Criminal Law in the 21st Century: The Demise of Territoriality?

Abstract

Crime never confined itself to within the four walls of a given State. Cross-border crime always existed. Yet, States turned a relatively blind eye to the international aspect of crime: they fought crime by bringing it back within their realm. If necessary, they will use extradition rules, but extradition is just an other mechanism to assert territorial jurisdiction, as its objective is to bring the offender to justice within a given space. Indeed, crimes are not only defined but also sanctioned within a territory. States claim jurisdiction first of all on a territorial basis, whether the offense is entirely committed within its four walls, or whether only the conduct or the result of this conduct happened on the territory. Even when a State can claim jurisdiction on personality (author or victim), it ultimately does so because personality is associated with a territory, an enclosed space encompassing values a State wishes to defend through the person of its citizens, as if the person was carrying with her at all times a portion of that territory.Not surprisingly then, criminal law is perceived as the bastion of State's power, maybe the last bastion. Within the EU for example, where States forego important areas of their sovereignty, criminal law remains a no-go area for the European institutions that officially have no power to legislate and adjudicate in criminal law offenses.And yet, the past decades have seen an evolution that tends to relegate the principle of territoriality to the background (I). The increase in transnational crimes forced States to reinvent their cooperation. Regarding international crimes, which have emerged only sixty years ago, the new ICC illustrates the vitality of this movement to bypass territorial walls when necessary. More recently, cybercrime challenged the traditional assizes of criminal law, notably by creating, in virtual communities, virtual crimes which impact is difficult to translate and thus to sanction in real space. And even the EU starts to claim competence to draft criminal laws to protect the environment.In light of those examples, the demise of territoriality could appear imminent. And yet, it is not: despite undeniable challenges, criminal law continues to rest on territoriality (II). Contrary to what was predicted or wished about cyberspace regulation, most cybercrimes can be dealt and are dealt with on a territorial basis, extradition playing an important role in bringing to justice offenders. Old walls stay and if they disappear, it is to be replaced by bigger walls: the EU may weaken its Member States' inside walls, but the outside walls are reinforced. Thus, territories remain the first anchor of criminal law, despite some notable changes in some areas that might well lead the way to rethink criminal law.