1

Master’s Thesis

LLM International Law and Global Governance

The Department of European and International Public Law

JURISDICTIONAL CHALLENGES IN TRANSNATIONAL CHILD

PORNOGRAPHY CYBERCRIME

Supervisor: PhD researcher Amy Locklear

Student: Nidhi Shajan Paul

SNR: 2059816

ANR: 143147

Word Count: 12,345

Submission: 14 January 2022

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TABLE OF CONTENTS

CHAPTER 1: INTRODUCTION ........................................................................................................ 3

1.1 Background ........................................................................................................................... 3

1.2 Research Question ................................................................................................................ 5

1.3 Methodology .......................................................................................................................... 5

1.4 Thesis Structure .................................................................................................................... 6

CHAPTER 2: ANALYSIS OF TERMINOLOGIES SURROUNDING CHILD

PORNOGRAPHY ................................................................................................................................. 7

2.1 Introduction ................................................................................................................................. 7

2.2 Cyberspace................................................................................................................................... 8

2.2.1 Cybercrimes .......................................................................................................................... 9

2.3 Child ........................................................................................................................................... 10

2.4 Child Pornography ................................................................................................................... 14

2.4.1 Forms of Child Pornography ............................................................................................ 15

2.4.2 Methods of Child Pornography ........................................................................................ 17

2.5 Conclusion ................................................................................................................................. 17

CHAPTER 3: JURISDICTIONAL CHALLENGES ...................................................................... 19

3.1 Introduction ............................................................................................................................... 19

3.2 Principle of Reasonableness ..................................................................................................... 20

3.2.1 Jurisdiction to prescribe .................................................................................................... 20

3.2.2 Jurisdiction to adjudicate .................................................................................................. 22

3.2.3 Jurisdiction to enforce ....................................................................................................... 23

3.3 Factors to be considered while dealing with Jurisdiction...................................................... 24

3.3.1 Location of the Act ............................................................................................................. 25

3.3.2 Location of the Person ....................................................................................................... 28

3.4 Conclusion ................................................................................................................................. 33

CHAPTER 4: OVERCOMING JURISDICTIONAL CHALLENGES ......................................... 35

4.1 Introduction ............................................................................................................................... 35

4.2 Extradition ................................................................................................................................. 35

4.3 Mutual Legal Assistance ........................................................................................................... 38

4.4 International Cooperation ........................................................................................................ 41

4.5 Conclusion ................................................................................................................................. 42

CHAPTER 6: CONCLUSION ........................................................................................................... 43

BIBLIOGRAPHY ............................................................................................................................... 45

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CHAPTER 1: INTRODUCTION

1.1 Background

The globalized world uses the cyberspace for nearly everything, including economic processes

and politics. The expansion of internet in cyberspace users has rapidly increased within the last

two decades. Internet is a part of cyberspace1 (detailed explanation in Chapter 2.2). Although

cyberspace is playing a crucial role in the economic and social growth of various States around

the globe, certain aspects of cyberspace violate the fundamental human rights of citizens

around the globe.2

Traditional forms and methods of crimes have evolved into more sophisticated forms in

cyberspace, also known as cybercrimes (detailed explanation under Chapter 2.2.1). With the

expansion of cyberspace, the fundamental jurisdictional principle of subjective territoriality is

challenged. The crimes in cyberspace take place in one territory while the effects of the crime

can be felt across various States.

Advancement in technology has generated different threats, and the traditional methods of child

abuse have evolved to child pornography in cyberspace. 3 Child pornography is a global

concern where the perpetrator can sexually exploit a child through advanced technology.4 The

key factors are anonymity, transnationality, and easy access to the internet, making committing

these crimes easier.5 Cybercriminals’ power to collaborate internationally and launch cyber

operations remotely 6 makes the enforcement of domestic laws to address these crimes

sophisticated.

1 Janine Krembling and Amanda M sharp parker, Cyberspace, Cybersecurity and Cybercrime (1 edn, SAGE

Publication 2017) 47 2 Ibid 47 3 UNGA ‘Report of the Special Rapporteur on the sale of children, child prostitution and child pornography’ UN

HRC 28th Session Supp No 3 UN Doc A/HRC/28/56 4 Ibid 5 Dominik Brodowski, Transnational Organised Crime and Cybercrime. in Pierre Hauck and Sven Peterke (eds),

International Law and Transnational Organized Crime (1st edn Oxford University Press, 2016) 335 6 Alexandra Perloff-Giles, 'Transnational Cyber Offences: Overcoming Jurisdictional

Challenges' (2018) 43(191) Yale Journal of International

Law <https://heinonline.org/HOL/Page?handle=hein.journals/yjil43&collection=journals&id=205&startid=&en

did=245> accessed 23 September 2021, 199

4

Child pornography began to appear strong on the public-policy agenda in the 1970s, and by the

late 1970s, nations began to implement specific laws concerning various pornographic material

involving children.7

The evolution of the technology has allowed offenders to come together by building a virtual

community where they support one another and exchange information and tips on offending.8

Multiple territories are involved where various perpetrators play a role in the commission of

the crime of child pornography in cyberspace.9 Child pornography involves the sexual abuse

of a child and the uploading, viewing, sending, receiving, and downloading of illegal child

pornographic content in cyberspace.10

One of the major issues that arise with respect to subjecting the offender to trial if he/she

commits the crime of pornography is establishing the jurisdiction. 11 A case of child

pornography has various factors that come into play. These factors involve the nationality and

location of the victim and perpetrator, the location where the act of abuse took place, the

location where the illegal pornographic content was uploaded onto cyberspace, and the location

where the perpetrators are viewing, downloading, receiving, and sending these contents. These

factors play a key role in establishing jurisdiction to enforce domestic laws and bring the

perpetrators to justice.

This thesis aims to address various issues concerning transnational child pornography cases in

cyberspace, which challenge establishing jurisdiction by the State. Additionally, it aims to

analyze jurisdictional challenges as a result of variations in the definition and understanding of

“child” and “child pornography” and analyze the application of principles of jurisdiction and

the importance of international cooperation to fight the crime of child pornography.

7 Alisdair A Gillespie, 'Jurisdictional issues concerning online child pornography' [2012] 20(3) International

Journal of Law and Information Technology <hhtps://academic.oup.com/ijlit/article/20/3/151/651123> accessed

22 September 2021, 169 8 Stephan Wilske and Teresa Schiller, 'International Jurisdiction in Cyberspace: Which Nations May Regulate the

Internet' [1997] 50(1) Federa; Communications Law Journal 117

(2001) <https://www.repository.law.indiana.edu/fclj/vol50/iss1/5/> accessed 1 October 2021, 122 9 Ibid 122 10 Ibid (7) 166 11 Ibid (7)166

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1.2 Research Question

Based on the issues mentioned above, the primary research question of this thesis is:

What are the jurisdictional challenges in prosecuting transnational cybercrime of child

pornography?

The following sub-questions will be analyzed, in order to answer this question:

i. How has the variations in the definition of “child” and “child pornography” created

jurisdictional challenges in prosecuting child pornography cases in cyberspace?

ii. What are the various principles of jurisdiction that can be applied to a transnational

child pornography case? How can the analysis of these principles help the State to

establish jurisdiction?

iii. What is the relevance of international cooperation through extradition and mutual legal

assistance to investigate and prosecute the case of transnational child pornography case

in cyberspace?

1.3 Methodology

This thesis is focused on doctrinal research methodology to address the question mentioned

above. Doctrinal research encompasses of detailed research of legal doctrines and its

developments along with legal reasoning.12 In other words, “doctrinal legal research is all

about thorough enquiry in legal concepts…principles, legal texts…”13 This thesis has focused

on international legal documents such as conventions, protocols, treaties, general assembly

resolutions and so on to analyze the jurisdictional challenges in transnational child pornography

case. Additionally, secondary sources such as scholarly articles and books are relied on to

further understand the issues surrounding transnational crime, cybercrime and child

pornography crime. Doctrinal research has also enabled to systematic analyze limitations

relating to law on these subjects.14

12 Terry Hutchinson and Nigel Duncan, ‘Defining and Describing What We Do: Doctrinal Legal Research’ (2012)

17(1) Deakin L Rev 83-119, 92 13 Ibid 92 14 Ibid 94

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1.4 Thesis Structure

In order to answer the research question, this thesis has the following structure:

Chapter 2 discusses various terminologies surrounding the child pornography case in

cyberspace. The first concept discussed is cyberspace, how it is different from the internet, and

what cybercrimes are. This is important to understand how cybercrimes are different from

traditional crimes. The second aspect discussed is the definition of a “child” and how the

diverse understanding of the definition of a “child” affects the laws against “child

pornography” crimes. Various international laws, UN recommendations, and scholarly

interpretations are considered to analyze the variations in defining a “child.” Lastly, the

definition of “child pornography” is discussed. This section is divided into two parts where

different forms of illegal child pornographic contents are discussed and methods in which

pornographic files are created.

Chapter 3 provides the various jurisdictional challenges in transnational child pornography

cases and is divided into two sections. The first section discusses the concept of establishing

jurisdiction based on reasonableness, that is, jurisdiction to prescribe, adjudicate and enforce.

The second section examines various principles of jurisdiction in child pornography

cybercrime case based on the location of the victim(s) and the perpetrator(s) and the location

of the act.

Chapter 4 discusses how international cooperation amongst States is critical in a child

pornography case. This chapter elaborates on extradition and mutual legal assistance once the

State establishes jurisdiction to investigate and prosecute the case.

Chapter 5 presents the conclusion of the thesis. This chapter briefly summarizes the analysis

of all the chapters and concludes that uniform laws against child pornography are critical to

fight against this crime. Similarly, international cooperation can help States achieve justice for

the victims and punish the perpetrators for the crimes.

