EXTRATERRITORIAL CRIMINAL JURISDICTION: REPLACING “OBJECTIVE TERRITORIALITY” WITH “DEFENSIVE TERRITORIALITY”

• Published date: 09 April 2003
• DOI: https://doi.org/10.1016/S1059-4337(02)28005-9
• Pages: 117-135
• Date: 09 April 2003
• Author: Ellen S Podgor

EXTRATERRITORIAL CRIMINAL

JURISDICTION: REPLACING

“OBJECTIVE TERRITORIALITY” WITH

“DEFENSIVE TERRITORIALITY”

Ellen S. Podgor

ABSTRACT

This article begins by exploring the development of extraterritoriality in the

United States. It notes the expansion of extraterritorial provisions within

federal criminal legislation and how these provisions permit prosecutors to

proceed with criminal actions for conduct occurring outside this country. It

also reflects on the use of an “objective territorial principle” by the judiciary,

that permits criminal prosecutions whenever the conduct of the actor has a

substantial effect in the United States. As an alternative to using “objective

territoriality,” this article advocates for using a “defensive territoriality”

approach.This articlestressesthebenefitsof usinga“defensive territoriality”

approach to decide whether to prosecute an extraterritorial crime.

INTRODUCTION

A foreign corporation may be prosecuted in the United States under the Sherman

Act even though the price-fixing activities occur outside this country (Nippon v.

United States, 1997). Likewise, individuals selling drugs may never step foot on

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Studies in Law, Politics, and Society,Volume 28, 117–135

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118 ELLEN S. PODGOR

United States soil, yet find their conduct subject to a United States prosecution

(Chua Han Mow v. United States, 1984). So too, individualsoperating in Pakistan

who are alleged to be part of a conspiracy that resulted in the death of a journalist

from the United States, may find themselves indicted by a United States grand

jury (United States v. Sheikh, 2002). Extraterritorial criminal jurisdiction permits

United States prosecutors to proceed with each of these criminal cases.

Individuals who reside outside the United States may find themselves ex-

tradited (Chua Han Mow v. United States, 1984), kidnapped (United States v.

Alvarez-Machain, 1992), or lured (U.S. Department of Justice, Attorney’s

Manual § 9–15.630, 1997), to the United States to face criminal charges in this

country (United States v.Best, 2002). Corporations may find themselves subject to

United States criminal penalties even though they are foreign corporations acting

outside this country.

The limits of criminal law are not determined strictly by examining the national

law where an act occurs. Extraterritoriality adds another dimension to the bound-

aries of criminal law. With increased globalization, this new dimension plays a

prominent role in shaping the contours of criminal law. Recognizing that the term

“globalization” is a term of enormous breadth with substantial legal jurisprudence

reflecting on its many dimensions (Twining,2002), it is noted here that the term as

used in this paper is one of a simplistic nature. The term “globalization” as used

throughout this paper is to recognize increased internationalization on economic,

political, social, and cultural levels.

In past articles, I have discussed the concept of extraterritoriality in specific

contexts. I argued for using a “defensive territoriality” approach, as opposed to the

existing“objectiveterritoriality approach,”in the specificcontextof extraterritorial

business crimes (Podgor, in press). In addition, I have previously contended that

Congress should speak clearer in drafting white collar criminal statutes to address

whether an extraterritorial application should be authorized (Podgor, 1997).Ihave

also advocated for limiting national jurisdiction in the context of international

computer fraud crimes (Podgor, 2002b). Although there are strong arguments for

limiting extraterritorial applications in specific contexts (Podgor,2002b), there are

equally strong arguments for extending extraterritorial applications in appropriate

cases.

In this article I will extend the principles that I discussed in my prior pieces to

lookcomprehensivelyat allcrimes.Here, Iwillfocus generally oncriminal law and

explorethedeficiencies of oneof the keyprinciples of extraterritorialityusedby the

United States, namely, “objective territoriality.” It is contended here that applying

“defensive territoriality” as a replacement for “objective territoriality” provides

a methodology that is better attuned to globalization. “Defensive territoriality”

offers a more restrained approach in the context of crimes not directed against