APPLYING U.S. ANIMAL LAW EXTRATERRITORIALLY TO IMPROVE ANIMAL WELFARE STANDARDS ABROAD AND AVOID A RACE TO THE BOTTOM.

• Author: Paschke, Megan

INTRODUCTION

Gaps in animal law, both state and federal, have led to decreasing animal welfare in a globalized society. Animal welfare is increasingly threatened by international trade and differing standards of countries who import and export animals for all sorts of reasons, particularly consumption. This mismatch of differing and decreasing standards and laws abroad creates a race to the bottom where international trade and investment turns to countries with lower costs and standards. In animal law, these lower costs are often at the sake of animal welfare because countries entering the market sacrifice their standards in production to produce goods at a more competitive price. This race to the bottom, in both cost-reduction to maximize profits as well as animal welfare, will continue indefinitely unless United States (U.S.) law can be applied in a robust extraterritorial manner to equalize production standards and improve animal welfare internationally.

In contrast to the domestic equivalent of conflicts of law between U.S. states, extraterritorial law addresses conflicts between U.S. federal law and laws of other jurisdictions. (1) The concept of extraterritorial law describes a way a country, such as the U.S., can achieve its foreign policy goals by applying domestic laws to control the activities of other States beyond its territorial borders, usually by controlling or prohibiting the importation of items produced in those States. (2) Under the U.S. Constitution, jurisdiction for extraterritorial law arises from the power of the federal government "[t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes[.]" (3) The question of whether federal courts should apply law extraterritorially arises when a violation of a federal statute occurs in another country's jurisdiction. (4)

Extraterritorial Jurisdiction Framework

Doctrines of Jurisdiction Allow for Extraterritorial Law

International law is based in State sovereignty; the concept that States are formally equal and can create laws based on persons or activities in which they have legal interest and are also often described as States using their jurisdiction "prescriptively." (5) To understand how one country's law can be applied to persons and situations that may not be within its borders, it is first necessary to look to the established doctrines of jurisdiction in international law, such as principles of criminal law and the territorial principle.

First, States can exercise jurisdiction extraterritorially based a variety of principles relevant predominantly in criminal law. These principles include jurisdiction based on the ties of the citizens to their nationality, encompassing the active and passive personality principle. The active personality principle allows States to exercise jurisdiction over their nationals perpetrating offenses even when they are abroad, while the passive personality principle allows States to exercise jurisdiction over their nationals that are victims to crime abroad. (6) The protective principle ad dresses political independence by allowing States to assert they have authority over matters that constitute a threat to State security. (7) In contrast, the universality principle assesses jurisdiction based on the seriousness of the crime; some crimes such as piracy, war crimes, crimes against humanity, and genocide are considered serious enough to be tried internationally. (8)

Second, the territorial principle gives States complete and absolute jurisdiction over people, property, and events in that State's territory. (9) Territorial jurisdiction contains an objective component, where the State has jurisdiction over acts completed within its territory, and a subjective component or "effects" doctrine, where the State has jurisdiction over acts initiated within its territory, but completed or causing effects in another. (10) In criminal law, the territorial principle allows the exercise of jurisdiction by one country as soon as an element of the crime occurs in its territory, however, exterritoriality is applied more liberally in economic and environmental law. (11) In environmental law, international courts look at if a significant nexus between the regulator and the object of regulation is present. (12)

Using the Territorial Principle for Extraterritorial Law in the United States

In the U.S. context, the territorial principle has been used to create extraterritorial jurisdiction. When conduct that is a violation of U.S. law occurs wholly or substantially within U.S. territory, the Supreme Court has presumed extraterritorial application of the law should not apply and rather, applies direct territorial law. (13) When conduct that is a violation of law occurs outside of U.S. territory, but "has or is in tended to have substantial effect within its territory[,]" the U.S. has prescriptive territorial jurisdiction. (14) This prescriptive, or "effects" jurisdiction, is often found when harmful effects occur to U.S. markets or citizens, and in criminal contexts, even if no element of the crime occurred in U.S. territory. (15) In an anti-trust law case in the 9th Circuit, the court described the effects test as having three requirements: first, there must be some effect on American foreign commerce; second, the effect must be sufficiently great to present a cognizable injury to plaintiffs under the federal statute; and third, the interests and links to American foreign commerce must be sufficiently strong in relation to those of other nations to justify extraterritorial jurisdiction. (16) For example, when the U.S. banned the import of shrimp harvested in a manner that killed sea turtles, it was found that the ban was adequately based on the U.S. nexus of sea turtles traveling through waters of U.S. territory. (17)

The U.S. has also imposed prescriptive jurisdiction under the principles of pas sive and active personality when U.S. citizens are in violation of the law regardless of their location or are the victims of the violation of law, and under the protective principle when conduct by non-citizens is "against the security of the State or the integrity of government functions." (18)

Application of Extraterritorial Jurisdiction is Varied

Extraterritorial application of U.S.' national standards is already recognized in many areas of law, including human rights, criminal, and environmental law, but is highly variable in each setting. (19) Statutes can either provide a direct extraterritorial provision, or exterritoriality can be implied. Whether a U.S. statute can be applied as implied extraterritorially depends on a certain methodology which examines the legislative intent of Congress, presumed reach of the statute in question, consistency of the legislation with international law, existence of judicial discretionary doctrines, and U.S. constitutional limits. (20) The most important of the considerations governing the extraterritorial application of U.S. law is examining the judicial presumptions of congressional intent, often influenced by international law norms. (21) This same methodology can be seen in the judicial system, when courts look to congressional intent to decide whether to apply state law to interstate conflicts, or when the statute is silent as to its potentially broader application. (22) The court in EEOC v Arabian American Oil Co first expressed that, unless a statute gives a clear indication that Congress intended it to apply abroad under direct extraterritoriality, there is a difficult-to-rebut presumption against extraterritoriality. (23) This presumption against extraterritoriality relies on the obligation of the U.S. judiciary to further Congress's intent, and when a statue is presumed to reach only nationally it is also presumed to be in compliance with international law. (24) Therefore, to determine if a law can be applied with implied extraterritorially or without clear congressional intent, one must look to: whether the violation occurred abroad, where the conduct occurred, and the effects of that conduct.

Applying U.S. Law Extraterritorially Avoids a Race to the Bottom

Following capitalism in the globalized world, if a good can be produced for less money, a company (often multi-national corporations) will have more profits. There fore, when stricter laws and regulations are passed in one State, a company can move its business to another State to keep costs down and maintain higher profits. The term "race to the bottom" focuses on the idea that in our increasingly globalized society, international investment and trade will turn to companies entering the global market with lower costs. (25) These lower costs are often the result of relaxed standards, including labor, tax, and environmental regulations. (26)

U.S. Animal Law and the Need for Extraterritorial Law

More Stringent Protections for Animals are Needed in the Law

Experts believe that because global concerns for animals have been rising, the desire to implement animal law may develop into a norm of customary international law. (27) While there is a lack of international law for animals, international perspectives show that the time is ripe to...