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CHAPTER 2: ANALYSIS OF TERMINOLOGIES SURROUNDING CHILD

PORNOGRAPHY

2.1 Introduction

The Special Rapporteur at the 2014 General Assembly report states that “information and

communication technologies allow the user to communicate with each other and, in particular,

to access the Internet.” 15 Technological development, especially cyberspace internet, has

allowed people around the globe to connect. Even though there are many pros to using the

internet, there exist multiple challenges concerning cyberspace crimes.

Traditional forms of crimes have also evolved with the advancement of technology.16 This

means that the traditional definitions of crime require updating. Child pornography in

cyberspace is an example.

Child pornography existed even before the internet came into existence. Before the internet

development, child pornographic materials were available in porn magazines. However, new

technologies have transformed how child pornographic content is created and traded.17

The definition of a criminal act is crucial to determining investigation and prosecution

jurisdiction.18 Unless a crime is elaborately defined, it becomes difficult to investigate the

crime and for the court to convict a perpetrator. The definition is the basis for establishing an

act as a crime. The Special Rapporteur, on sale of children, child prostitution, and child

pornography stated “specific legislation including a definition of child pornography and the

enumeration of the illegal activities related to child pornography is essential to prosecute this

crime.”19

This chapter will look into various international treaties, recommendations by international

bodies and scholarly interpretations to understand the definitions of specific terminologies

surrounding online child pornography cases.

15 Ibid (3) 16 Ibid (6) 207 17 Ibid (3) 18 Ibid (6) 209 19 UNESC ‘Report submitted by Mr. Juan Miguel Petite, Special Rapporteur on the sale of children, child

prostitution and child pornography’ UN HRC 61st Session Supp No 13 Un Doc E/CN.4/2005/78 (2004)

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2.2 Cyberspace

The internet has linked the world without geographical barriers, but the inventors of these

technologies did not predict their use as a criminal platform. Even though these developments

have helped create economic and political changes, the internet has a dark side.20 The abilities

of the internet have attracted criminals and criminal organizations to connect with other like-

minded individuals to expand their networks. Cybercrimes are criminal activities that take

place in cyberspace. However, to further understand the meaning of cybercrime, it is crucial to

analyze what determines cyberspace and the difference between cyberspace and the internet.

According to National Security Presidential Directive 54/Homeland Security Presidential

Directive, cyberspace is defined as "the interdependent network of information technology

infrastructures and includes the internet, telecommunications network, computer systems, and

embedded processors and controllers in the critical industry."21 In other words, cyberspace is

the virtual world in which individuals interact and communicate with others.22 According to

Kremling and Parker, four layers make up cyberspace: (1) physical layer; (2) logic layer; (3)

information layer; and (4) personal layer.23 The physical layer includes the PCs, wires, routers,

and the geographical jurisdiction is easy to specify. This layer enables the investigators to

gather evidence.24 The logic layer is internet design creates, such as social media and content

creation.25 The information layer is the information exchanging platform for users.26 The last

layer, personal layer, consists of the individuals who create the websites and content in

cyberspace.27

Terms such as cybercrimes, cyberattacks, and cybersecurity created the word cyberspace.28 As

per the definition of cyberspace mentioned above, it is evident that "the internet is a part of

cyberspace.:29 Kremling and Parker state that "the internet is a global system of interconnected

computer networks set up to exchange various types of data."30 This network connects people

20 Explanatory Report to the Convention on Cybercrimes (2001) OJ 1 185/1 21 Ibid (1) 47; see also The White House, ‘National Security Presidential Directive 54/Homeland Security

Presential Directive 23’ Cybersecurity Policy (DOCID 4123697, 2008) 22 Ibid (1) 47 23 Ibid (1) 47 24 Ibid (1) 47 25 Ibid (1) 47 26 Ibid (1) 47 27 Ibid (1) 47 28 Ibid (1) 40 29 Ibid (1) 41 30 Ibid (1) 47

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around the globe, "transcending geographic and national boundaries."31 Thus, the complex

nature of cyberspace makes it hard to pinpoint the exact geographical location of an act,

making it difficult for the States to establish jurisdiction.

2.2.1 Cybercrimes

A criminal activity involving a computer either as a means or target for committing the crime

falls within the scope of cybercrime. 32 Cybercrime involves committing criminal acts in

cyberspace internet or using various electronic communication networks.33 In other words,

cybercrime may be “unlawful acts wherein the computer is either a tool or target or both.”34

The consequence of criminal acts can be challenging due to anonymity in cyberspace and

pinpointing the exact location of the crime.35 Different organizations and policymakers have

interpreted the definition of cybercrime from different perspectives. For this thesis, it is crucial

to have a working definition of cybercrime. The element of “cyber” is “perpetrating

qualitatively new offenses enabled by information technology or integrating cyberspace into

more traditional activities.”36

The commission of cybercrimes goes beyond the national and international border and raises

jurisdictional concerns that one State alone cannot address.37 Cybercriminals have adapted to

the borderless nature of cyberspace and evade justice by using multiple secure software to

remain anonymous.

Thus, cybercrimes are transnational in nature and the consequential harm from these crimes

can be felt in various States simultaneously. Cybercrimes have challenged various legal

concepts38 regarding traditional forms of crime, one such example being child pornography.

The commission of child sexual abuse on the internet cyberspace is a form of cybercrime. This

crime is commonly known as child pornography on the internet or child pornography in

cyberspace.

31 Ibid (1) 90 32 Ibid (1) 135 33 European Commission ‘Cybercrime’ (Migration and Home Affairs) <https://ec.europa.eu/home-affairs/what-

we-do/policies/cybercrime_en> accessed on 12 November 2021 34 Ibid (1) 135 35 Ibid (20); see also ibid (1) 49 36 Ibid (1) 37 Ibid (1) 38 Ibid (35)

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Cybercrimes such as child pornography have created a new spectrum of challenges to the

traditional domestic criminal justice system. It is crucial for all the States to adopt consistent

definitions of cybercrimes such as child pornography since the entire globe in cyberspace is

connected through different platforms such as social media and websites.39 These laws should

be consistent and uniform worldwide, including the procedural law for investigation and

prosecution.40

As mentioned earlier, the biggest challenge in cybercrime is the nature of its transnationality.41

Thus, under the criminal justice system, the geographical borders between States play a

minimal role in the commission of cybercrimes. Brodowski argues that due to the lack of

geographical segregation in the commission of transnational cybercrime, crimes in cyberspace

should fall under the fifth common space similar to high seas, and Antarctica.42

This thesis focuses on transnational child pornography cybercrime in cyberspace. The

following two sections will discuss the legal meaning of who can be considered a child and

what acts or materials can be child pornographic content.

2.3 Child

The definition of a child and who shall be considered a child or minor has been drafted in

various States differently. This inconsistency leads to divergence and has led to difficulties in

producing a neutral standard in gauging child pornography on the internet.43 The limitation of

defining a "child" in standardized wordings impacts on identifying a victim of transnational

"child pornography" crime under the law.

Kalim identifies two principal methods to determine an individual as a child for child

pornography cases: biological and age-specification. 44 The biological principle is when

puberty is considered the basis to define the child's age.45 However, Kalim's main drawback is

39 Ibid (7) 162 40 Ibid (5) 356 41 Ibid (7) 162 42 Ibid (40) 43 Alexdander Kalim, 'Addressing the Gap in International Instruments Governing Internet Child

Pornography' [2013] 21(428) CommLaw Conspectus <

https://scholarship.law.edu/commlaw/vol21/iss2/7> accessed 20 May 2021, 430 44 Ibid (43) 434 45 Ibid (43) 434

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regarding the non-recognition of the emotional aspect, even though a child can be physically

ready for sexual consent.46 The second principle, the age-specific method of defining child for

child pornography, is for the law to prescribe an age.47 This method is also limited because

deciding the right age to give sexual consent is ambiguous.48 Both these principles are relevant

to determining the age for sexual consent. The age-specific principle is more prominently used

to establish the legal age for sexual consent by the States but based on various factors, including

biological factors. The age of consent is relevant to sexual abuse cases of children. Each State

has used its reasons for establishing a specific age for sexual consent, which ranges between

13 years to 18 years, and for some States, it is the marriage that allows them for sexual

consent.49 Since most States use age-specific principles, this thesis will focus on the age

prescribed by law. It is essential to establish a specific age under the law to consider an

individual a victim of child pornography in cyberspace.

The lack of a consistent legal definition of a "child" as per age-specific principle has challenged

the definition of "child pornography.50 Moreover, under various international instruments, it is

observed that there are inconsistencies in the definition of a "child" for sexual abuse. This thesis

argues that for a child to be considered a victim of child pornography crime, the international

community should implement a single standardized definition of a child51, and the States

should implement a standardized legal definition of a "child."

The definition of a "child" is different amongst the international texts and various States.52 The

United Nations Convention on Rights of Children (1989) defines a child as a person under 18

years of age. 53 Even though this definition is the most appropriate concerning child

pornography cases, it is evident that it is far from being adopted into national legislation. As

per Australian national law, a child is below the age of 18 years, while in other States, it is

below the age of 16 years for child pornography cases.54 Similarly, different jurisdictions in

46 Ibid (43) 435 47 Ibid (43) 435 48 Ibid (43) 438 49 Ibid (43) 439; see also examples of States such Afghanistan, Iran and Saudi Arabia do not have laws establishing

an age for sexual consent. Instead, the marriage permits an individual to sexually consent. 50 Rita Shackel, 'Regulation on Child Pornography in the Electronic Age: The Role of International

Law' [1999] 3(143) MacarthurLawRw <http://www.austlii.edu.au/au/journals/MacarthurLawRw/1999/11.pdf> a

ccessed 1 October 2021, 150 51 Ibid, 153 52 Ibid (50) 155 53 Convention on the Rights of Children (adopted 20 November 1989 UNGA Res 44/25 UNHRC) Art 1 54 Tony Krone, 'A typology of online child pornography offending' [2004] 1(279) Trends and Issues in Crime and

Criminal Justice <https://www.aic.gov.au/publications/tandi/tandi279> accessed 2 October 2021

12

the USA have different age limits for sexual consent, which is as low as 15 years where the

minor can consent for sexual activities with an adult. 55 However, the US federal child

pornography statute identifies a child as a person under the age of 18 years.56 This shows the

lack of global unanimity on how best to prevent and reduce the incidence of online child

pornography. This is due, in part, to the rich variance in how States define a child, both legally

and sociologically. The variation in the definition of child challenges the jurisdiction to enforce.

