The United States presently claims the authority to project its criminal laws beyond its territorial borders. Indeed, the United States now extends aggressively its criminal laws to activity occurring halfway around the globe. Yet this energetic boom of extraterritorial jurisdiction throws into sharp relief a variety of opposing legal interests: most prominently, those of the foreign individuals to whom the United States subjects its laws.
On a number of high-profile cases involving Russian defendants in the U.S., including Konstantin Yaroshenko and Viktor Bout, the American Justice Department takes the position that Congress has the authority to enforce its laws beyond the territorial boundaries of the United States when either the explicit or apparent intent of Congress is that a statute apply extraterritorially. In agreeing with these myopic arguments some courts have recently ruled that no principle supports the invocation of constitutional or international law limitations on the extraterritorial application of federal laws. Yet, these tribunals ignored the overwhelming weight of jurisprudence addressing extraterritorial jurisdiction and stepped back a hundred years to place themselves at loggerheads with the rulings of other national and international courts. The reasoning some U.S. courts employ are legally suspect, and the results of their flawed decision are disturbing.
Consistent with Court decisions, there are at least four levels of limitation that international law and the U.S. Constitution impose on extraterritorial jurisdiction. Most obviously, the United States, as any other country, may extend its jurisdiction only in accordance with the five jurisdictional principles under international law.
Limitation I: The Five Bases of Extraterritorial Jurisdiction
The first basis is territoriality jurisdiction. Territorial jurisdiction is divided into two parts: the subjective territorial principle and the objective territorial principle. The subjective territorial principle permits jurisdiction over acts that take part wholly or partially within a state’s territory. The objective territorial principle, on the other hand, authorizes jurisdiction when the result of a criminal act has effects in or impacts the state asserting jurisdiction, even if no acts occur within that state.
Second, the nationality principle permits states to assert jurisdiction over their citizens for crimes committed in a foreign country.
The third basis for jurisdiction is passive personality. The passive personality principle permits countries to assert jurisdiction over individuals who commit criminal acts that harm citizens of the country asserting jurisdiction.
Fourth, the protective principle provides jurisdiction over offenses committed completely outside the territory of the state exercising jurisdiction when the crime “poses a danger of causing an adverse effect on a state’s security, integrity, sovereignty or important governmental function.”
Fifth, universal jurisdiction permits any state to prosecute a limited range of internationally condemned acts that violate jus cogens norms.
Each of these principles has its own limitations. For example, under the objective territorial principle, the U.S. cannot prosecute a defendant for a thwarted conspiracy, if no acts of that conspiracy occurred within American jurisdiction. As for the passive personality principle, the defendant had to be actually aware that the people his acts would harm will be Americans. Yet, there are more limitations on extraterritorial jurisdiction that come from the U.S. Constitution.
Limitation II: Constitutional limits on extraterritorial jurisdiction
While important Supreme Court decisions involve questions of statutory construction centering on congressional intent that a statute apply extraterritorially, scant attention has been paid to the power of Congress in the first instance to regulate conduct abroad under its various sources of legislative authority. But with increased globalization and the aggressive stance Congress has taken in regulating conduct abroad, these types of issues have come swiftly to the forefront.
Offences Against the Law of Nations
Article I, section 8, clause 10 of the Constitution grants Congress the power “[t]o define and punish ... offences against the Law of Nations.” In modern times, U.S. courts have concluded that the term the Law of Nations in the Offences Clause means customary international law. Congress cannot overstep customary international law when acting pursuant to the Offences Clause. The U.S. legislature, as such, is not empowered to think up new offences against international law when proscribing something under the Offences Clause. This is significant because neither terrorism nor drug trafficking are illegal as a matter of customary international law.
The Foreign Commerce Clause
Congress can pass legislative enactments targeting conduct abroad under the Article I, Section 8 power “[t]o regulate Commerce with foreign Nations.” This power has begun only recently to catch the attention of defendants, courts and commentators. Yet, it is clear that Congress may not regulate conduct that bears a relationship only to foreign commerce generally – for example, exploding a bomb on an “instrumentality” of foreign commerce facilitating travel within India or even between India and Pakistan – but not to U.S. commerce specifically.
The Treaty Power
Another source of authority for extending U.S. law abroad is located in the combination of Congress’s Necessary and Proper power and the Executive’s Article II Treaty Power.
However, the Necessary and Proper Clause standing alone does not provide any basis for extending the application of the statute extraterritorially. The Supreme Court established that Congress can use its Necessary and Proper authority in conjunction with its Foreign Affairs Power to criminalize acts that violate customary international law and are related to U.S. foreign affairs. The statutes passed under the Treaty Power may be projected extraterritorially only with the aid of the Foreign Affairs Power and thus subject to the limitations that the latter un-enumerated grant of authority places on Congressional action.
Foreign Affairs Power
Finally, Congress also probably has the authority to legislate extraterritorially pursuant to what is generally referred to as its “foreign affairs power.” The foreign affairs power locates in the government’s inherent powers over foreign affairs that do “not depend upon the affirmative grants of the Constitution” but instead “have vested in the federal government as necessary concomitants of nationality.” The fount of inherent federal foreign affairs power is “the law of nations,” and from this proposition, it follows that “operations of the nation in [foreign] territory must be governed by ... the principles of international law.” As such, because international law generates the foreign affairs power, that power reciprocally must obey international law.
Limitation III: Fifth Amendment Due Process and Extraterritorial Criminal Jurisdiction
The Fifth Amendment’s Due Process Clause mandates that “[n]o person . . . be deprived of life, liberty, or property without due process of law.” This Clause protects individuals from invalid applications of facially valid federal legislation. There are two views of how Fifth Amendment due process impacts extraterritorial prosecutions: the nexus test, and the notice test. Under the nexus test, due process requires a territorial nexus between the proscribed conduct and the United States. The notice test holds that due process requires only notice to the defendant that his conduct is illegal.
Limitation IV: Principle of Non-intervention
In addition to all other limitations on extraterritorial jurisdiction, there is also one other mechanism that prohibits the U.S. from extending the reach of its laws into foreign territory if extraterritorial application of American statutes would interfere with the sovereignty of another state. The structure of the American Constitution, which sets up the outer limits of federal lawmaking authority relative to sub-federal units, militates in favor of holding that the extraterritorial application of American law in the international realm is constrained by the duty of non-intervention. The structural features of the U.S. Constitution, coupled with the fundamental principle of non-intervention found in the Law of Nations, lead to the conclusion that the sovereignty of other states must not be violated. In this respect, the U.S. Constitution sets up a balance between state sovereignty and the primacy of the federal government through the Tenth Amendment. U.S. Const. amend. X.
Altogether, there are at least four separate limitations on the exercise of extraterritorial jurisdiction by the United States.
by Alexey Tarasov, attorney at law
