CHAPTER 21 SELECTED U.S. LAWS WITH EXTRATERRITORIAL EFFECT

• Jurisdiction: United States

International Resources Law: A Blueprint for Mineral Development
(Feb 1991)
CHAPTER 21
SELECTED U.S. LAWS WITH EXTRATERRITORIAL EFFECT
Joseph P. Griffin
Morgan, Lewis & Bockius
Washington, D.C. & Brussels, Belgium

I. U.S. View of Relation of U.S. and International Law

A. International Law is Part of U.S. Law

It is well established that rules of international law are part of the law of the United States, and that U.S. courts are bound to give effect to international law. U.S. Constitution, Art. VI (treaties are "the supreme law of the Land"); The Paquete Habana, 175 U.S. 677, 700 (1900); Restatement (Third) of the Foreign Relations Law of the United States § 111 (1987) [hereinafter cited as "Restatement (Third)"]; Henkin, International Law as Law in the United States, 82 Mich. L. Rev. 1555, 1561-67 (1984). International law limits the authority of nations to assert jurisdiction over matters affecting the interests of other nations.

B. Rules of U.S. Statutory Construction

1. "An act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains." Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (Marshall, C. J.); Restatement (Third) § 114.

2. Legislation is presumed to apply only within the territorial jurisdiction of the United States unless Congress makes clear that it applies beyond U.S. borders. See, e.g., Argentine Republic v. Amerada Hess Shipping Co., 109 S.Ct. 683, 691 (1989); Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949); Blackmer v. United States, 284 U.S. 421, 437 (1932). The presumption is based on the fundamental concept of sovereignty, that nations have the right to regulate conduct within their own borders and not within the borders of another sovereign. Sandberg v. McDonald, 248 U.S. 185, 195 (1918)

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("Legislation is presumptively territorial and confined to limits over which the law-making power has jurisdiction.").

C. Supremacy of U.S. Law

Restatement § 115(1)(a):

"An act of Congress supersedes an earlier rule of international law or a provision of an international agreement as law of the United States if the purpose of the act to supersede the earlier rule or provision is clear or if the act and the earlier rule or provision cannot be fairly reconciled."

D. International Comity

1. "The spirit of cooperation in which a domestic tribunal approaches the resolution of cases touching the laws and interests of other sovereign states." Societe Nationale Industrielle Aerospatiale v. U.S. District Court, 482 U.S. 522, 543 (1987).

2. "The degree of deference that a domestic forum must pay to the act of a foreign government not otherwise binding on this forum." Laker Airways Ltd. v. Sabena, 731 F.2d 909, 937 (D.C. Cir. 1984).

3. There is an "exception" to comity if foreign interests are fundamentally contrary to significant U.S. public policies. See, e.g., Hilton v. Guyot, 159 U.S. 113, 164 (1895); Laker Airways Ltd. supra.; Tahan v. Hodgson, 662 F.2d 862, 864, 866 (D.C. Cir. 1981); Kadish, Comity and the International Application of the Sherman Act: Encouraging the Courts to Enter the Political Arena, 4 Nw. J. Int'l L. & Bus. 130, 132-33 (1982); Maier, Extraterritorial Jurisdiction at a Crossroads: An Intersection Between Public and Private International Law, 76 Am. J. Int'l L. 280, 282 (1982).

E. International Standards of Jurisdiction

1. The S.S. Lotus (France v. Turkey), 1927 P.C.I.J. (ser. A) No. 10.

International law did not prohibit Turkey from instituting criminal proceedings against a French citizen for

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manslaughter arising out of the high seas collision of French and Turkish ships. The PCIJ was not asked whether international law authorized Turkey to institute such proceedings.

2. U.S. v. Aluminum Co. of America, 148 F.2d 416, 443 (2d Cir. 1945).

"Any state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the state reprehends...."

3. Amicus Brief of British Government, In Re: Insurance Antitrust Litigation, at 3 (9th Cir., Aug. 9, 1990), for lower court decision see 723 F. Supp. 464 (N.D.Cal. 1989).

"[T]here have been claims made in the U.S. courts, most recently asserted in treble damage suits (as here), against conduct by non-U.S. citizens outside the boundaries of the United States, based on the adverse effect which that conduct allegedly has on competition in U.S. domestic or foreign commerce (the "effects doctrine"). The United Kingdom authorities and courts have consistently taken the view that such claims to jurisdiction are contrary to international law and in infringement of the sovereignty of other nations. Since the Second World War, successive British Governments have on many occasions expressed these views to the U.S. Executive and courts."

4. Restatement (Third), § 403

"Limitations on Jurisdiction to Prescribe

(1) Even when one of the bases for jurisdiction under § 402 is present, a state may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable.

(2) Whether exercise of jurisdiction over a person or activity is unreasonable is determined by evaluating all relevant factors, including, where appropriate:

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(a) The link of the activity to the territory of the regulating state, i.e., the extent to which the activity takes place within the territory, or has substantial, direct, and foreseeable effect upon or in the territory;

(b) The connections, such as nationality, residence, or economic activity, between the regulating state and the person principally responsible for the activity to be regulated, or between that state and those whom the regulation is designed to protect;

(c) The character of the activity to be regulated, the importance of regulation to the regulating

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