Multiple territories are affected by child pornography, and challenges have arisen due to the

nature of cybercrime. Chapter 2 will further discuss the jurisdictional challenges arising from

transnational child pornography in cyberspace.

Technological development and a large population having access to the internet have allowed

cybercriminals to avoid being detected or have a nationality or residence different from that of

the victim or territory where the crime took place.

To explain these conflicting jurisdictional issues in cybercrimes, the Council of Europe

established the Convention on Cybercrimes (hereinafter known as Budapest Convention) 2004.

This Convention defines a "minor" under Article 9 (3) as: "the term "minor" shall include all

persons under 18 years of age.57 A party may, however, require a lower age limit, which “shall

not be less than 16 years."58 This definition has a significant drawback. The problem, however,

with this Convention is that different States under their national law can identify a "child" as

either below the age of 16 years, 17 years, or 18 years. This difference will result in a clash

between States to enforce their jurisdiction. Let us consider an example to elaborate on the

issue above-mentioned: if the victim of pornography is 17 years of age and she is a national of

State A where a "child" is below the age of 18 years. The perpetrator is a national of State B,

where legally a "child" is defined as an individual below 16 years of age. In such a situation, it

becomes difficult to decide which State can enforce its laws and whether laws against child

pornography can be applied or not. Therefore, the existing means to address these issues are

limited in solving the jurisdictional challenges.

55 Ibid (50) 170 56 Steven J Grocki, 'Child Pornography' (General Information Child Exploitation and Obscenity Section, 28 May

2020) <https://www.justice.gov/criminal-ceos/child-pornography> accessed 10 September 2021 57 Convention on Cybercrimes (adopted 23 November 2001 Council of Europe ETC No. 185) Art 9(3) 58 Convention on Cybercrimes (adopted 23 November 2001 Council of Europe ETC No. 185) Art 9(3)

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A critical existing regional Convention for child pornography cases is the Council of Europe

Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse

(Lanzarote Convention). It has aimed at safeguarding children’s best interest through

prevention of abuse and exploitation, protection and assistance for victims, punishment of

perpetrators, and promotion of national and international law enforcement

cooperation.59 Under Article 3 of this Convention, "a "child" shall mean any person under the

age of 18 years."60 When comparing this framework with that of the Budapest Convention

mentioned above, it is evident that there is a divergence in a child's age. Furthermore, the

approach of these conventions is different. This is evident by the fact that the same regional

organization establishes these Conventions.

Furthermore, even in many States' existing regimes that ban pornography altogether, children

are still victimized. There is an apparent lack of national legislation against this crime, such as

Saudi Arabia, Iran, and Afghanistan. The age for sexual consent varies under different domestic

laws, ranging from 13 years of age to as high as 21 years. States like Iran and Afghanistan have

no age for sexual consent; instead, a marriage allows individuals to have sexual

intercourse.61 States that refrain from defining the age of consent under statutory law imply

that marriage is the permissible age. 62 Kalim critically highlights that a State's approach

towards "sexual based crimes" helps determine "how the State defines the age" for sexual

consent.63 Therefore, jurisdictional challenges arise even in States where the crime of child

pornography is not explicitly tackled under the national legislation. This challenge mainly

arises when the victim is a national or residing in a specific State’s territory or the perpetrator

is committing the crime from a different State or is a national of a different State.

There are conflicts functionally different ways of defining a child in various jurisdictions.

According to the Special Rapporteur's report on the sale of a child, child prostitution, and child

pornography, "Some States define a child as an individual under the age of 18, but others take

into account the age of criminal responsibility or the age of consent to sexual activity, which

59 Ibid (50) 170 60 Convention on the Protection of Child against Sexual Exploitation and Sexual Abuse (adopted 12 July 2007

Council of Europe CET No. 201) Article 3 61 The Week Staff, 'The ages of consent around the world' (The Week, 15 March

2021) <https://www.theweek.co.uk/92121/ages-of-consent-around-the-world> accessed 7 October 2021 62 Ibid (3) 63 Ibid (3)

14

may vary between 13 and 16." 64 This shows that the factors that define a child significantly

vary across jurisdictions65 and affect the investigation and prosecution of the case of child

pornography.

The Special Rapporteur, on the sale of children, child prostitution, and child pornography has

supported this argument and recommended in the 2009 report that it is essential to standardize

the age limit in States for the purposes of cases of child pornography. She further recommends,

"define, prohibit and criminalize child pornography on the Internet, in accordance with

international human rights instruments, defining a minor as a human being under the age of 18

years.:66 The Special Rapporteur also highlights that minors are not expected to give sexual

content for creating pornographic content or involved in pornographic activities.67 Based on

these recommendations, this thesis also argues that it is vital to establish a similar law amongst

all States to standardize the legal age of a child to consent to sexual activities, especially for

creating pornographic material.

Furthermore, the limitations in defining "child pornography" are analyzed in the next section.

2.4 Child Pornography

Child pornography is not a simple concept to define.68 This is because of the extensive nature

of internet child pornography. The internet has allowed child pornographic content to be

viewed by millions simultaneously worldwide. Multiple copies of the content are created once

uploaded onto the internet, and it is permanent. Perpetrators from different parts of the world

can view, download, send and receive these illegal contents.

Five international instruments address child pornography: (1) The Convention on the Rights of

the Child; (2) the Optional Additional Protocol on the Sale of Children, Child Prostitution and

Child Pornography; (3) the UN Protocol to Prevent, Suppress and Punish Trafficking in

64 UNGA ‘Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights

including the Right to Development’ UN HRC 20th Session Supp No 3 UN Doc A/HRC/12/23 (2009), para 55 65 Richard Wortley, Child Pornography. in Mangai Natarajan (ed), International and Transnational Crime and

Justice (2nd edn, Cambridge University Press 2019) 98 66 Ibid (64) para 124 (b) (i) 67 Ibid (64) para 124 (b) (ii) 68 Ibid (64)

15

Persons; (4) the Council of Europe Convention on Cybercrimes; and (5) the Council of Europe

Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse.

Child pornography contents are available in different forms. Additionally, the methods of

commission of the crime are also varied. This sub-chapter will discuss the forms of content and

the methods of crime.

2.4.1 Forms of Child Pornography

The Optional Protocol on Sale of Children, Child Prostitution, and Child Pornography under

Article 2(c) defines "child pornography" as "any representation, by whatever means… sexual

activities or any representation of sexual parts of a child for primarily sexual purposes.:69 This

definition is comprehensive, and it is left to the member States to draft national laws on various

categorizing of content that falls under child pornography.70

Gillespie has used Interpol's definition to categorize three broad forms of content, which

include "visual representation," 71 "written representation," 72 and "audio representation." 73

Some regional instruments, such as the Council of Europe Convention on the Protection of

Children against Sexual Exploitation and Sexual Abuse and the Draft African Union

Convention on the Establishment of Legal Framework Conducive to Cyber Security in Africa,

focus only on visual representations, primarily photographs. 74 Similarly, some domestic

legislations expressly mention non-visual contents under the definition of child pornography.75

1. Visual Representation

This category includes videos, photographs, morphed pictures, drawings, cartoons. Gillespie's

analysis focuses on understanding the implications of using fictitious visual content of child

pornography.76 Fictitious content might not harm a child in actuality, but there is a possibility

that it can lead to child abuse in real life. Morphed pictures discussed in his article highlight

69 Optional Additional Protocol on the Sale of Children, Child Prostitution and Child Pornography (adopted 25

May 2000 UNGA Res 54/263 UN HRC) Article 2(c) 70 Ibid (64) 71 Alisdair Gillespie, 'Legal Definitions of Child Pornography' [2010] 16(1) Journal of Sexual

Aggression <doi.org/10/1080/13552600903262097> accessed 30 May 2021 72 Ibid (71) 23 73 Ibid (71) 23 74 Ibid (3) 75 Ibid (3) 76 Ibid (71) 25

16

that morphed child's pictures into an adult individual's nude body or visa-versa.77 Gillespie

argues that "justification for pornography laws first being introduced was the fact that it was

considered to be, at the very minimum, the revictimization of the child depicted.:78

The criminalization of visual content by the State under domestic laws is crucial. This thesis

focuses on visual content (photographs and videos) where child abuse and victimization occur.

2. Written Representation

Gillespie mentions that most of the written material has mentions of extreme fantasies.79 This

written content involves depicting rape, kidnapping, and other sexual acts. He argues that the

law struggles to differentiate between pornographic fantasies from freedom of speech.80 Only

if a child in real life is involved in this written content is it easier for the authority to enforce

the law.

For this thesis, written representation is not considered of child pornographic contents as it is

an aspect of the law that needs separate detailed analysis. Additionally, written representation

may not involve a victim and different States have varied interpretation. This would go beyond

the scope of current research.

3. Audio Representation

Gillespie refers to Interpol, which explicitly mentions sound files, evidence suggesting that the

offenders use these files to arouse themselves sexually.81 Except for Ireland, there is minimal

domestic legislation that addresses the audio representation of pornographic

content.82 Gillespie argues that this field of law is discussed rarely due to the limitation of

deciding what audio contents can to be considered under illegal pornographic files. 83

77 Ibid (71) 25 78 Ibid (71) 25 79 Ibid (71) 26 80 Ibid (71) 26 81 Ibid (71) 26 82 Ibid (71) 26 83 Ibid (71) 27

17

Similar to written representation, the scope of research is limited to visual representation and

will not consider audios. There are many debates amongst scholars on audio representation and

the scope of this form of illegal content to fall under child pornographic content. 84

2.4.2 Methods of Child Pornography

There is no clear and elaborate definition of the act of child pornography. For this research, the

focus is on the visual contents of child pornography which includes both photographs and

videos. Various literature has identified the following methods of creating content and

uploading it onto the internet:

1. Creating visual content of trafficked victims

2. Visual content recording and live streaming of abusing children

3. Offenders view, upload, receiving and send pornographic content

4. Grooming leads to creating child pornographic content

2.5 Conclusion

This chapter concludes that it is crucial to determine who can be legally recognized as a “child.”

