A.  Concept

1  The term ‘protective principle’ (Staatsschutzprinzip) is generally used to denote the principle of international criminal jurisdiction permitting a State to grant extraterritorial effect to legislation criminalizing conduct damaging to national security or other central State interests (Criminal Jurisdiction of States under International Law; Extraterritoriality). The raison d’être of the protective principle is the fact that State A cannot rely upon State B to protect A’s vital interests, or to protect them to the extent which A considers to be necessary or desirable. In most States, there is a category of offences which are nationally limited with respect to the interest protected by the offence, ie which criminalize certain conduct, but only when it is committed against the interests of the State criminalizing it. This category includes security crimes, but, depending on how they are formulated in the national law in question, also such offences as assaulting a police or customs officer, corrupting a government official, damaging government property, smuggling, etc (see also Corruption, Fight against).

2  State A cannot be sure that equivalent offences in B’s law will cover all acts against A’s State interests or, if they do, that these acts are punishable by sufficiently (according to A) serious penalties. This fundamental fact remains true, notwithstanding the growth of customary and treaty-based duties on States to criminalize certain types of activities damaging to the interests of other States, and notwithstanding the growing number of offences seen as being against all States’ interests for which there is universal criminal jurisdiction.

B.  Theories and State Practice

3  Although cases can certainly be found earlier of prosecutions of foreigners for crimes committed abroad against the ruler, it is only when the nation-State could be said to have properly emerged, and to have obtained an existence separate from that of the ruler, that one can meaningfully begin to employ the protective principle as an explanation of certain types of claims to extraterritorial criminal jurisdiction. The first modern example can be found in the French Code of Criminal Procedure of 1808, Arts 5 and 6 of which took jurisdiction over foreigners who committed crimes against the security of the State or counterfeited the seal of the State, or national currency. There was an obvious need to take jurisdiction over serious crimes by exiles and foreigners against revolutionary France in countries which were indifferent, or even hostile, to French interests. The French example was followed by a number of other European States, and this form of jurisdictional claim was well-established by the end of the 19^th century. The UK and the US were, for reasons of geography and legal culture, more sceptical towards extraterritorial jurisdictional claims, but even these States came to accept relatively quickly that other States could make claims to protective jurisdiction on the basis that every State had the right to defend itself from attacks against its central interests.

4  The protective principle entitles a State to assert prescriptive jurisdiction (criminalizing conduct). A State’s exercise of enforcement jurisdiction in criminal law (ie prosecution, trial, and punishment) is limited to its own territory in the absence of a permissive treaty or customary rule to the contrary (see also Governmental Activities on Foreign Territory; Lotus, The). This means that, in practice, a State’s power to punish offenders is limited to where these can be found in its territory or transferred there (Extradition).

5  The protective principle is one of six extraterritorial principles which are used as complements to the principle of territoriality, the others being active personality (crimes by nationals), passive personality (crimes against nationals), universality (crimes against universal State interests), flag principle (crimes on board State registered ships or aircraft), and representation/distribution of competence (under which a State acts on behalf of another State in prosecuting an offender present upon its territory; see also General International Law [Principles, Rules and Standards]; Flag of Ships). International law requires some form of jurisdictional linking point, or nexus, between the offender and the State. This nexus generally speaking (though not necessarily always) finds expression in the principles of jurisdiction (Jurisdiction of States). An unreasonable assertion of jurisdiction can violate the principle of non-intervention (Intervention, Prohibition of; Use of Force, Prohibition of). The principles can also have an important descriptive function, constituting a common language, albeit rudimentary, and allowing different systems of jurisdiction to be analysed and compared.

6  The principles are not formally speaking arranged in a hierarchy, but the protective principle applies regardless of the law of the place of commission (lex locus delictus) and whether or not the offence has been, or is being, dealt with by the prosecuting or judicial authorities in the locus delictus.

7  The principles of jurisdiction are overlapping and interdependent. The scope a State chooses to grant to a particular principle depends upon the scope it has granted to the other principles. Even when two States have similar types of crime problems, the way in which they will choose to rely upon and combine principles of jurisdiction, and thereby to construct their systems of jurisdiction, will depend upon differing legal traditions and drafting techniques. Moreover, variations are caused by the speed at which States react to new forms of international criminality and alter their jurisdictional claims accordingly (Transnational Organized Crime). Thus, even where two States employ the same principles to construct their systems of jurisdiction, the end-results can vary considerably.

