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.