Similarly, an elaborate definition of “child pornography” is critical. If the recommendations of

international organizations are adopted into the national legislation to elaborately define “child

pornography,” a part of the jurisdictional challenge can be addressed. There is arguable too

much room for interpretation with the current broader definition, resulting in complex

investigations and prosecutions of the crime.

The next chapter will analyze the jurisdictional challenges based on various principles of

jurisdictions and how these principles affect the investigation and trial procedure of

transnational child pornography in cyberspace.

Thus, this chapter concludes that it is relevant to recognize child pornography as an offence by

all the States worldwide and the importance of implementing a standardized definition of the

84 Ibid (71) 27

18

crime. The next chapter will analyze the jurisdictional challenges in a child pornography case

resulting from the variations in definition.

19

CHAPTER 3: JURISDICTIONAL CHALLENGES

3.1 Introduction

“Jurisdiction” is a “government’s general power to exercise authority over persons and

things.”85 In other words, jurisdiction relates to the sovereignty of the States, and as “the power

States do have at any given moment of the development of the international legal system.” 86

Jurisdictional challenges arise in international law when a State, with the motive to protect its

interest in a foreign State, adopts its domestic laws to be implemented to a foreign State or

foreign individual. 87 The jurisdiction principle is one of the most critical and controversial

concepts under international law. It helps to determine how far “ratione loci, a State’s law

might reach.” 88 This principle ensures that States do not assert their power over the affairs of

a foreign State. In other words, the principle of “non-intervention and sovereign equality of

States” relates to customary international law. 89

Traditionally, crimes involve victim(s) and perpetrator(s) in a specific territory or location

geographically However, in cybercrime cases, there are many challenges in identifying the

geographical location of the committed crime. Unlike traditional forms of crime, cybercrimes

are not limited to the physical location, and it tends to go beyond a single sovereign territory.90

Additionally, looking at transnational child pornography cases, the act involves multiple

aspects that might occur over time in different locations. This creates difficulties in pinpointing

the exact location of the criminal act. These locations can involve the location where the act of

sexual offence was committed, the location where the content was uploaded on the internet,

and where an individual views, sends, or receives the content.

Thus, it is crucial to analyze the approach to determine which sovereign State would have

jurisdiction over a child pornography case and what elements should consider while deciding

such a claim.

85 Black Law's Dictionary (8th edn, St Paul, MN: Thomson/West 2004) 86 Cedric Ryngaert, Jurisdiction in International Law (2nd edn, Oxford University Press 2015) 5 87 Ibid (86) 5 88 Ibid (86) 8 89 Ibid (86) 8 90 Susan W. Brenner, 'Cybercrime Jurisdiction' [2004] 46(1) Crime Law and Social

Change <https://www.researchgate.net/publication/228796695_Cybercrime_jurisdiction> accessed 4 November

2021, 190

20

This chapter is divided into two parts. Firstly, the three recognized jurisdictional aspects under

international law are analyzed: jurisdiction to prescribe, jurisdiction to adjudicate, and

jurisdiction to enforce. Secondly, analyzing the principles of jurisdiction, that is, Personality

Principle, Passive Personality Principle, Protective Principle, and Universal Principles.

3.2 Principle of Reasonableness

The concept of reasonableness is crucial in establishing extraterritorial jurisdiction.91 In other

words, it is the rational reason taken by the State to claim jurisdiction.92 Various factors help

to decide the reasonableness in establishing jurisdiction. In cases of child pornography crime,

there are multiple parties involved, such as the victim(s), the perpetrator(s), the State and their

national legislations and, the international legal instruments. The scope of this research is to

analyze how the principle of reasonableness is interpreted to address jurisdictional challenges

and how the principle of reasonableness can be implemented to combat the crime of

transnational internet child pornography.

Sovereign power gives the State the authority to decide what acts are legal and illegal and what

acts are to be punishable under domestic laws.93 When an act is considered illegal under

domestic laws, the State’s sovereignty gives it the power to punish the perpetrators for

committing the crime.

3.2.1 Jurisdiction to prescribe

For a State to establish jurisdiction to investigate and prosecute a criminal act, the first step is

to establish the act as a crime under the national law.94 This is fundamental to criminal law. In

other words, when the State establishes jurisdiction to draft law against specific acts, it is

known as “jurisdiction to prescribe.” 95 The United States has defined “jurisdiction to

prescribe” under Section 401(a) of Restatement (third) of Foreign Relations Law of the United

States, as “to make its law applicable to the activities relations, or status of persons, or the

91 Ibid (90) 190; see also ibid (86) 168 92 Ibid (90) 190 93 Susan W brenner and Bert-Jaap Koops, 'Approaches to Cybercrime Jurisdiction' [2004] 4(1) Journal of

HighTech L <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=786507> accessed 4 November 202, 29 94 Ibid (118) 37 95 Ibid (86) 168

21

interests of persons in things, whether by legislation, by executive act or order, by

administrative rule or regulation, or by determination of a court.”

To exercise the jurisdiction to prescribe the territory and nationality of the

victim(s)/perpetrators(s) are the most common factors considered. 96 Concerning child

pornographic cases, which is a special circumstance, it is vital to apply reasonableness to

establish jurisdiction to prescribe.97

Jurisdiction to prescribe has a significant drawback upon application to cybercrime cases (child

pornography). Assume, for example, the victim is in State A and the perpetrator in State B. The

perpetrator grooms the minor victim to turn on the computer camera for sexual activity, and

the perpetrator records the video call. Now, the perpetrator uploads the video content from

State B onto the internet. In this case, if both States’ national laws have established the crime

of child pornography and given extraterritorial jurisdiction to these cases, then both the States

can apply the principle of jurisdiction to prescribe. State A can claim, the victim was within its

territory, and the commission of the offence was within its territory and affected one of its

citizens. On the other hand, State B can claim that the perpetrator and the computer were within

its boundaries, and the commission of the action took place within its territory as the recording

and uploading of the content was done from State B.

Similarly, on uploading the contents of child pornography onto the internet, it is further viewed,

downloaded, and sent to various individuals residing in different territories. The activities of

viewing, downloading, and sending child pornographic content are also considered illegal. The

perpetrators conducting these illegal activities might be residing in different sovereign

territories. To claim jurisdiction to prescribe becomes challenging in these circumstances.

States can argue that the State is obligated to protect the individuals in their territory from being

victimized.98 Additionally, the State can also claim its obligation to bring the perpetrators to

justice for the non-compliance of the law.99 Along with the examples mentioned above, all the

States involved or affected by the act of transnational child pornography cases can claim

jurisdiction to prescribe under the principle of reasonableness.

96 Ibid (93) 32; see also Ibid (118) 37 97 Ibid (93) 32; see also Ibid (118) 37 98 Ibid (93) 34 99 Ibid (93) 34; see also Ibid (118) 37

22

S.W. Brenner and Bert-Japp Koops have illustrated a similar cybercrime offence of cyber-fraud

and argued that State A (the victim’s location) would have more interest as the State can enforce

its national laws and therefore protect individuals within their territory from perpetrators

outside its territory.100

The challenge in claiming jurisdiction from the scenarios mentioned above is if the

perpetrator’s State does not recognize the viewing or downloading of child pornography, the

State is not obligated to investigate the case, bring the perpetrator to justice either within the

territory or expedite the perpetrator to another State. This loophole will enable perpetrators to

avoid prosecution, and the victims will continue to be harassed and victimized by the

perpetrators who are either residing in a State where the law is against child pornography is not

prescribed or by being a national of the State.

3.2.2 Jurisdiction to adjudicate

On establishing laws against an act, the States can then establish jurisdiction to investigate and

conduct a trial against an individual or a group of individuals for violating the State’s national

law. In other words, it is the ability under the sovereign power of the State to “subject persons

or entities to the process of its courts or administrative tribunals” as per the laws violated. The

United States has defined “jurisdiction to adjudicate” under Section 401(b) of Restatement

(Third) of the Foreign Relations Law of the United Nations as “to subject persons or things to

process of its courts or administrative tribunals, whether in civil or criminal proceedings, and

whether or not the nation is a party to the proceedings.”101

For a State to have jurisdiction to adjudicate, it must first have laws recognizing an act to be

illegal. States generally argues that it is reasonable to include the presence of the person

(victim/perpetrator) in the State’s territory, or the persons is domiciled or resident of the

territory or conduct business or similar activities in the State’s territory.102 This argument helps

in establishing extraterritorial jurisdiction over cybercrime.

Even though the principle of territoriality is a part of the jurisdiction to adjudicate103, it is

crucial to apply this principle to extraterritorial crimes due to the nature of transnational

100 Ibid (93) 35; 101 Ibid (93) 35 102 Ibid (118) 39; see also Ibid (86) 168 103 Ibid (118) 30; see also Ibid (93) 35; see also Ibid (5) 335

23

cybercrimes.104 S.W. Brenner and Bert-Japp Koops argue, taking examples of Koczowski105

and Sutcliffe106 case, that even though a part of the commission of the act was in a different

territory, the courts have applied the observations of jurisdiction to adjudicate based on the part

of the crime committed locally.107 They further contend that there are distinct ways in with

cross-border crime can be upheld under jurisdiction to adjudicate.

Similar to jurisdiction to prescribe, jurisdiction to adjudicate faces challenges when the laws

against illegal activities are not laid down under the domestic laws for the national courts to

interpret and pass a judgment.

In the case of child pornography, since multiple perpetrators in different geographical locations

are involved, it is crucial to make all the perpetrators accountable for the commission of the

crime. Since the evolution of cyberspace internet, there have been cases where perpetrators

view the content online, but they don’t download or send or receive the contents. In such a

situation, national legislation must draft stringent laws to punish the perpetrators even for

viewing the content from their location.