8  The relationship between the principle of territoriality and the protective principle is simple: the more crime which can be localized to the territory of a State, the less need there is for that State to rely upon the protective principle, or any other principle of extraterritorial jurisdiction, to take jurisdiction over it. During the 20^th century, the practice in many States has been to expand the scope of the principle of territoriality to encompass an offence if any (significant) component part of it has occurred within the territory of the State (called the ‘principle of ubiquity’ in European States). Depending on national criminal law doctrines, inchoate offences (attempts, preparation, conspiracy) may also be capable of being localized to the territory of the State asserting jurisdiction. Over-localization strains the conceptual framework of the criminal law, as well as undermining whatever procedural safeguards may have been created for the prosecution of extraterritorial crime. For these reasons, there is controversy over how far this can be stretched, in particular as regards the ‘effect’ of an offence: should it be limited to a component part of the crime as defined by statute or can it extend to more or less indirect consequences of the crime? Outside antitrust/competition law and related administrative fields (Antitrust or Competition Law, International), there is little or no support in the practice of States other than the US for interpreting ‘effects’ broadly to extend to all and any indirect consequences of an offence in the territory of the State claiming jurisdiction. Although some US doctrine, including the influential Restatement of the Law Fourth, of the Foreign Relations Law of the US, regards the protective principle as a form of special application of the ‘effects’ principle in the US, the better view is to see the latter as a principle of localization, and limited, in criminal law matters, to situations where a component part of the offence occurs on the territory. In most States other than the US, the protective principle will still be necessary to get at such acts which might not be able to be localized under national doctrines of localization, but which are nonetheless regarded as posing special threats to State interests.

9  Another link between the principle of territoriality and the protective principle is where a person commits an offence against a State’s customs, fiscal, radio licensing, immigration or sanitary laws and regulations on a vessel situated in its maritime contiguous zone (see also Broadcasting, International Regulation). There is a similar right under the law of the sea to enact and enforce criminal legislation for the protection of certain limited interests in the exclusive economic zone (see also Maritime Jurisdiction). The coastal zones in question retain their residual status as high seas (ie they are not part of the territory of the coastal State), and only a restricted category of interest may be protected within them. The exercise of jurisdiction in these zones can thus be seen as a hybrid form; protective/quasi-territorial. The same can be said for the right which some States, notably the US, assert to punish violations of their air flight regulations in security zones over the high seas.

10  The active personality principle is universally accepted and even those States which do not exercise this generally, tend to do so as regards crimes by diplomats or by members of the armed forces (see also Immunity, Diplomatic; Members of the Staff of Diplomatic Missions). It might therefore be thought that States need only resort to the protective principle to assert jurisdiction over the extraterritorial crimes of non-nationals. This is true for some States. However, other States may place limits on the type of offence for which active personality jurisdiction is exercised, eg only offences punishable by a minimum prison sentence. The protective principle might therefore be used to catch minor offences directed against State interests committed by nationals. Moreover, a number of States, especially States influenced by Germanic doctrine, exercise ‘conditional’ active personality in concreto, meaning that it is necessary to show that, on the facts of the case in question, the act is punishable under the law of the place of commission (‘double criminality’), that there are no circumstances under which the foreign law would justify the actor’s conduct (eg self-defence) and no other impediments to his prosecution. In addition, such States often also have a rule forbidding the imposition of a heavier penalty than that provided for in the lex locus delictus (a lex mitior rule). These States now consider that, as their citizens now travel abroad in great numbers, sometimes to very different cultures, then, unless there are particular reasons for insisting that their citizens follow national standards of conduct abroad, they should not be punished for doing an act which was free from punishment in the place of its commission. Moreover, there is a practical argument: the State of the place of commission of the act is unlikely to cooperate in gathering evidence against the accused, evidence which will usually be vital to secure a conviction, unless the act is regarded as criminal there too (Mutual Legal Assistance in Criminal Matters). States making a general rule of conditional active personality jurisdiction thus need to make exceptions to this even for nationals for offences which are nationally limited with regard to the protected interest, and in these States, the protective principle applies even to nationals (see eg § 5 German Criminal Code; Chapter Two Sec. 3 Swedish Criminal Code).

