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The ‘Effects Doctrine’ is a legal concept in the field of international law that grants governments or courts the authority to claim jurisdiction over events occurring outside of their geographical territory. When these acts have noticeable and significant effects inside their respective domains, such claims of power are accepted. When it comes to managing complex cross-border issues and disputes, this legal doctrine becomes crucial, especially when there are consequences that ripple through several national and international jurisdictions.

The effects doctrine gives nations and international courts the authority to take a proactive approach to addressing and resolving issues involving transnational wrongdoing or harm, particularly where those issues affect their national interests. It is critical to recognize that the effects doctrine is not universally applied or interpreted and that the scope of its applicability might vary significantly throughout legal systems and international organizations. This fluctuation also leads to debates and arguments over the limits and use of authority.

In this article, we will examine the reliance of the Pre-Trial Chamber III ('PTC') of the International Criminal Court ('ICC') on the United States v. Aluminium Co. of America  (‘ALCOA’) judgement for applying effects doctrine. Our specific focus will be the discernment and application of this legal doctrine within the context of the Situation in Bangladesh/Myanmar, shedding light on the nuanced intricacies of its invocation and the ensuing legal implications.

Understanding the effects doctrine vis-à-vis the ICC Judgement

The effects doctrine has resurged in prominence, particularly in the wake of its reference by PTC of the ICC in the context of the situation of Bangladesh/Myanmar. This matter pertains to an act committed within the borders of Myanmar, a country that is not a signatory to the Rome Statute. Consequently, a pivotal question emerged regarding the ICC's jurisdiction over this matter.

The PTC  elucidated that the ICC can exercise jurisdiction in accordance with Article 12(2)(a) of the Rome Statute when, at a minimum, one component of a crime within the court's jurisdiction or a portion thereof transpires on the territory of a State Party  to the Statute. In paragraph 44 of the judgment, the court acknowledged the prevailing practice of confining jurisdiction to the territory of the state party. Furthermore, the court meticulously examined the interpretation of the term ‘conduct’ under Article 12 and whether this conduct necessitates occurrence within the territory of the state party.

In the instant matter, the coercive acts done by the accused resulted in the deportation of the Rohingya community from Myanmar to Bangladesh which was a state party to the Rome statute. Thus, it was observed that ICC will have the jurisdiction in the instant matter since a part of actus reus was done in the state party i.e., Bangladesh.  In paragraph 56 of the Judgement, the court mentioned various principles with respect to jurisdiction, the effects doctrine being one of them. 

Questioning the Legal Foundation: ICC's Reliance on ALCOA Judgment

In this Judgement, PTC relied on the ALCOA judgement for supporting its case for upholding the effects doctrine.

There are two reasons why the ICC's reliance on the ALCOA case raises concern. Firstly, the ALCOA case primarily revolves around antitrust matters, which pertain to civil law rather than criminal law. Its’s pivotal observation was that the Sherman Act of 1890, addressing antitrust issues in the United States of America (‘USA’), is not confined to territorial boundaries. Citation number 98 within the PTC’s observations explicitly acknowledges that the ALCOA case indeed dealt with competition and antitrust matters. Consequently, it becomes perplexing as to why the PTC would draw upon a doctrine established in a case concerning subject matter belonging to civil law while addressing a criminal law issue.

Moreover, in addition to the first issue regarding the legal viability of the ALCOA case, the second point of dispute is PTC's inadequate evaluation of the ALCOA case. The ALCOA ruling marked a significant shift in the PTC's emphasis on the necessity of proving an influence on international commerce in order to use the effects doctrine. But in the Bangladesh/Myanmar case, the PTC only touched on the idea of applying the effects doctrine without addressing significant issues like the need that these effects be direct and substantial in line with the precedent established by the ruling in the United States v. General Electric Co. case.

This leaves an unsettling lack of clarity on whether these effects must be direct and substantial or not. If we assume the existence of such a requirement, the PTC's decision does not set any standard for assessing this requirement. Because of this uncertainty, the effects doctrine's practical applicability is highly nebulous and open-ended, making it difficult for stakeholders and legal professionals to determine its exact bounds and ramifications in light of the PTC's ruling. 

The evaluation of this ruling highlights the intrinsic drawbacks of using the ALCOA case to uphold the application of the effects doctrine. Such dependence creates the possibility of violations of established international legal principles, chief among them the notion of state sovereignty. It also seems to go against fundamental values such as complementarity principle, as embodied in the preamble of the Rome Statute, which emphasises the importance of honouring and giving precedence to national authority.