3.2.3 Jurisdiction to enforce

For a State to establish jurisdiction to enforce, it must first establish the jurisdiction to prescribe

and adjudicate. The United States has defined “jurisdiction to enforce under Section 401(c) of

Restatement (Third) of Foreign Relations Law of The United States as “to induce or compel

compliance or punish non-compliance with its laws or regulations, whether through the courts

or by use of executive, administrative, police or other non-judicial action.” In other words, a

State has the power to punish for the non-compliance of an individual(s) based on domestic

laws and regulations.

Roger O’Keefe highlights that a State’s consent is crucial to claim jurisdiction to enforce by

the other State. 108 He states that jurisdiction to prescribe and adjudicate can have an

extraterritorial impact, but the jurisdiction to enforce is strictly territorial.109 In the case of the

104 Ibid (5) 335 105 Ibid (93) 39; see also United States v. Kaczowski, 114 F. Supp. 2d 143, 153 (W.D.N.Y. 2000) 106 Ibid (93) 39; see also Director of Public Prosecution v Sutcliffe, [2001] VSC 43 (Victoria, Australia) 107 Ibid (118) 30; see also Ibid (93) 41 108 Roger O'keefe, 'Universal Jurisdiction' [2004] 2(1) Journal of Int Criminal

Justice <https://documents.law.yale.edu/sites/default/files/O'Keefe%20-%20Universal%20Jurisdiction%20-

%202004.pdf> accessed 10 November 2021, 738 109 Ibid (108) 738

24

police investigation and criminal courts jurisdiction, where the police cannot investigate a

crime committed in a different jurisdiction, the implementation of territorial jurisdiction is most

evident.110 Similarly, a court cannot take up a case from a different jurisdiction. In both these

examples, the police and the court can claim jurisdiction if the other State consents.111

The legality of enforcement is dependent on the domestic laws of each State. Roger also states

that the territorial aspect in criminal cases does not prevent the State from requesting the

suspect’s extradition from the State he/she is residing in.112

Multiple factors are analysed to establish jurisdiction in a child pornography case. Depending

on these factors, either the State can enforce jurisdiction on the case or consent to another State

to enforce it. If the substantive laws of the two States on child pornography crime are different

and the commission of the crime is different from the State’s national law, then there arises a

conflict between the States to enforce the law. These laws can be different based on the child’s

age, the material form of the pornographic content, or the definition of child pornography under

each of the domestic laws. Other factors can include inter alia the location of the commission

of the crime, location of the victim(s) or perpetrator(s).

The following section will further discuss the various factors determining the jurisdiction in a

transnational child pornography case.

3.3 Factors to be considered while dealing with Jurisdiction

The jurisdiction of cyberspace is a challenging concept for national and foreign courts.113

Cyberspace challenges the traditional jurisdiction issues with more than one conflicting

jurisdiction, unless it is considered an international space.114 It is vital to consider the basic

principles of jurisdiction in international law to apply to cybercrimes. The national courts can

adopt a uniform solution to investigate and prosecute cybercrimes such as child pornography

through these principles.

110 Ibid (108) 745 111 Ibid (108) 752 112 Ibid (108) 752 113 Darrel C Menthe, 'Jurisdiction in Cyberspace: A Theory of International Spaces' [1998] 4(1) Michigan

TeleCom and Tech L'

Review <https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1163&context=mttlr> accessed 11

November 2021, 88 114 Ibid (114) 88

25

Many factors are analyzed to establish the jurisdiction in a child pornography case. These

factors are not mandatory conditions. Instead, considering them for assessing whether the

principle of reasonableness can be applied to investigate and prosecute the case.115 Broadly,

dividing these principles into the location of the criminal act and the person's location (victims

and perpetrators).

3.3.1 Location of the Act

3.3.1.1 Subjective Territory

According to the subjective aspect of territorial jurisdiction, a sovereign has the power to adopt

laws against crimes that are physically committed within its territorial borders. 116 This

principle is one of the most vital and fundamental principles for criminal jurisdiction under

public international law.117 Subjective territoriality has relevance because of the availability

and presence of evidence of the commission of the crime118 in a specific geographical location.

Traditionally, this principle of jurisdiction is the most adapted to enforce the criminal laws for

the acts committed either in whole or in part within its geographical territory.119

Most national legislations follow this principle to apply jurisdiction to prescribe a law for a

criminal act. However, concerning child pornography, a cybercrime, the definition of the

principle of subject territoriality is narrow. Maillart, in his article, elaborates on the challenges

of principle. These challenges include the technical complications to trace the perpetrators of

cybercrime and “pinpoint the exact location of the crime”. 120 Unlike traditional crimes,

cybercrimes such as child pornography do not have material pieces of evidence such as

fingerprints and witnesses. The law enforcement officers have to trace the perpetrators using

computer data and information.121

115 Ibid (90) 192 116 Jean-Baptiste Maillart, 'The Limits of Subjective Territorial Jurisdiction in the Context of

Cybercrime' [2018] 19(1) ERA Forum <https://doi.org/10.1007/s12027-018-0527-2> accessed 15 November

2021, 378 117 Ibid (114) 92; see also Ibid (117) 382 118 Neil Boister, An Introduction to Transnational Criminal Law (1st edn, Oxford University Press 2012) 140; see

also Ibid (117) 382 119 Ray August, Computer Crime (1st edn, Routledge 2009) 536 120 Ibid (117) 382 121 Ibid (117) 383

26

Concerning traditional forms of crime, it is easy to determine the geographical location of a

criminal act. The location helps determine the jurisdiction of the State to take up the criminal

case. However, this is different in cases of cybercrime.

A transnational cybercrime such as child pornography can take place across various States’

territories. Child pornography is a crime of sexual abuse on a child, recording the content and

uploading it onto the internet which is available for anyone worldwide to view, download,

receive and send. As per international standards, all these acts are criminalized.

The Convention on Cybercrime Convention 2001 under Article 22(1)(a) emphasis the

relevance of the location of the act by stating, “Each State shall adopt such legislative… to

establish jurisdiction… when the offence is committed in its territory.” Nevertheless, the

challenge for cybercrime such as child pornography is establishing which State’s territory was

the crime committed. Since the cybercrime offences take place in multiple locations

simultaneously, it is a challenge to determine the jurisdiction of a State. Many scholars have

addressed this, and it is high time that the States amend laws regarding the jurisdiction in

cybercrime cases.

For several reasons, the territorial principle has lost its dominance, especially concerning child

pornography in cyberspace. Firstly, the development of technology has allowed international

cooperation in transnational criminal matters. 122 This enables the States to convict an

individual for the “crimes committed outside the State’s territory”. 123 International cooperation

will allow the States to take up the case to investigate and prosecute an offender in a foreign

land. Arnell further argues that the territorial principle undermines the prosecution of the

perpetrator by tying the individual to a geographical location124 when the child pornography

crime is transnational in nature.

In many circumstances of transnational crime, such as child pornography, the crime is initiated

and completed in different locations, which challenges the application of the subject

territoriality principle. International law has tried to resolve this by two different approaches.

The first is based on the “effect of the crime.”125 This is highlighted when the complete crime

122 P. Arnell, 'The Case for Nationality Based Jurisdiction' [2001] 50(4) Int'l & Comp L'

Quarterly <https://doi.org/10.1093/iclq/50.4.955> accessed 08 December 2021, 958 123 Ibid (123) 958 124 Ibid (123) 958 125 Anders Hemriksen, International Law (2nd edn, Oxford University Press 2019) 86

27

is not committed in one location, but some of the elements of the crime take place within a

specific jurisdiction. Second, international law against cybercrime has emphasized on

establishing jurisdiction over criminal acts committed abroad if they are initiated or executed

within a specific jurisdiction.126

In their article, S.W. Brenner and Bert-Japp Koops address the jurisdictional challenge by

giving an example. They state that even though the provider hosting the content or, in other

words, committing the act of sexual offence is in State A, but the material was uploaded from

a computer that was in State B.127 Then, the criminal act was commenced in State A and

concluded in State B.128 An argument against this, which is crucial, is the act does not end in

State B but continues every other State where the material is viewed or received.

Transnational cybercrime continues to occur until the content is available on the internet.

Unless the content is blocked or removed from the internet, the perpetrators will continue

viewing, downloading, sending, and receiving these materials. This will revictimize the victim,

and the State’s obligation to protect its citizens is unaccomplished.

3.3.1.2 Objective Territoriality

As per the objective territoriality principle, a State has the power to implement a criminal law

that is enforceable within its borders even if the offender commits the act outside its borders.

129 In other words, this principle is invoked when the effects of the crime are felt within the

State even the commission was in a different geographical location.

Under transnational cybercrime, objective territoriality applies as the offence has partly

occurred or the consequence of the crime within the jurisdiction of the State.130 States also

establish jurisdiction by expanding the scope of objective territoriality when no element of

crime took place within its borders, but the State felt significant harm due to the crime.131

Taking a case from The United Nations as an example where the Court of Appeal established

jurisdiction for a crime where the victim was a national The United Nations, but the crime did

126 Ibid (126) 86 127 Ibid (93) 32 128 Ibid (93) 32 129 Ibid (119) 140 130 Ibid (119) 140 131 Ibid (119) 141

28

not take place within the geographic territory of the State. In United Nations v Neil132, a 12year

US citizen was sexually violated on a non-American vessel in the territorial waters of another

State. In this case, the cruise commenced its journey from the US, and the victim filed a

complaint in the US. The US Court of Appeal established jurisdiction based on the objective

territoriality principle and argued that a significant harm was felt within its territory. In child

pornography cases, it is evident that similar facts as mentioned in the above case appear in

many circumstances. Since parties to a crime in a child pornography crime are from different

States and the commission of crime might be in a different location, States should apply

objective territoriality. Boister argues that many States are contented with establishing

jurisdiction where as a result of the crime, harmful effects are felt within its borders. However,

in cases where there is a less substantial consequence, there are more chances of other States

objecting to cooperate. 133 This is a limitation to the scope of interpretation of objective

territoriality in establishing jurisdiction in transnational child pornography cases.

