Can all countries freely determine what's considered to be their legal jurisdiction?

Question

Can all countries freely determine what's considered to be their legal jurisdiction?

Here's another little example of the way that the U.S. is extending its legal system in various extraterritorial manners. The U.S. has today announced that it is fining Alstom, a French company, for actions and behavior that didn't take place in the U.S. Sure, the U.S. has laws against bribing foreign government officials to gain business contracts. But it's a bit odd that a French company, bribing people not in America, gets caught in such a net.

https://www.forbes.com/sites/timworstall/2014/12/22/isnt-it-strange-that-the-us-gets-to-fine-alstom-a-french-company-for-bribery-not-in-the-us/?sh=1c363e5beb36

I thought this decision to punish a non-U.S. citizen means that any country can choose to prosecute anyone for any reason and arrest them as soon as they land in a country where they can arrest them, because there's no international court in my knowledge for covering these cases, and if the U.S. were never punished, it means no one may get punished if they're strong enough to do so. Is this the case?

Answer 1

This is a matter of both practical and theoretical law.

In theory, a sovereign state can choose its own laws by its own internal procedures. A sovereign state can therefore pass laws that criminalise actions taken in foreign countries, and in principle actions taken in foreign countries by foreigners against foreigners.

But so what? Suppose the UK decides that "child rape" is such a horrid crime that anybody who rapes a child anywhere in the world is guilty of an offence. That would not in practice permit the UK police to enter the USA and arrest suspected child rapists.

I choose this example because the law in the UK "Anyone who commits an offence against children abroad will face the prospect of prosecution for the same offence here even though it may not have been offence in that country." (Home Office Minister Vernon Coaker). But in practice that means they may be arrested on their return to the UK.

You state "as soon as they land in a country where they can arrest them". That is correct. However, the only country where the UK police can arrest people is the UK. Even though someone has broken UK law by abusing a child in a foreign country, there cannot practically be arrested until they land in the UK. In practice this power is only used when there is no prospect of arrest or conviction in the foreign country and only against people who have entered the UK.

In the Alscom case, it does seem odd to prosecute a French company for actions undertaken outside the US. However, Alscom seeks to operate in the USA, and in doing so, it chooses to put itself under US jurisdiction. It would be equally odd if a business could, merely by relocation of a central office, evade the law. Or if a French company doing business in the USA could steal an advantage over its American competitors by the use of bribery.

So. Yes, a country could prosecute anyone for any reason, and arrest them as soon as they enter the country. In practice, this power is only used by responsible powers for the most heinous of crimes, and only when local jurisdictions seem unable to criminalise the behaviour.

Answer 2

Can all countries freely determine what's considered to be their legal jurisdiction?

Countries are sovereign states. It basically means that, at the baseline, there is no one to dictate them what (not) to do. In other words, a country's freedom to do anything it wants is limited only by other countries' practical power to limit it.

Countries may and do come to agreements with other countries but, again, a country's ability to renegade is limited by nothing but the other countries' practical power to motivate it to refrain from renegading.

So, getting down to the concrete example in the question: if the US wants to assert jurisdiction over what a foreign company does outside the US, who's got the balls to say no?

Answer 3

International law, for the major part is something defined in many treaties, each of them having a limited scope, for the rest it is a set of principles and accepted conventions that are in place as long as the individual countries are willing to enforce them. For what matters jurisdiction there are bilateral treaties about extradition and bilateral treaties about collaboration among police and intelligence forces, plus other treaties, but there are still some aspects that depend on the power of a country on the international stage (economical and political power) and the capacity to enforce unilateral decision. So the case here is more a practical matter than a matter of principle.

The US has many hooks that allow them to enforce their unilateral approach on Jurisdiction.

• The modern supply chain is spread among many different countries. The US supply many basic, high tech components and they often forbid the supply of their components to certain countries. If a foreign company violates the prohibition they may try to arrest their managers when they travel through willing to enforce US laws or they may simply forbid to supply new components to the company disrupting their supply chain. For another example you can make an internet search with the keywords airbus iran air order.
• The US market itself. Another law applied by US is that if a company has a branch in the US must comply with the US laws. For example almost all the banks in the Western world have a branch in the US and they are obliged to monitor and notify all the transactions involving countries in the American list of Sponsors of Terrorism. The bureaucratic requirements are so severe that many banks simply refrain from trading with those countries.
• Repercussions on the international markets. A company refusing to comply with US laws can be targeted in such a way that it may lose not only suppliers, but also customers. This may not stop Russian companies selling oil and gas to China or India, but a company like Alstom has a lot to lose. That is why many Western companies refuse to do business with Cuba even though no other country legally supports the American sanctions.

Obviously pressure behind closed doors is part of the story, but I did not add it to the points because we have no information about it.

So, the actual answer to your question is that countries "can" freely determine what they consider their legal jurisdiction, but then what really matters is if they can enforce it.