Hong Kong, you're so extra(territorial)
Extraterritorial laws are common and widely accepted, but Hong Kong's recent efforts to regulate political speech abroad may signal a concerning trend
On November 29, the US-based Wall Street Journal published an editorial describing some basic realities facing those of us in Hong Kong: that our upcoming Legislative Council election is a “sham” in which “all candidates [must] receive pre-approval from the Communist Party”; that “only three of the 153 Legislative Council candidates identify as pro-democracy” (in a supposedly democratic election); and that much of the opposition has been “arrested, disqualified from holding office, or driven into exile.” The editorial ended with the observation that “boycotts and blank ballots are one of the last ways for Hong Kongers to express their views.”
Hong Kong’s government, as a professional and competent authority, realized the best thing to do was ignore this criticism from a single foreign newspaper, let the attention die out and get on with their lives.
Just kidding. The Secretary for Constitutional and Mainland Affairs, Eric Tsang (an interesting choice given the editorial’s claim that the election is controlled by the Mainland) responded with a letter rebutting the claims. At the end, Tsang took things further:
“Please be advised that inciting another person not to vote, or to cast an invalid vote, by activity in public during an election period is an offense under section 27A of the Elections (Corrupt and Illegal Conduct) Ordinance, irrespective of whether the incitement is made in Hong Kong or abroad. We reserve the right to take necessary action.”
Did the Hong Kong Government threaten an entire US-based editorial board with criminal charges? It certainly seemed that way. The WSJ quickly published the letter with the delightful title, “Hong Kong Issues a Threat to the Wall Street Journal.”
Just in case the world didn’t get the message, this past Friday, December 10, the government did it again—this time in a letter from the Director-General of the Hong Kong Economic and Trade Office in London to the Sunday Times, using the same threatening language.
The letters sparked a mix of outrage and befuddlement online, with (ahem) some people goading the government to bring charges, if just for the entertainment value of seeing Hong Kong seek, and fail, to use its laws to silence the free-wheeling US press.
Many of the concerns raised were about Hong Kong’s threatened extraterritorial application of the law—the threat to prosecute people who are not in Hong Kong, are not Chinese citizens, and may never have even set foot in the territory. And this isn’t the first time in recent months that Hong Kong’s application of its laws abroad has caused controversy. The infamous “National Security” law, or NSL, passed in June 2020, criminalized a wide range of vaguely-defined activity such as “terrorism” and “provoking hatred…against the government.” Under Article 38, the prohibitions apply to any offenses against Hong Kong “from outside the Region by a person who is not a permanent resident of the region.” In other words, the NSL applies to everyone, anywhere on Earth, the Moon or the International Space Station, so long as the prohibited act is committed “against the Hong Kong Special Administrative Region.”
So what’s going on here? Is it unusual for governments to apply their laws across borders?
Not really, it turns out.
What is extraterritorial jurisdiction, and how common is it?
International law recognizes two principal sources of a state’s jurisdiction: territoriality and nationality.
Nationality jurisdiction is the less commonly used of the two, but still widely accepted: In short, it permits a state to regulate the conduct of its citizens or residents anywhere in the world.1 Territoriality jurisdiction is what we are most familiar with: A state has jurisdiction to regulate people, things and activities within its territory.
But here’s where it gets interesting: There are two recognized categories of territorial jurisdiction, and for one of them, the principal act doesn’t have to occur in the government’s territory at all.
Subjective territoriality is a government’s right to exercise jurisdiction over acts occurring in its own territory. It is the most common form of territorial jurisdiction. We see it every day: If you steal something from a shop while you’re in Hong Kong, you’re subject to Hong Kong’s laws on stealing.
Objective territoriality, by contrast, is the right to exercise jurisdiction over acts occurring outside the territory if those acts have effects within the territory.2 It is less common, but still widely accepted.
A simple example illustrates the difference. Joe is standing in France near its border with Germany. Jinping is standing in Germany near its border with France. Joe pulls out a gun and shoots. The bullet sails forward, crosses from France into Germany, and hits and injures Jinping. Under the principle of subjective territoriality, the act of shooting the gun occurred in France so France has the right to prosecute Joe for breaking the law. But under the principle of objective territoriality, Germany can prosecute Joe as well. While the prohibited act occurred in France, there was a direct effect in Germany—namely, the bullet hit Jinping, who was injured.3
According to the UN, the objective territorial principle is “well established” and broadly accepted across the world’s jurisdictions.4 A key point in the principle’s development was the 1927 Lotus case at the International Court of Justice. In that dispute, a French vessel collided with a Turkish ship, killing several of the Turkish sailors. Even though the French ship was “French territory” under international law, the ICJ allowed the Turkish government to prosecute the French officer allegedly responsible because the act in French territory—causing the crash—had effects that were felt in Turkish territory (i.e., on the Turkish vessel).
