The need for a structured approach to extradition between China and New Zealand

<p>New Zealand will increasingly be confronted with human rights issues arising from the extradition of individuals to China due to perceived inadequacies in China’s criminal justice system and the practice of using force to extract confessions by China’s law enforcement agencies. This thesis examines the failings of New Zealand’s current ad hoc extradition system with its reliance on diplomatic assurances to guarantee fair trial rights and protection against torture for individuals extradited to China. Due to these inadequacies it is possible that the only way in which New Zealand can fulfil its obligations under the United Nations Convention against Corruption in cases involving corruption is for New Zealand to exercise its extraterritorial jurisdiction as an alternative to extradition. The Law Commission’s approach in its 2016 report recommending changes to the Extradition Act 1999 fails to comprehend the essential role bilateral treaties are likely to play in terms of New Zealand’s extradition relationships with countries such as China in the future. It is argued that a more structured approach is needed by concluding a legally binding treaty with China that provides for specific human rights guarantees and a monitoring regime. This treaty should also allow either state party to offer to try an individual sought for extradition by exercising the requested party’s extraterritorial jurisdiction as an alternative to extradition. Furthermore, consideration should be given to expanding the scope of New Zealand’s extraterritorial criminal jurisdiction in cases involving individuals requested for extradition under the treaty.</p>

The need for a structured approach to extradition between China and New Zealand

<p>New Zealand will increasingly be confronted with human rights issues arising from the extradition of individuals to China due to perceived inadequacies in China’s criminal justice system and the practice of using force to extract confessions by China’s law enforcement agencies. This thesis examines the failings of New Zealand’s current ad hoc extradition system with its reliance on diplomatic assurances to guarantee fair trial rights and protection against torture for individuals extradited to China. Due to these inadequacies it is possible that the only way in which New Zealand can fulfil its obligations under the United Nations Convention against Corruption in cases involving corruption is for New Zealand to exercise its extraterritorial jurisdiction as an alternative to extradition. The Law Commission’s approach in its 2016 report recommending changes to the Extradition Act 1999 fails to comprehend the essential role bilateral treaties are likely to play in terms of New Zealand’s extradition relationships with countries such as China in the future. It is argued that a more structured approach is needed by concluding a legally binding treaty with China that provides for specific human rights guarantees and a monitoring regime. This treaty should also allow either state party to offer to try an individual sought for extradition by exercising the requested party’s extraterritorial jurisdiction as an alternative to extradition. Furthermore, consideration should be given to expanding the scope of New Zealand’s extraterritorial criminal jurisdiction in cases involving individuals requested for extradition under the treaty.</p>

The international law of jurisdiction: A TWAIL perspective

The concept of jurisdiction is a relatively undertheorized category of international law. Mainstream international law scholarship advances an ahistorical and asocial account of the rules of jurisdiction in international law. The present article contends that any serious understanding of the categories and rules of jurisdiction, in particular that of extraterritorial jurisdiction, calls for deep appreciation of the evolving material structures over time. It argues that the key factors that have influenced the evolution and development of the doctrine, rules, and practices of jurisdiction are the emergence of the modern state, capitalism, and imperialism. In order to appreciate this contention there is a need to undertake on the one hand a genealogical analysis of modern state and capitalism and on the other hand problematize the categories ‘territory’ and ‘extraterritorial’. The internal relationship between capitalism and imperialism has meant that, despite the territorial organization of the international system, a process of harmonization of legal rules has taken place across geographical spaces in both colonial and postcolonial eras. The outcome is a critical loss of policy and legal space for nations of the Global South. In the colonial era the outcome was achieved through legislation in the instance of colonized nations and through capitulation regimes in the case of semi-colonies. The strategy of advanced capitalist states in the postcolonial era for achieving harmonization of laws has been multi-layered and multi-dimensional. The article concludes by touching on two models of reform of the rules and practices of jurisdiction viz., liberal and subaltern internationalism.

Tracing Professor Fox in South Africa’s Competition Jurisprudence

This chapter identifies several locations where one might look to trace how Professor Eleanor Fox has contributed to the South African competition regime. Choosing one of those, her contributions to its published jurisprudence, we survey decisions of the competition authorities to find those referring to Professor Fox and her work. Those decisions include ones in the areas of extraterritorial jurisdiction and anticompetitive exclusionary practices. Discussing several prominent cases in those areas, we observe that Professor Fox has been part of the debates within South African jurisprudence from their beginnings, and that her work is considered highly and cited effectively as authority in itself. We argue that, while she has never held the formal position of a litigant or an adjudicator, South Africa’s competition regime is the richer for Professor Fox’s participation and engagement.