3.3.2 Location of the Person

3.3.2.1 Victim

a. Protective Principle

The “protection of essential interests of the State” is the basis of the protective principle. 134In

the traditional sense, the application of this principle was to protect and safeguard the interest

of the State, such as national security, against crimes such as cybercrime, transnational

organized crime. These commission of these crimes are mostly in a foreign land, and the State

targeted for the attack would establish jurisdiction against the perpetrators under domestic

law.135

Two main arguments support this principle as an exception to “territorial and nationality of the

State.”136 First, State on a reciprocal basis is ready to compromise give up their power as a

territorial State or a State of nationality based on the Protective Principle of the other State.137

Second, in certain circumstances, the State with territorial or nationality preference might have

132 312 F3d 419 (9th Cir 2002); ILDC 1247 (US 2002); ibid (119) 141 133 Ibid (119) 143 134 Vaughan Lowe & Christopher Staker, Jurisdiction, in Malcolm N shaw, International Law (6th

edn, Cambridge University Press 2008) 666 135 Ibid (135) 666 136 Martin Dixon, Textbook on International Law (6th edn, Oxford University Press 2007) 152 137 Ibid (137) 152

29

no interest in investigating and prosecuting the case. Thus, the affected State can claim

jurisdiction so that the perpetrators would not go unpunished.138

Concerning cybercrime, many national laws outspread their jurisdiction over cybercrime

committed on a foreign land when it targets computer systems located within their geographical

territories.139 But this principle is of limited scope concerning the child pornography case. Even

though child pornography is a cybercrime, it does not affect the State's national security, and

the State cannot claim jurisdiction based on protective principles. Instead, the States should

claim jurisdiction based on the principle of passive nationality. This is discussed in detail in

the following sub-section.

b. Passive Nationality

The second principle under the victim category is “passive nationality principle.” The

nationality of the victim is its basis. Nationality is a reasonable ground for the States to establish

jurisdiction. This ground enables a State to establish jurisdiction to investigate and prosecute

an individual irrespective of their nationality for a crime they committed outside its territory

against the State’s national(s).140 States usually intend to protect their citizens even though they

are not physically present within the State's territory or if the crime was not committed. States

intend to protect their nationals in a foreign land against serious crimes including, human

trafficking and cybercrimes.

Menthe argues that the passive nationality principle is mainly avoided.141 Firstly, he mentions

that it is invasive for a State to insist on establishing jurisdiction based on the perpetrator’s

nationality. State’s law is insufficient to manage the case and protect citizens of other States.142

Secondly, States avoid tedious procedures.143 The victim is not the one being prosecuted.

Instead, it is the perpetrator144, who is not a national of the State, trying to establish jurisdiction

under this principle. This State will have to conduct investigation and prosecution and cannot

138 Ibid (137) 152 139 Ibid (137) 152 140 Ibid (137) 152 141 Ibid (114) 82 142 Ibid (114) 82 143 Ibid (114) 82 144 Ibid (114) 83

30

achieve the same without international cooperation which is, complicated in most

circumstances. Challenges in international cooperation are further discussed in Chapter 4.145

The nationality and location of the victim are two different scenarios. This is because the

victim’s nationality might be different from the location of the crime where an individual was

victimized. S.W. Brenner argues that since the victim's nationality is of less value compared to

the victim's location, it was the State's duty to protect the individual when he/she was victim

its territory from being victimized. 146

In a traditional scenario, the victim and the commission of the crime take place in the exact

location. In cyberspace, crimes on the internet such as child pornography do not presume the

concept that the victim’s location and the act’s location are the same.

Let’s take the example of a child trafficked for creating pornographic content. A perpetrator

trafficked a victim who is national of State A to State B. The pornographic content is created

by sexually abusing the child in State B, and the contents are uploaded onto the internet from

State B. In this circumstance, determining the victim’s location is difficult since the victim is

a national of State A. Even though the crime of trafficking took place in State A, sexual abuse

occurred in State B. In many circumstances, child pornography is a continuing crime in

cyberspace. Since it is a challenge to establish jurisdiction based on the location of the crime,

the States (with the victims’ nationality) must apply the passive nationality principle to

establish jurisdiction.

Various scholars have criticized this principle and objected to it for multiple reasons. First, it

is not common for a foreign court to establish jurisdiction for a crime committed by an

individual abroad and which is not seen as a threat to national security. Second, the nationals

of a State enjoy protection under the territory of the State. The exercise of jurisdiction based

on passive nationality principle would mean that "the territorial State cannot protect all its

inhabitants, including foreign nationals which was not accepted."147 Third, it is argued that this

principle would create uncertainty amongst individuals if an act is considered illegal under one

national law while legal under the other national law.148 This would make an individual liable

for an act committed against another even if the act was legal in the State where it is

145 Ibid (114) 83 146 Ibid (90) 198 147 Ibid (137) 155 148 Ibid (126) 88

31

commissioned while illegal as per the victim’s Nationality State.149 Fourth, the potential

suspect will not be able to foresee which State’s laws he is going against while committing an

act or might not be aware of the victim’s nationality.150 Fifth, This principle can create tension

between the States when an act is a crime under the victims’ State while not a crime as per the

offenders’ State. 151

The last criticism mentioned above is the most crucial for a case of child pornography. The

passive Nationality principle is vital to establish jurisdiction as the State has the duty to protect

its citizens. But the concern of tension between States also exists. Different States have various

approaches in this circumstance. Some States have adopted laws to claim jurisdiction over

cases based on the victim’s nationality. Germany has adopted universal jurisdiction, where

Germany can establish jurisdiction over a crime against a German national, irrespective of

whether “the crime is punishable in the State where it was committed” or the State where the

crime was committed has no criminal jurisdiction.152

Similarly, if a criminal act recognized by the State where it is committed is done against a

Belgian national, then as per the Belgium national law, the case would fall under Belgium’s

jurisdiction.153

These are notable examples where the States have protected their citizens against criminal acts

even in a foreign land. To protect the victims of child pornography and bring the perpetrators

to justice, the States must protect their citizens from all forms of criminal activities.

3.3.2.2 Perpetrator (Nationality Principle)

Active Nationality principle is when the State establishes jurisdiction based on the perpetrator's

Nationality154 States generally accept it worldwide to prosecute their citizens for committing a

crime, even on foreign land. 155 This is an inherent right of the State to enforce its jurisdiction

over its nationals even if all the elements of the crime were committed on foreign territory.156

149 Ibid (126) 88 150 Ibid (126) 88 151 Ibid (137) 153 152 Ibid (90) 30 153 Ibid (90) 30 154 Ibid (137) 290 155 Ibid (137) 290 156 Ibid (137) 290

32

As per “aut dedere” principle, the perpetrator's nationality is an essential factor in determining

the jurisdictional precedence in cases of traditional forms of crime.157 Historically, States could

maintain law and order within its territory by punishing those who commit the crime within

the State. This was easier for the States as the location of the victim, perpetrator, and the

commission of the act was all within its territory.

Different scholars have supported this principle for various reasons. First, it is vital for the State

to prevent its nationals from committing an act against the national laws of the nationality State

even though these acts were committed on foreign land. 158 Second, the State have a duty to

impose an obligation on its nationals for violation of laws, allowing the State to establish

jurisdiction for a crime committed within or outside its geographical territory.159

Cybercrimes have challenged this principle. States are obligated to protect their citizens against

threats within their territory and external threats. S.W. Brenner has elaborated this with an

example, where she illustrates that even though a perpetrator residing and committing the crime

in State A, the effects of the crime is felt in other States. 160 These acts disrespect the

“sovereignty of the other States.” 161 State A can claim jurisdiction by arguing that the

perpetrator resided in their territory while the act was committed. S.W. Brenner argues that the

injured State should be given precedence over the State that is not, and “nationality should

function as an inverse factor in the jurisdictional priority analysis”.162

In the Netherlands, child pornography is a crime punishable if the crime is committed by a

Dutch national, even in a different territory. 163 It is interesting to note if the perpetrator

committed a crime of child pornography before an he/was was given Dutch nationality, he/she

could still be prosecuted under Dutch law, and the Netherlands can claim jurisdiction over this

case.164

Another aspect regarding the claiming jurisdiction concerning the perpetrator's location in a

cybercrime case is the approach adopted by Singapore. Considering the laws in Singapore

157 Ibid (90) 204 158 Abemola Abass, International Law (1st edn, Oxford University Press 2012) 536 159 Ibid (159) 537 160 Ibid (90) 204 161 Ibid (90) 206 162 Ibid (90) 206 163 Ibid (90) 206 164 Ibid (93) 43

33

concerning cybercrime, “if, for the offence in question, the accused was in Singapore at the

material time,” then Singapore can claim jurisdiction over this case.165

These examples are relevant for transnational child pornography over the internet. The

Netherlands and Singapore approach is ideal for prosecuting perpetrators even though they are

not a national of the State where the crime was committed or received their nationality after

the commission of the crime. These laws will not allow the perpetrator to avoid the criminal

charges against them for the crime of child pornography.

3.4 Conclusion

The use of cyberspace has evolved over the years of its invention. Similarly, child pornography

printed in magazines and paper prints has also become a cybercrime as the contents are

uploaded and viewed in cyberspace. Child pornography has evolved into a transnational

cybercrime. One of the most significant challenges to addressing transnational cybercrime is

the jurisdictional issue.

