Extraterritoriality and the Rule of Law

Abstract

This paper will focus on state responsibility. In particular, it will focus on the obligation of states under Principle 2 of the Rio Declaration 1992 “to ensure that activities within their jurisdiction or control do not cause damage to the environment of … areas beyond the limits of national jurisdiction”. The ideal of legal equality, or the universal application of the law to all persons (natural and juridical) by the ordinary courts is a key ingredient of the Rule of Law. This paper will therefore argue that extraterritorial legislation should be used by states to control the activities of non-state actors (e.g. citizens, permanent residents, and registered aircraft, companies, and ships) as a universal mechanism for preventing damage to the global environment generally - and areas beyond the limits of national jurisdiction (such as the Polar regions) in particular. To address this central question the paper will critically examine and interrogate the legal and theoretical basis for extraterritorial legislation from the perspectives of constitutional law, criminal law, environmental law, and international law.