Extraterritorial Application of American Criminal Law: An Abbreviated Sketch Page: 2 of 6
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notably in the due process clauses. Yet, although American courts that try aliens for
overseas violations of American law must operate within the confines of due process, the
Supreme Court has observed that the Constitution's due process commands do not protect
aliens who lack any "significant voluntary connection with the United States." Moreover,
the Court's more recent decisions often begin with the assumption that the issues of
extraterritorial jurisdiction come without constitutional implications.
Statutory Construction. Thus, the question of the extent to which a particular
statute applies outside the United States has generally been considered a matter of
statutory, rather than constitutional, construction. General rules of statutory construction
have emerged which can explain, if not presage, the result in a given case. The first of
these holds that a statute will be construed to have only territorial application unless there
is a clear indication of some broader intent. A second rule of construction states that the
nature and purpose of a statute may provide an indication of whether Congress intended
a statute to apply beyond the confines of the United States. The third principle
encompasses misconduct overseas which has an impact within the United States. The
final rule declares that unless a contrary intent is clear, Congress is assumed to have acted
so as not to invite action inconsistent with international law.
International law supports rather than dictates decisions in the area of the overseas
application of American law. Neither Congress nor the courts are bound to the dictates
of international law when enacting or interpreting statutes with extraterritorial application.
Yet Congress looks to international law when it evaluates the policy considerations
associated with legislation that may have international consequences. For this reason, the
courts interpret legislation with the presumption that Congress or the state legislature,
unless it indicates otherwise, intends its laws to be applied within the bounds of
international law. To what extent does international law permit a nation to exercise
extraterritorial jurisdiction? The question is essentially one of national interests. What
national interest is served by extraterritorial application and what interests of other nations
suffer by an extraterritorial application? The most common classification of these
interests dates to a 1935 Harvard Law School study which divided them into five
categories involving: (1) the regulation of activities occurring within the territory of a
country; (2) the regulation of the conduct of its nationals; (3) the protection of its
nationals; (4) the regulation of activities outside a country which have an impact within
it; and (5) the regulation of activities which are universally condemned. Legislation may
reflect more than one interest or principle and there is little consensus of the precise
boundaries of the principles. The American Law Institute's Third Restatement of the
Foreign Relations Law of the United States contains perhaps the most comprehensive,
contemporary statement of international law in the area. It indicates that the latitude
international law affords a country to enact, try and punish violations of its law
extraterritorially is a matter of reasonableness, and its assessment of reasonableness
mirrors a balancing of the interests represented in the principles.
While the Restatement's views carry considerable weight with both Congress and
the courts, the courts have traditionally ascertained the extent to which international law
would allow extraterritorial application of a particular law by examining American case
law, a source which historically has provided a more permissive view of extraterritorial
jurisdiction than either the Restatement or the Harvard study.
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Extraterritorial Application of American Criminal Law: An Abbreviated Sketch, report, August 18, 2006; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc807929/m1/2/: accessed January 17, 2019), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.