Dan E. Stigall of the U.S. Department of Justice, Office of International Affairs has posted a new article on SSRN, International Law and Limitations on the Exercise of Extraterritorial Jurisdiction in U.S. Domestic Law, recently published in 35 Hastings Int'l & Compar. L.Rev. 323 (2012). His discussion of the federal circuit split in this area is particularly helpful, a great contribution to the literature in this area. Very worthwhile reading, with a helpful survey of the relevant cases from each circuit.
Here is the SSRN abstract:
With the dramatic rise in the frequency and scope of transnational criminal activity and the modern phenomenon of globalization, the interrelationship between international law and U.S. domestic law has come into sharper focus. From issues relating to international terrorism to more banal matters with distinct international dimensions, national courts in the modern era find themselves deciding cases with significant international elements and which have the potential to impact relations between sovereigns on the international plane. One area which is implicated across a broad range of legal topics and which has a natural propensity to affect international relations is the assertion of extraterritorial jurisdiction. This is due to the inherently conflict-generative nature of extraterritoriality. In grappling with the need to address transnational issues in the context of a national legal system, domestic courts have increasingly looked to international legal principles, resulting in a level of penetration of international law in the national legal order. This Article explores the degree to which international law has permeated U.S. jurisprudence governing the exercise of extraterritorial jurisdiction over transnational criminal activity and the degree to which international law has been used by U.S. courts to limit or empower extraterritorial jurisdiction. Specific focus is given to the interrelationship between the limits imposed by international law, such as the “rule of reasonableness,” and due process limitations imposed by U.S. courts. In reviewing a broad spectrum of U.S. judicial decisions, this Article demonstrates that the justifications for and against the exercise of extraterritorial jurisdiction in U.S jurisprudence are multifarious, revealing distinct analytical strata that are dependent upon the nature of the law being applied extraterritorially and the conduct regulated. For instance, regulatory laws impacting commercial markets have been made the subject of an analysis that is distinct from analysis applied to other forms of transnational criminal activity. Moreover, due to a split in U.S. jurisprudence, the analysis applied to that latter group of transnational crimes (those that do not impact international commercial markets), will further depend upon the judicial district. This Article posits that the different approaches to these different sorts of legislation are entirely justifiable (and even logically necessary) due to the very obvious differences between civil actions involving U.S. antitrust law and criminal statutes that take on a transnational focus. Moreover, by understanding the role international law plays in each of these analyses, the similarities of the undergirding rationales, as well as the differences and potential dangers, policymakers and legal actors can work to clarify this otherwise discordant and fractured legal landscape and articulate a unified view of international law and limitations on the exercise of extraterritorial jurisdiction in U.S. domestic law.
In Section VII (pp. 347-71), Stigall delineates the current split among federal circuits in this area of law. The Second, Fourth, and Ninth Circuits have ruled (with somewhat distinct ways of arriving at their conclusion) that the extraterritorial application of U.S. criminal law requires a nexus to the United States.
In contrast, the First, Third, Fifth, and Eleventh Circuits do not interpret the Due Process Clause of the Fifth Amendment to require a nexus between a defendant and the United States in order for the United States to exercise extraterritorial jurisdiction over a defendant. Rather, for these circuits, extraterritorial application of a U.S. criminal statute will not violate due process so long as the exercise of jurisdiction is not arbitrary or fundamentally unfair.
- Dru Stevenson