Consequences and Conundrums: ICC's ALCOA Judgment Reliance and Its Broader Implications

A pivotal question that may arise pertains to the significance of a decision rendered by the ICC: does it possess binding authority or is it rather persuasive in nature? The answer to this inquiry can be found within Article 21 of the Rome Statute, which delves into the applicable law within the ICC. Notably, Article 21, clause 1(b), explicitly states that rules and principles of international law shall be regarded as 'applicable law.'

Hence, the discussion surrounding the ICC's consideration of the effects doctrine in the judgment holds a persuasive value. This implies that the judgment can wield influence over subsequent ICC decisions, effectively shaping the course of jurisprudence in the direction of the effects doctrine. This consideration underscores the far-reaching consequences of ICC decisions and their potential to set significant precedents within the realm of international law.

There is a significant challenge that the ICC must address because of its somewhat arbitrary reliance on a particular case to support the effects doctrine. This challenge relates to the delicate balance that exists between the concepts of extraterritorial jurisdiction and national sovereignty. By its very nature, the effects doctrine runs counter to the well-established and accepted norm of customary international law—the principle of national sovereignty. It is imperative to acknowledge that the ALCOA case decision signified a divergence from prior decisions rendered by US courts. Judge Hand described it as ‘settled law, but a full historical account shows that same was not the case, at least until 1945. As a result, the core idea of the ALCOA case is based on dubious, assumptions, rendering it legally problematic.

The PTC recognises the dominant customary international law norm of territoriality in paragraph 44 of the ruling, noting that most precedents are limited to the state's borders. The PTC argues in paragraph 60 of the ruling that extraterritorial jurisdiction can be exercised because the ICC does not expressly prohibit it from doing so. There are two main issues with this reasoning. First, as the notion of national sovereignty is a well-established customary law principle in terms of itself, the PTC bears the responsibility of establishing the effects doctrine as a standard to be adhered to under the ICC Statute, not the other way around. Second, the Rome Statute itself, in its preamble, underscores the principle of complementarity, emphasizing that national jurisdiction holds primary precedence.

Hence, the ICC's somewhat tenuous reliance on the effects doctrine could have far-reaching implications, particularly in the context of international law and the intricate balance between extraterritorial jurisdiction and national sovereignty. The ICC's interpretations and applications of legal principles must remain consistent with established norms and international agreements, particularly as the court navigates complex legal landscapes such as the effects doctrine.

Towards a New Horizon: Future Directions and Concluding Reflections

The analysis highlights that the reliance of PTC on the ALCOA case in the Bangladesh/Myanmar Judgment raises concerns on multiple legal fronts. It is important to note that this does not imply that all forms of extraterritorial jurisdiction inherently infringe upon national sovereignty and should be outright prohibited. The landmark judgment of the International Court of Justice (‘ICJ’) in the S.S. Lotus case underscores the necessity of extraterritorial jurisdiction in exceptional circumstances. In this case, when extending Turkey's jurisdiction, the ICJ explicitly stated that its decision was ‘strictly confined to the specific situation in the present case, for it is only in regard to this situation that its decision is asked for.’ This demonstrates the court's preference for a narrow and specific application of extraterritorial jurisdiction when justified by the unique circumstances of a given case.

The author recommends the adoption of a tripartite analysis as a prerequisite for the application of the effects doctrine, drawing inspiration from the case of Timberlane Lumber Co. v. Bank of America, laid down by the district court of the USA. This analytical framework is adapted to suit the requirements of the international criminal law landscape and encompasses the following key inquiries:

  1. Intent and Effect on Third Parties: Does the act in question possess the intent or actual effect of influencing any third party that is advocating for the assertion of extraterritorial jurisdiction through the effects doctrine?

  2. Nature and Violation: Is the nature of such an act substantial enough, and does it transgress the laws of the party advocating for the application of the effects doctrine, thereby justifying the invocation of extraterritorial jurisdiction?

  3. Justice and Fairness: Is it just and equitable to invoke such extraterritorial jurisdiction, even if it means surpassing the bounds of national sovereignty?

This tripartite analysis, if inducted, will offer a comprehensive framework for evaluating the applicability of the effects doctrine in international criminal law cases, ensuring that the principle of extraterritorial jurisdiction is applied judiciously and in harmony with principles of national sovereignty. The author proposes that induction of this test will give a structure and the application of effects doctrine will be more reasoned. Therefore, the ambiguity and vagueness which is created by the judgement of PTC in the Bangladesh/Myanmar case can be fixed by such tailor-made application of the effects doctrine for international criminal law, rather than absurd reliance on a domestic case of a nation which is not even related to criminal law, but dealt with antitrust and competition matter.


Utkarsh Sharma is a Third Year Law student, at Hidayatullah National Law University, Raipur.