As a result of the unique nature of transnational cybercrime where geographical borders do not

exist and continuing nature of child pornography crime, multiple States become parties to the

case. This chapter analyzed the various principle of jurisdiction based on reasonableness to

understand why each sovereign State must first establish a law against child pornography

(jurisdiction to prescribe) for the State to adjudicate and enforce the law. If a State is

establishing its jurisdiction, then other principles of jurisdiction will also apply based on the

location of the victim(s) and the perpetrator(s) and the location of the crime. These principles

are critical to analyze to understand which State can initiate the procedure to investigate and

prosecute the case of child pornography crime in cyberspace. According to the analyses, the

States are obligated to protect the victims, and also the State must also hold the perpetrators

accountable for unlawful activity.

Based on the geographical location of the act, two principles of jurisdiction can be applied:

subjective territoriality and objective territoriality. The subjective territoriality principle has

many limitations regarding child pornography crime such as the restriction to a single

geographical location. Thus, it is recommended to consider the objective territoriality principle

165 Ibid (93) 43

34

where the State felt the harm as a consequence of the crime, to imitate the procedure for

investigation and prosecution.

For establishing jurisdiction, the location of the victim is a crucial factor. As per the

observation, out of the two principles under this category, that is, the passive and protective

principle, the passive principle would play a more critical role in establishing jurisdiction in

child pornography cases. The reason highlighted for this is that the child pornography case

might not threaten the State’s security, but the State must protect their citizens.

Finally, the active nationality principle based on the nationality of the perpetrators is one of the

ideal examples recommended. The State is obligated to punish its citizens for crimes committed

within its territory and outside its territorial jurisdiction. Many States such as Netherlands and

Singapore have adopted laws to prosecute their citizens if they are suspicious of child

pornography in cyberspace.

Thus, this chapter concludes that all the principles of jurisdiction are crucial to be analyzed for

a State to establish jurisdiction for cybercrimes such as child pornography. For States to

accomplish their aim to investigate and prosecute the case of child pornography, they must first

implement national laws against the crime (as mentioned in Chapter 2), and there needs for

global cooperation amongst States. The next chapter will look into how the States need to

cooperate in investigating and prosecuting transnational child pornography in cyberspace.

35

CHAPTER 4: OVERCOMING JURISDICTIONAL CHALLENGES

4.1 Introduction

The investigation and prosecution of transnational child pornography of cybercrime require

judicial actions in a foreign State. These include apprehension of the suspect, extraditing the

suspect to stand trial and for investigation, summoning the witness, gathering and submitting

evidence, tracing, and seizing and confiscating assets. 166 States must rely on judicial

cooperation in transnational criminal matters. 167

The previous chapter highlights the challenges in establishing jurisdiction in transnational

cybercrime cases. This chapter will focus on how States once establish jurisdiction over the

case, coordinate with other States to extradite the perpetrators, provide mutual legal assistance,

and most importantly, cooperate in investigating and prosecuting the case.

4.2 Extradition

When a State has the jurisdiction to transfer an individual to a different jurisdiction, the process

is known as extradition.168 This is generally to stand trial for an offence committed by the

person. For a State to request another State to extradite a person, the requesting State must

imply extraterritorial jurisdiction. For a State to apply extraterritorial jurisdiction, the State

exercises its jurisdiction authority over offences beyond its geographical jurisdiction.169 The

term “extraterritorial jurisdiction” is only correct if the State establishes jurisdiction over

persons, activity, or property which has no territorial link with the establishing State, that is,

establishing jurisdiction based on the active or protective principle of the jurisdiction.170

Extraterritorial jurisdiction is vital in transnational crimes so that the criminals cannot escape

the laws with an excuse of the national borders or nationality claim. This principle of

166 Matti Joutsen, ‘Extradition and Mutual Legal Assistance’. in Mangai Natarajan (ed), International and

Transnational Crime and Justice (2nd edn, Cambridge University Press 2019) 294; see also ibid (119) 197 167 Ibid (167) 294; see also ibid (119) 199 168 Ibid (167) 294 169 Ibid (86) 7 170 Ibid (86) 7

36

jurisdiction allows the State to investigate, arrest, prosecute, and punish the offenders within

their State or extradite the criminals to another State for trial.171

There are two challenges regarding extradition and applying of exterritorial jurisdiction for

transnational child pornography cases. One, the treaty requires the offence to be criminalized

by both the requesting and requested State.172 As mentioned in Chapter 2, if the offence of

cybercrime, child, and child pornography are specifically mentioned under the domestic laws

of even one State, it would challenge the extradition request and be a ground for refusal by the

requested State. Thus, a clear and broad definition of the crime and criminalizing of the offence

is important for applying extraterritorial jurisdiction for extradition.173

The second challenge concerns the possibility of double criminality.174 Usually, there exists a

requirement for the act to be criminalized in both the States (requesting and requested

States).175 This requirement is further challenged by stating “whether the formal legal elements

or only the underlying conduct need to be the same in both parties.”176

Generally, it is seen that the States are unwilling to extradite its citizens to stand trial in a

foreign land. In a recent case where the Seoul Court of South Korea denied the extradition

request by the US of an offender who ran one of the biggest child pornography websites.177

The reason given by the Seoul Court is that on accepting the extradition request, the fight

against child pornography and the investigation into the case by the Korean authorities would

be affected.178 Additionally, it is important to note that US authorities pointed out that there are

lighter punishments for child pornography cases in South Korea than the US .179 But Seoul

Court argued that “sending a criminal to a State where he or she faces tougher punishment is

not the purpose of the convention of extradition.”180 In such a circumstance, it is crucial for the

domestic courts rejecting extradition to make sure that the local authorities and the prosecution

fast-track the case and bring the perpetrators to justice. If not, the purpose of rejecting

171 Ibid (119) 215 172 Ibid (119) 217 173 Ibid (119) 218 174 Ibid (167) 296 175 Ibid (119) 218 176 Ibid (119) 218 177 Yonhap News Agency, “(3rd LD) Court rejected extradition request by U.S. for child porn site operator’

(Yonhap News Agency, 6 July 2020) < https://en.yna.co.kr/view/AEN20200706001053315> accessed 20

December 2021 178 Ibid (177) 179 Ibid (177) 180 Ibid (177)

37

extradition will not be accomplished, and it will give the perpetrators a free card to continue

committing crimes.

Another reason the States give to reject extradition is based on the uncertainties of the process

of the foreign courts and the disadvantages the perpetrators would face when defending

themselves.181 It is based on the State's obligation to protect its citizens.

If the States refuse to extradite based on the grounds mentioned above, the State is also

obligated to bring the perpetrator to justice within the domestic courts. 182 Another option that

the courts can take is as per the Palermo Convention, where if the extradition is accepted, then

the national, if found guilty, should be returned to the home State to serve a sentence.183

Many States have agreed on bilateral and multilateral agreements with respect to transnational

crimes, such as narcotics crime.184 Even though extradition is at the discretion of the requested

State185, it is crucial to understand that child pornography is a transnational cybercrime, just

like narcotics crime. To fight against this crime, all the States must cooperate with each other

to extradite or prosecute the perpetrators for not only creating the contents or platforms for

uploading the contents but also for viewing, downloading, and sharing.

Some States argue that it is wary of establishing criminal jurisdiction over the crimes by

individuals in foreign territory as it may be seen as a proclamation of sovereignty. Additionally,

the States also claims that this would be unfair to the individual as they might not have legal

rights in the State that established jurisdiction and have no influence on the law they are

subjected to. 186 This thesis argues that the States should avoid using the argument for not

claiming jurisdiction over child pornography cases. Child rights are globally accepted human

rights, and it is essential to prosecute the perpetrators who sexually abuse these victims and

record these contents to create a community and encourage others to commit this heinous

crime. When States are inclined to use the argument mentioned above, they should first

consider the victim's rights and the obligation to protect them before considering issues

regarding sovereignty.

181 Ibid (167) 296 182 Ibid (167) 296 183 Ibid (167) 296 184 Ibid (167) 295 185 Ibid (119) 230 186 Ibid (119) 230

38

To avoid unrestricted sovereign discretion to establish jurisdiction, it has been recommended

that extraterritorial jurisdiction is permissible if the extradition requesting State can identify a

‘reasonable,’ ‘proportional,’ or ‘substantial’ connection with the interest to pursue the case.187

4.3 Mutual Legal Assistance

Cyberspace has challenged the traditional principles of jurisdiction. Since cyberspace has no

borders, it is evident that crimes are committed across different geographical locations. It has

also enabled the perpetrators to stay anonymous and hide the evidence or made it difficult for

the law enforcement agencies to trace the evidence.

Due to the transnational nature of child pornography in cyberspace, States are required to rely

on ‘formal and informal’ methods.188 Informal collaboration is based on police support from

different jurisdictions, while formal collaborations are based on the bilateral and multilateral

agreement on mutual legal assistance. 189 United Nations Office on Drugs and Crime, 2012

defines mutual legal assistance as “a process by which States seek and provide assistance in

gathering evidence for use in criminal cases.”190

The Palermo Convention mentions the following forms of mutual legal assistance191: taking

evidence or statements of persons; service of judicial documents192; execution of search and

seizures193; freezing of assets194, examination of objects and sites195; provision of information,

evidence and expert evaluations196; provision of originals or copies of government, bank,

financial, corporate or business documents or records 197 ; identification of or tracing the

proceeds of crime198; facilitation of the voluntary appearance of persons in the requesting State

187 Ibid (119) 231 188 Sabine K witting, 'Transnational by Default: Online Child Sexual Abuse Respects No

Borders' [2021] 29(3) The International Journal of Children's Rights <https://doi.org/10.1163/15718182-

29030010> accessed 13 November 2021, 735 189 Ibid (189) 735 190 Ibid (189) 742 191 Ibid (167) 295 192 Ibid (167) 295 193 Ibid (167) 295 194 Ibid (167) 295 195 Ibid (167) 295 196 Ibid (167) 295 197 Ibid (167) 295 198 Ibid (167) 295

39

party199; and any other type of assistance that is not contrary to the domestic laws of the

requested State.200

Only by establishing jurisdiction to adjudicate can the State start investigating the case of child

pornography. As a result of the transnational nature of the crime, the States have to coordinate

with each other to gather all the evidence, even from other territories which are not under the

jurisdiction of the State initiating the investigation. Thus, if State A starts to investigate

transnational child pornography crime with State B, both States must agree on the procedure

to investigate and later prosecute the perpetrators.

