug. There was nothing loving about this virus as it caused an estimated $5.5 billion worth of damage causing even the Pentagon and the CIA to close down their computers to exterminate the bug. However, although Ramores and de Guzman were arrested in the Philippines they had to be released as there was no legislation criminalising the writing of malware in the Philippines.

As you can see, some countries take this more seriously than others, but even in countries which do take cybercrime seriously, resources can be a real issue.

Time to bring in the United Nations or some other multi-government organisation, I hear you cry – and you would be right. But the problem is that whilst many inter-governmental organisations are aware of the issue, the focus seems to be on talk rather than action.

The UN Congress on Crime Prevention and Criminal Justice in April 2010, in what has been described as an important breakthrough, Member States agreed to explore ways of universal regulation to counter cyber-crime. A UN Resolution was adopted. What did it propose by way of action?

It made a proposal to establish “an open-ended intergovernmental expert group to conduct a comprehensive study of the problem of cybercrime and responses to it by the Member States, the international community and the private sector, including the exchange of information on national legislation, best practices, technical assistance and international cooperation, with the view to examining options to strengthen existing and to propose new national and international legal or other responses to cybercrime.”

Talk not action.

And what did another multi-partite body, the Organisation of American Sates do in recognition of this resolution? Well, in February 2012 they called upon the member states to respond to the questionnaire that will be distributed by the open-ended intergovernmental expert group on cybercrime, convened pursuant to United Nations General Assembly resolution.

Two years after the UN Resolution and we are still talking about filling in questionnaires.

You may surprised to hear that there does actually exist a European Convention on Cybercrime which was co-drafted in 2001 by the Council of Europe together with the US, Canada and Japan. However, although it was signed by all 46 member states there are still a significant number of countries which have not ratified it – and the UK is one of them.

We really do need action and not just words and questionnaires.

As Kofi Annan said “in the prospect of an international criminal court lies the promise of universal justice”, but without an international court or tribunal properly empowered to deal with cybercrime the problems and the criminals will simply proliferate.

Conclusion

It is these real and urgent extra territorial problems that should be the focus of government legislation and which could enable governments to be a real force for good, rather than focusing on ineffective legislation such as the financial transparency legislation which meets short term political aims but not the long term interests of people in resource rich states. Real global leadership is needed in the area of extra territoriality, leadership with a view to creating structures to enforce the rule of law for generations to come rather than with a view to winning the next election.

I said at the beginning that to legislate effectively you need the ability to enforce and in conclusion I would add that you should be able to enforce without infringing the sovereign rights of other nations to control what happens within their jurisdictions and with their people.

Careful thought has to be given to the impact of any form of legislation which has extra territorial effect.

As I also said at the start, like extra terrestrials, there is equivocation as to whether extra territorial legislation is a force for good or evil. Whether these are powers that can be used for overall benefit or whether they will always lead to harm.

There are clearly extra territorial areas, true extra territorial areas, (piracy and cybercrime are but two) where much good could be done by governments cooperating to produce effective means of enforcing, extra territorially, the rule of law. In such cases extra territorial legislation can be the force for good.

ET – extra territorial legislation - can be the friend rather than the alien. But If we are not careful we can end up passing legislation which is not a force for good – which is alien rather than friend - and the problem is, it may take us rather a long time to realise the real effects of some of this legislation – to realise it is alien. And as someone memorably said:

“If you can see the aliens in the UFO, it's already too late.”