How is Nationality Principle applied in practice?

Question

I was very surprised to see some people thinking that once they step out of their country of citizenship its laws no longer apply to them.

It is my understanding that the concept of citizenship includes jurisdiction of the country over its citizens, whether they're on its territory or not ("The Nationality Principle"). Routinely, countries demand extradition of their citizens for criminal offenses, and prosecute citizens for crimes committed outside their borders.

Apparently the concept is much more controversial than I thought. So, how is it really being applied, and is it uniform or different countries see this differently?

Note: I'm asking about a country exercising sovereignty over its own citizens, not other countries recognizing that sovereignty. I'm well aware that extradition requests don't have to be granted. A good example would be an X citizen in country Y does what a country X considers a crime and perfectly legal in country Y, yet X citizens could still be prosecuted for that. Like this case:

Russian human rights activists said while living in the US she had made a single transfer of $51.80 on the first day of Russia's full-scale invasion of Ukraine on 22 February 2022. The FSB is thought to have discovered the transaction on her phone.

Answer 1

Most laws do not apply extraterritorially

There is a general presumption against the extraterritorial application of a law. All legislation is prima facie territorial. Only where a contrary intent appears in the statute does legislation apply extraterritorially. See American Banana, Aramco, and more recently, Morrison v. National Australia Bank, 561 U.S. 247 (2010). Similarly, in Canada, see Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, para. 55.

The rationale for the presumption is based in comity at international law.

On that understanding, there are five generally recognized (although still contested to various degrees) grounds on which extraterritorial application of a statute is proper (and again, only if the clear intent is expressed in the statute). See the Restatement (Third) of Foreign Relations Law, or a similar listing in Danielle Ireland-Piper, "Extraterritorial Criminal Jurisdiction: Does the Long Arm of the Law Undermine the Rule of Law" (2012) 13(1) Melbourne Journal of International Law 122

• to a country's own citizens, wherever they are located (the "nationality" principle you're asking about)
• to activities with a substantial territorial effect (the "effects" principle)
• for national security purposes (the "protective" principle)
• over activities universally recognized as crimes against humanity (the "universality" principle)
• where the victim of the act is a national of the state asserting jurisdiction (also known as the "passive nationality principle")

Those are the circumstances where a nation can¹ have their law apply extraterritorially. Whether any given law does apply extraterritorially depends on the expressed intent in the law itself.

Some examples where states have relied on nationality to exert jurisdiction extraterritorially are:

• Canada provides for extraterritorial application of its criminal law for offences committed by Canadian citizens on the international space station, as well as for hostage taking, treason against Canada, bigamy, torture, sexual offenses against children, war crimes, and genocide (this is not a complete list, but meant to indicate the kinds of offences where Canada asserts its jurisdiction extraterritorially over its citizens).
• The United States asserts its jurisdiction extraterritorially through criminal laws relating to air travel, customs, spacecraft, and human trafficking and sex offences (this is also not a complete list).

Each the several states of the US can also criminalize extraterritorial conduct of their citizens, as long as the state has a legitimate interest and there is no conflict with federal law (Skiriotes v. Florida, 319 US 69 (1941)). Other than what was ceded to the union, the state retains "the status of a sovereign."

---

^{1. Here I mean "can" in the sense of it would be acceptable to other nations generally; in another sense, of course any nation can do anything.}

Answer 2

france claims an extensive extraterritorial application of its criminal laws.

The relevant statute is articles 113-1 to 113-14 of the penal code. French criminal law is applicable to:

• anything occuring over French territory (113-2), ships (113-3) and aircrafts (113-4) operating under French flag
• any felony committed by French citizens anywhere, or any misdemeanor when committed in a country where it is also illegal (113-6) [the limit between "felony" (crime) and "misdemeanor" (délit) is whether the maximum applicable imprisonment term is above or below 10 years] which has not been prosecuted abroad (113-9)
• anything electronic that had targets in French territory (113-2-1), or anything targeting a French citizen if it can carry a jail sentence (113-7) and has not been prosecuted abroad (113-9)
• any crime with a maximum sentence of five years in prison or more, even committed by a non-citizen outside of French territory with no French targets, when the author is in French custody and the extradition request was refused due health reasons or because the requesting country would not guarantee a fair trial, would prosecute for political reasons, or might impose an unconscionable sentence [= death penalty or corporal punishment] (113-8-1)
• plus a bunch of claims of jurisdiction for large-scale international criminal activity (counterfeiting, terrorism, etc.) which I will not bother detailing here.

You could say "laws no longer apply" to a French citizen abroad after reading 113-6, but really, you can smoke weed in Amsterdam and procure prostitution in Hamburg and that is about it. The real difference is in practice rather than theory - if a French citizen murders someone in a country with a weak state apparatus and tense diplomatic relations with France, then flees back to Paris, French courts have jurisdiction but the prosecutor will have difficulties preparing a case.

Answer 3

Every country is free to decide who its laws apply to. The most common rule is “any crime committed in the country” by whoever against whoever. If everyone followed that rule then any crime would be prosecuted exactly once.

The USA for example adds “US citizen committing bribery abroad” and “US citizen murdering another US citizen abroad” (that’s probably not a complete list), and other countries can add other crimes.

PS The question could be misunderstood. Say a German citizen moves to Italy. Most crimes according to German law that he could commit would be crimes according to Italian law as well, so he is not allowed to do these things - because of Italian law.