11  As regards the relationship between the passive personality and protective principles, the conceptual distinction is clear: the former protects the interests of citizens (natural and legal persons), the latter, the interests of the State. During the 19^th century, a number of States began to assert both forms of jurisdiction, and did not distinguish clearly between them (eg Art. 6 Italian Penal Code 1895). Unconditional passive personality claims risk leading to conflicts between States, and this, combined with a greater degree of mutual trust between States, at least as far as the prosecution of ordinary crimes is concerned, operates to restrict such claims. Since the 1970s, however, a new link has emerged between the two principles in that a crime, particularly a terrorist crime, can be directed against a national because of their nationality. A claim to exercise jurisdiction over such an extraterritorial crime can be described as based on a hybrid form of protective/passive personality principle jurisdiction. Examples of such jurisdiction can be found in Art. 694 (1) French Code of Criminal Procedure and Title 18, Section 2331 US Code, paradoxically both States which had previously regarded the passive personality principle as controversial.

12  Another point can be noted here: the globalization of the world economy, and parallel privatization, which meant that in developed economies, certain social functions with international dimensions previously performed by the central State or local government, eg transport, post, telecommunications etc, are now being carried out wholly or partially by private actors. Common crimes directed against these functions, such as theft, will no longer be covered by the protective principle. However, this is not usually perceived as a problem requiring an extension of passive personality jurisdiction. As already mentioned, States are usually able to rely on such common crimes being prosecuted by the authorities in the State where they were committed, even when these are directed against foreign-owned enterprises.

13  The conceptual distinction between the universality and protective principles is that the purpose of the former is to protect the interests of the international community, or of individuals in the States who make up that community whereas the latter is to protect the interests of particular States (International Criminal Law). Nonetheless, the distinction can be blurred in practice. A State has interests both in protecting and maintaining national values (its credit, security etc) and in upholding certain international values, the safety of air transport (Civil Aviation, Offences against Safety), prevention of damage to international submarine cables etc. A national value protected by criminal law can become an international value, whereby States agree, reciprocally, to extend their criminal jurisdiction over extraterritorial acts. Examples of this are treaty based prohibitions against hostage taking, terrorist-financing, and torture (Hostages; Terrorism; Torture, Prohibition of).

14  As regards the relationship between the representation/distribution of competence principle and the protective principle, this is indirect and can be expressed in the following way: offences which are nationally limited with respect to the interest protected, ie those offences which tend to be covered by the protective principle, can either not be prosecuted in the State which is prosecuting the offender on behalf of the State, or can only be so prosecuted if the national interest in question is deemed to be ‘transferred’ (see eg Art. 7 (2) Council of Europe ‘European Convention on Transfer of Proceedings in Criminal Matters’). It can also be noted in this connection that a State in a military alliance can assimilate the interests of its allies to its own interests, regarding, for example, espionage directed against allied interests to be an offence (Alliances; Spies).

15  States’ jurisdictional claims often overlap as they wish to avoid gaps in jurisdiction. As the same act can fall within the jurisdiction of several States, an important safeguard for the individual is the principle that a person should not be punished twice for the same offence (double jeopardy or ne bis in idem). There are obvious difficulties in applying ne bis in idem to offences covered by the protective principle, and various solutions have been devised for this, inter alia in the European Union (Schengen Agreement) and in conventions concluded between Council of Europe (COE) States.

C.  Jurisprudence

16  While the protective principle may have been generally accepted by the end of the 19^th century, the scope of its application, and the limits which applied, or should apply, to its use, soon became a matter of controversy. There were extreme cases in France and Germany before, during and following World War I which involved the application of espionage laws to foreigners, eg the Lux affair in 1911 (see Clunet [1912] 140), when a French officer was convicted in Germany of espionage, despite the fact that the acts in question were carried out in France as part of his official duties, and the Urios case ([1923] 1 RecDal 238) where a Spaniard was sentenced to 20 years’ imprisonment for having, in Spain, revealed military secrets in correspondence with the enemies of France.