UK law (which still applies in Hong Kong, at least on paper) has also long recognized objective territoriality as a valid justification to exercise jurisdiction. In Queen v. Nillins (1884), the Queen’s Bench of the English High Court of Justice dealt with a German extradition request for a fraud-related crime. The letters that contained the fraud were written in England and forged bills of exchange were mailed from there, but the goods were obtained in Germany. The defendant claimed that since the wrongful acts were committed in England, only England had jurisdiction over the crime, not Germany. But the Court allowed extradition, concluding that since the crime’s main effect was in Germany—the victims were defrauded there—Germany had at least as much right to jurisdiction as England.5
Other examples are easy to find. In the US, some drug laws and court interpretations extend to activity, such as conspiring to import drugs, taken entirely outside US territory on the rationale that the international drug trade causes “substantial effects” within the United States. Cases in many jurisdictions including Britain and Australia have applied their laws to foreign websites due to these sites being accessible in their territories. Germany, Austria, Denmark, Finland, France, Greece, Norway, Portugal, Spain, Sweden, Switzerland, Canada, and Japan have all adopted some form of the principle.6
So now that we know a government can regulate activity abroad if the activity has a substantial effect in the territory of that government, let’s see how that applies to Hong Kong’s recent extraterritorial laws.
Hong Kong’s recent extraterritorial laws don’t technically violate objective territoriality principle
Let’s set aside, for a moment, the actual content of the voting boycott incitement law and the National Security law. Despite many focusing their outrage on their extraterritoriality, on paper there is nothing about this aspect of the laws that is outside of the norm. They both fit within the bounds of the objective territoriality principle.
The voting boycott law is designed to prevent a specific activity: inciting others, through a communication, to boycott a Hong Kong election or cast a blank ballot. The location where that communication is made may be in Hong Kong, or it may be abroad. But by definition, activity inciting Hong Kong voters to boycott or cast a blank vote in Hong Kong’s election will have an effect within Hong Kong, no matter where the activity takes place. The law does not criminalize inciting someone to boycott a British election; it criminalizes inciting someone to boycott a Hong Kong election.
Similarly, the National Security Law prohibits acts committed abroad, but only if the act is committed “against the Hong Kong Special Administrative Region.” Whatever the extent of the activity that the NSL criminalizes (and that is not clear, by any stretch), the activity must be committed against Hong Kong, and therefore have an effect within Hong Kong. The law does not prohibit offences committed against the Japanese Government; it prohibits offences against the Hong Kong Government.
In both cases, under traditional extraterritoriality principles, the laws have a sound basis.
Extraterritorial regulation of speech is a recent, concerning trend
So no cause to take offense, right? Well, not quite. Both of the Hong Kong laws infringe on democratic principles by criminalizing a wide range of fundamental speech typically held sacred by free societies. The NSL was written (and is increasingly being enforced) so broadly as to criminalize nearly all forms of political dissent. The blank ballot incitement law targets a fundamental right in democratic elections: the right to vote for no one at all. So to apply these laws to political speech by foreigners outside of Hong Kong is bound to cause outrage.
And that is why, despite fitting within the bounds of the objective territoriality principle, Hong Kong’s recent enforcement of its laws abroad is still a dramatic departure from the norm. In the last century of development of the objective territoriality principle, it has almost always been applied to activity that is a widely seen by the international community as criminal, such as drug trafficking, human trafficking and corruption. But when it comes to political speech, there is far from any international consensus that it should be outlawed, to say the least.
Indeed, I could find few historical examples where laws curtailing speech have been applied extraterritorially. But there is one other recent, high profile instance: the US Government’s ongoing prosecution and potential extradition of Wikileaks founder Julian Assange, which has also raised the concerns of lawyers and media experts for its potential consequences for free speech and free press in the US. While the initial charge in 2019 (which has its own evidentiary problems) focused on hacking, subsequently added charges focused on the publication of classified materials—activity traditionally covered by the US Constitution’s free speech and press protections.
That there have been so few extraterritorial speech enforcement actions in the past, yet several high profile ones on opposite sides of the globe have appeared in just the past two years, suggests a concerning trend. Once an international legal norm has been abrogated the first time, it tends to break open the floodgates, and it can be very difficult to go back to the way we were. If history is any judge, we will only see more similar attempts in the future.
See Anthony J. Colangelo, What is Extraterritorial Jurisdiction, 99 Cornell L. Rev. 1303, 1312-14 (2014). The UN further splits objective territoriality into activities where an element of the proscribed conduct occurs in the territory versus where the act only causes an effect in the territory, but let’s keep it simple and stick with the single category.
There is a whole body of law and commentary on who, in practice, should prosecute Joe, and in what circumstances one or the other court should simply stop its proceedings to let the foreign prosecution move forward. But that’s beyond the scope of this article.
Queen v. Nillins , 53 L.J.M.C. 157.
See Austen Parrish, The Effects Test: Extraterritoriality's Fifth Business, 61 Vanderbilt Law Review 1455 (2019).