Domestic Responses to Transnational Crime: The Limits of National Law

• Published in: Criminal law forum 2012-12, Vol.23 (4), p.275-293
• Main Author: Parrish, Austen L.
• Format: Article
• Language: English
• Subjects: Comparative Law; Crime; Criminal justice; Criminal Law and Criminal Procedure Law; Indexing in process; International & Foreign Law; International crime; International Economics; International law; Law; Law and Criminology; Lawyers; Multilateralism; Perpetrators; Private International Law; Public International Law; Sovereignty; Victims
• ISSN: 1046-8374; 1572-9850
• DOI: 10.1007/s10609-012-9185-1

The growth of transnational crime has given rise to an increased use of national laws to respond to this criminal activity. International lawyers and scholars routinely make two claims with regard to this trend. First, they assume that the increased use of extraterritorial domestic law is unavoidable and second, they assert that the trend is not merely inevitable, but also desirable. This essay pushes back on these understandings. While globalized crime requires a response, no compelling reason exists for why that response should be unilateral and domestic in nature, rather than multilateral and collaborative. Extraterritorial national laws are more problematic than commonly assumed. They often detract from, and can even undermine, more comprehensive, meaningful, multilateral efforts. And they risk shifting the focus away from the perpetrators and their victims, to the prosecutorial response and whether that response is legitimate and legal. It would be wise for extraterritoriality to remain exceptional, as once reflected in the foundational principles of an international system that respects and promotes territorial sovereignty. Extraterritorial laws should be used hesitantly, and not as a substitute for meaningful multilateralism.