17  As mentioned, the UK and the US had early on accepted the exercise of the principle by other States. It was invoked in the case DPP v Joyce (UK House of Lords [1946] AC 347) to justify a treason conviction against an alien (Aliens) on the (strained) basis of his possession of a British passport, and thus a duty of allegiance to the British Crown. The principle has been invoked quite often in the US since the 1960s, eg in Rocha v US (288 F 2d 545 9^th Cir 1961) and US v Pizzarusso (388 F 2d 8 2^nd Cir 1968) concerning immigration matters, US v Zehe (601 F Supp 196 D Mass 1985) concerning espionage, in US v Yousef (327 F 3d 56 2^nd Cir 2003) concerning attacks abroad on US aircraft, in US v Williams (722 F Supp 2d 1313 MD Ga 2010) concerning sexual offences committed by a US national accompanying an employee of the US military (the victim also being a US national), and in US v Reumayr (530 F Supp 2d 1210 D NM 2008) concerning attempted sabotage in Canada of the (privately owned) trans-Alaska oil pipeline. Several of these cases also justify the application of jurisdiction both on the protective principle and the ‘effects’ doctrine (see also State of Arizona v Coz Flores [Petition for Review] 218 Ariz 407 Ariz Ct App 2008). The principle has also been invoked frequently to justify convictions of drug smugglers on stateless and foreign-flagged vessels heading for the US, which the US has stopped and searched pursuant to prior or—in some cases—subsequent permission from the flag State. US v James-Robinson (515 F Supp 1340 SD Fla 1981) is a rare case in which the principle was not found capable of justifying an assertion of jurisdiction over a drug smuggler, seized 400 miles from the US coast, on the basis that there was no evidence that the boat was heading to the US and so no US interests were affected. In Ali v Israel (Appeal Decision) (Cr A 9334/08) the Supreme Court of Israel (Beit Ha Mishpat Ha Elyon) considered that the principle, even on a narrow interpretation of its scope, justified the assertion of jurisdiction over a Palestinian policeman in Gaza (then subject to Israeli military administration) who had sold weapons and explosives to people belonging to a group Israel had classified as a terrorist organization.

18  In States which place limits on active personality jurisdiction or which have a general rule of conditional active personality jurisdiction, and which therefore apply the protective principle even to the extraterritorial offences of nationals, the principle is used occasionally, see eg the Swedish cases NJA 1983 68 and NJA 1987 133 (both concerning drug smuggling).

19  Examples of the hybrid form of protective/passive personality principle jurisdiction can be found in the conviction (in absentia) of an Argentinian serviceman for the murder of three French nuns during the ‘Dirty War’ (Astiz, Arrêt, No 1893/89 Cour d’assises de Paris 16 March 1990) and the conviction of hijackers for seizing, in Lebanon, planes carrying, inter alia, US passengers in US v Yunis (924 F 2d 1086 DC Cir 1991). Both cases are occasionally also cited as examples of universality jurisdiction, illustrating the mingling, in practice, of three different types of interest.

20  The protective principle operates as a national, and extraterritorial, principle and it is thus is not part of the territorially limited statutes of the ad hoc United Nations (UN) tribunals (International Criminal Tribunal for the Former Yugoslavia [ICTY]; International Criminal Tribunal for Rwanda [ICTR]; now International Residual Mechanism for Criminal Tribunals [IRMCT]). The principle was not the direct object of discussion in the Lotus Case, but dissenting and separate opinions refer to it. The same can be said regarding the Arrest Warrant Case (Democratic Republic of the Congo v Belgium). The scope for applying the principle for EU States in their internal relations was limited as a result of the ECJ Judgment in Case C–187/01 Hüseyin Gözûtok [2003] ECR I-5689 interpreting the ne bis in idem principle in Art. 54 Convention implementing the Schengen Agreement (Schengen II).

D.  Assessment

21  There are two types of problems involved in basing jurisdictional claims upon the protective principle. The first is that the protective principle is very flexible, and can be used to legitimize the extraterritorial application of all manner of unpalatable offences, eg political offences such as ‘speech crimes’ and vague offences against the economic interests of the State. It is not simply dictatorial States which make such claims. US export controls asserting jurisdiction over foreign nationals or companies which transfer US origin technology or administrative/criminal penalties on companies which breach US sanctions have been justified on occasion by reference to the protective principle (Economic Sanctions). It is difficult to confine the scope of the protective principle, at the same time as conceding that each State is the judge of its own security. States which wish to protect their nationals against what they perceive to be unreasonable exercises of jurisdiction will want to intervene to protect their nationals (Diplomatic Protection). Thus, the protective principle also carries with it a potential for conflicts with other States. The second problem with the principle is that it can be hard on individuals. An individual can be punished for conduct which was not only not criminal in the place where it was committed, but even when he or she was exercising a right, or enjoying a liberty in the other State. In particular, acts regarded as free speech in one State may, when published on the internet, be regarded as serious offences in another. The criminal law principle that legislation should give ‘fair warning’ to potential offenders is relevant here. And, as already mentioned, the application of the principle of ne bis in idem is often excluded by States as far as offences covered by the protective principle are concerned. Nonetheless, the protective principle is a principle which is still necessary for most States to assert and one which is likely to remain necessary for the foreseeable future.