Limits on the Extraterritoriality of United States Export Control and Sanctions Legislation

The sovereignty of states is reflected in the notion of jurisdiction, empowering them to enact and enforce laws and regulations, and to adjudicate disputes in court. The jurisdiction of states and the exercise thereof is primarily territorial, limiting the exercise of state authority to their respective national territories except in specific situations. However, in an increasingly globalized and interconnected world, it would be hard to maintain that a state should be denied the right to exercise its sovereign powers beyond national borders when there are reasonable grounds for doing so. Consequently, the exercise of extraterritorial legislative jurisdiction has become more accepted, although it is limited to particular situations and circumstances. These have to do with the exercise of jurisdiction over nationals, vessels and aircraft registered in or pertaining to the legislating state, as well as certain activities aimed at undermining the state’s security or solvency or which constitute crimes under international law. However, in principle it is not allowed to regulate activities of foreign nationals or entities operating wholly outside the legislating state’s territory. One area where this has become increasingly prevalent is through the exercise of export controls over foreign nationals and legal persons. The United States (US) has long been engaged in the exercise of this type of extraterritorial jurisdiction and is, without doubt, the state that is most proactive in doing so. This chapter considers US extraterritorial claims with respect to its export control and sanctions legislation and explores the limits of this practice under public international law.

The Inter-American Court of Human Rights Advisory Opinion OC-23/17 on the Relationship between Human Rights and the Environment

On 15 November 2017, the Inter-American Court of Human Rights issued an advisory opinion OC-23/17 on the relationship between human rights and the environment. The opinion responded to a request made by Colombia pursuant to Article 64(1) of the American Convention on Human Rights regarding extraterritorial jurisdiction of state parties to the Convention resulting from mega-infrastructure projects in the Greater Caribbean region. The purpose of this article is to discuss the general issues dealt with by the Court, concentrating on the significance of this Advisory Opinion for international law. The opinion contains two main interesting aspects. First, in the light of the opinion, states are responsible for the environmental damage they cause, regardless of whether it occurs within their borders or beyond them. Second, the Advisory Opinion recognizes that the right to a healthy environment is an autonomous, fundamental human right that shall be protected.

A new criminal jurisdiction to combat cross-border money laundering

Purpose The purpose of this study is to analyze the emergence of the changing face of criminal jurisdiction in dealing with cross-border money laundering that develops dynamically due to the development of globalization. Design/methodology/approach This research was a doctrinal legal research using conceptual approach concerning the very strict principle of territorial jurisdiction in criminal law. This study also used case approach related to the application of extraterritorial jurisdiction and long-arm jurisdiction in some cross-border money laundering cases. The collection of legal materials was carried out through literature as well as case study and was analyzed qualitatively based on data reduction, presentation and concluding. Findings This study revealed that territorial jurisdiction which was originally strictly enforced by state sovereignty over crimes that occurred in its territory then changed widely with multi-territorial perspective. Because of its condition, the state then expands its authority to deal with money laundering as a cross-border crime involving more than one territorial state, namely, by using extraterritorial jurisdiction and then developed into a long-arm jurisdiction trend that allows state authorities to prosecute foreigners outside its state boundaries. Originality/value The research finding can be used as one of the alternatives by countries to break the territorial jurisdiction in combating the cross-border money laundering.

Transnational by Default: Online Child Sexual Abuse Respects No Borders

Combatting child sexual abuse on the internet requires a high level of harmonisation of both substantive and procedural laws, as online child sexual abuse is transnational by default: while the transnational nature of child sexual abuse material used to be the exception before the advent of the internet, it is now the rule. In order to prosecute and investigate online child sexual abuse across country borders, states rely heavily on extraterritorial jurisdiction clauses as well as informal and formal law enforcement collaboration channels. This paper analyses existing channels in the opsc, Budapest Convention and Lanzarote Convention, particularly against the background of the recently published crc Committee Guidelines regarding the implementation of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (crc/c/156), and provides for concrete guidance on how to ensure that the best interests of the child in the prosecution and investigation of transnational crimes such as online child sexual abuse is the primary consideration.

6. Sovereignty and jurisdiction

This chapter briefly looks at the nature of sovereignty and its parameters in international law, but essentially focuses on the function and nature of jurisdiction. It first examines the breadth of the space in which sovereignty is exercised; namely, land, sea, and air. Thereafter, it assesses territorial jurisdiction (in both its objective and subjective dimensions) and examines the practice of the four extraterritorial principles of jurisdiction; namely, nationality-based, the protective principle, passive personality, and universal jurisdiction. The chapter then considers instances where national courts refuse to exercise their ordinary jurisdiction, namely, instances where the accused is covered by the privilege of immunity or because his or her arrest was illegal. Finally, it looks at the US practice of extraterritorial jurisdiction, whereby sometimes the sovereignty of other nations has been breached.