It is essential to highlight that the three main conventions targeting child pornography crime,

that is, UN Convention on the Rights of the Child’s Optional Protocol on the sale of children,

child prostitution and child pornography, the Budapest Convention and the Council of Europe

Convention on Protection of Children against Sexual Exploitation and Sexual Abuse, has

required the States to regulate the crime by establishing jurisdiction, mutual legal assistance,

and extradition.201

Witting and Maillart, in their articles, have similar arguments on the challenges surrounding

mutual legal assistance.

Firstly, traditional mutual legal assistance was developed in the 1970s202 when cyberspace

crimes were not very common. It is thus crucial to develop this emerging field of crime, and

the laws need to be amended with the development of the crime.

Secondly, this process is time-consuming and cumbersome.203 Generally, when a State requests

extradition from another State under the Cybercrime Convention, it takes about 6 to 24

months204 for the entire procedure. This slow process allows the perpetrators to erase evidence

from cyberspace or hide the contents to a more secured server, further hindering the

investigation procedure. Another challenge the investigation team can face with the slow

process is when the perpetrators can transfer these documents to a different server which is still

199 Ibid (167) 295 200 Ibid (167) 295 201 Ibid (189) 735 202 Anna Maria osula, 'Mutual Legal Assitance & Other Mechanism for Accessing Extraterritorial Located

Data' [2015] 9(1) Masaryk University Journal of Law and

Technology <https://ccdcoe.org/uploads/2018/10/Research_A-M.Osula_2015.pdf> accessed 24 December 2021,

45; see also Ibid (189) 758 203 Ibid (189) 758; see also ibid (179) 378 204 Ibid (189) 758; see also ibid (179) 380

40

not a party to this case.205 This will lead to another State being involved, and the procedure for

mutual legal assistance needs to be followed, which further delays the procedure and a delay

in justice.

Thirdly, Witting points out different legal procedures on the national level for mutual legal

assistance,206 leading to issues for extradition and other assistance. This thesis will not dive

into different national legal procedures, but it is evident that many States do not have specific

procedures207 for cybercrimes, especially for the transnational nature of child pornography in

cyberspace. Additionally, Witting also points out that many States are not members of

cybercrime specific treaties which also hampers the investigation and prosecution of the

case.208

Fourthly, Maillart highlights the challenge when the perpetrators use the cloud software in

cyberspace to store data and the contents of child pornography. It is hard for the investigators

to pinpoint the exact location of the contents on the cloud, which makes the law enforcement

officers’ job to investigate a lot harder and the cooperation of the States becomes difficult. In

such a scenario, the investigators are in a dilemma deciding which State to request assistance.

209 Thus, “if investigators do not know where the data are stored, they cannot file an application

for mutual legal assistance because they do not know which States to file it with”.210

Lastly, the challenge is regarding the language of the request sent by the requesting State to the

requested State. This is a concern raised by States for the delay due to the cost of translations,

quality of translations, and unclear legal terminologies.211 This challenge is hard to tackle

unless the States agree to use one of the UN official languages while drafting the request for

mutual legal assistance.

205 Ibid (179) 380 206 Ibid (189) 742 207 Ibid (189) 742 208 Ibid (189) 745 209 Ibid (179) 385 210 Ibid (179) 385 211 Ibid (179) 386

41

4.4 International Cooperation

The evolution of traditional crimes to cyberspace has affected how the case is investigated and

prosecuted. Child pornography in cyberspace has been accepted as a transnational crime by

many States around the globe. Jurisdictional challenges are addressed and analyzed by many

scholars. Their research focused on the rights of the victim, sovereign powers of the State

concerning prosecuting foreign criminals, jurisdictional challenges in cybercrime cases,

jurisdictional challenges in transnational crimes. However, international cooperation has been

one of the main recommendations by all these scholars.

A transnational crime such as child pornography in cyberspace can only be curbed by

cooperation between States. When States object to claims and requests made by the other State,

it indicates a failure to protect the interest of the victims, and it also creates an opportunity for

the perpetrators to escape justice and continue committing the crime.212

States have the most critical role in identifying and commencing the proceedings against

transnational crime through international cooperation. States can also involve other

stakeholders such as NGOs, individuals, IGOs to engage in policymaking213 to fight against

child pornography and hold the offenders accountable.

The laws must be substantive, and development in procedural laws is also crucial. 214 For a

State to establish jurisdiction to enforce, it must first establish jurisdiction to prescribe and

adjudicate. For example, an individual is responsible for opening a new website in cyberspace

for others to upload pornographic content of children. This individual is a national and resident

of State A. However, State B had substantial harm since many of the victims were nationals

and residents of State B. State B can only establish jurisdiction to enforce if it has prescribed

extraterritorial jurisdiction to transnational crimes, cybercrimes, or child pornography under

the national legislation. State A can object to State B’s extradition request or mutual legal

assistance request if State B has not established laws against this act.

212 Ibid (119) 198 213 Ibid (119) 198 214 Ibid (119) 198

42

4.5 Conclusion

In conclusion, once the States establishes jurisdiction to investigate and prosecute the child

pornography crime, it must claim extraterritorial jurisdiction. The State can claim

extraterritorial jurisdiction by requesting the other State to extradite the perpetrator for further

investigation, gathering evidence, and prosecution.

This chapter discusses the limitations of extradition and the grounds for refusal of an

extradition request by the States. This thesis argues that child rights should come as one of the

most crucial duties of the State, and the States are obligated to protect their citizens, especially

children. Thus, if the States refuses extradition, it must prosecute the perpetrator within its

jurisdiction so that the perpetrator does not avoid prosecution.

The second part talks about mutual legal assistance the States have to provide each other. This

is a crucial but also highly complex process. Many scholars have highlighted the limitations

of this process.

International cooperation plays a significant role in overcoming the limitations of extradition

and mutual legal assistance. This has been elaborately explained in the third part. States can

cooperate with each other to establish jurisdiction and protect children from these heinous

crimes and prosecute the perpetrators.

43

CHAPTER 6: CONCLUSION

Cyberspace is a sizeable international space consisting of networks and computer devices.

Crimes in cyberspace are known as cybercrimes. In other words, the traditional forms of crimes

have evolved into crimes in cyberspace and are known as cybercrimes. These crimes go beyond

national and international borders, and various jurisdictional challenges are raised, which one

State cannot address alone.215

To deter this crime by investigating and prosecuting the suspected offenders, the international

community (States and international organizations) must collaborate amongst each other at the

global level. 216

Chapter 1 concluded that the legal definition of “child” and “child pornography” varies among

national laws and various international conventions. Under specific national laws, the age to

consent for pornographic content is higher than the age of sexual consent, leading to children

being forced into creating pornographic content. On the other hand, some States only consider

specific forms of child pornographic content, such as only visual content, while others consider

all forms of content (visual, written, and audio). Both the varying interpretation and definition

of “child” and “child pornography” lead to challenges and limitations by States to establish

jurisdiction.

Chapter 2 continued to discuss the jurisdictional challenges in cybercrime (child pornography)

by discussing various principles of jurisdiction. This chapter concluded that all the principles,

that is, principles based on the location of the person (victim(s) and perpetrator(s)) and the

location of the crime, are critical to determining the jurisdiction in cybercrime. Concerning

victim(s), the protective principle might not play a crucial role in cybercrime cases, but the

States can establish jurisdiction based on the passive nationality principle. On the other hand,

the States can claim jurisdiction applying the active nationality principle where the

perpetrator’s nationality State can establish jurisdiction. Additionally, in the traditional sense,

the location of the crime played a role in the criminal jurisdiction, but it is challenged in a child

pornography cybercrime case. The subjective territoriality principle is limited in cybercrime,

but objective territoriality can be applied to establish jurisdiction.

215 Alex Alexandrou, ‘Cybercrime’. in Mangai Natarajan (ed), International and Transnational Crime and

Justice (2nd edn, Cambridge University Press 2019) 62 216 Ibid 62

44

To address these jurisdictional challenges, Chapter 3 discusses the importance of international

cooperation. Cyberspace has made the issue of child pornography an international issue and

not just a domestic concern. 217 The investigation process might commence in one State, but

the continue with the investigation, the law enforcement officers have to move onto the

jurisdiction of the other State. 218 This evidently shows the requirement of international

coordination amongst different departments of the various States.

With the growth of transnational crime, international corporation by extradition through

bilateral and multilateral treaties and mutual legal assistance has assumed more importance. 219

In transnational child pornography in cyberspace, many authorities, such as law enforcement

officers, defence and prosecution counsels, and judges, are no longer within the same

jurisdiction.220 They rely on cooperation amongst each other and by the States. 221 Without the

understanding between States and these authorities, the victim would never get justice for the

crime against them, and the perpetrators would walk free and continue to commit these crimes.

The Special Rapporteur on the sale of children, child prostitutes, and child pornography

recommends that a holistic approach be adopted to fight against crimes facilitated through

technology. 222 This thesis concludes agreeing with the recommendations on the international

corporation as States by various General Assembly sessions. These recommendations include:

ratifying to all relevant regional and international instruments regarding child pornography

cybercrime;223 consistent practices and legal procedures to investigate and conduct trials for

these cases;224 assisting with multilateral, regional, and bilateral programs;225 widening the

definition of child pornography under the national laws;226 drafting multilateral and bilateral

agreements for smooth police investigation.227

217 Richard Wortley, ‘Child Pornography’. in Mangai Natarajan (ed), International and Transnational Crime and

Justice (2nd edn, Cambridge University Press 2019) 100 218 Ibid 100 219 Ibid (218) 101 220 Ibid (218) 101 221 Ibid (218) 102 222 Ibid (3) 223 Ibid (64) para 55 224 Ibid (64) para 55 225 Ibid (64) para 55 226 Ibid (64) para 55 227 Ibid (64) para 55

45

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