Extraterritoriality

Harvard Law Review, March 2011 | Go to article overview

Extraterritoriality


"The district courts shall have original jurisdiction of any civil action by an alien for a tort only committed in violation of the law of nations or a treaty of the United States."

Alien Tort Statute, 28 U.S.C. [section] 1350 (2006).

"We assume that Congress legislates against the backdrop of the presumption against extraterritoriality."

EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991).

"[T]he number of U.S. lawsuits where American laws are applied extraterritorially to solve global problems has grown. This trend, however, is not peculiar to the United States. Increasingly other countries are also applying their laws extraterritorially to exert international influence and solve transboundary challenges."

Austen L. Parrish, Reclaiming International Law from Extraterritoriality, 93 Minn. L. Rev. 815, 818 (2009) (footnote omitted).

"The Organization is based on the principle of the sovereign equality of all its Members. ... All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."

U.N. Charter art. 2, paras. 1, 4.

TABLE OF CONTENTS

I.   INTRODUCTION                                                 1228

II.  IMPLICATIONS OF EXTRATERRITORIALITY IN THE ALIEN TORT        1233
STATUTE

      A. Introduction                                             1233

      B. Overview of ATS History                                  1235

      C. Lower Court Decisions on the ATS's Extraterritorial      1237
         Reach

         1. International Law Limits on the ATS                   1238

         2. U.S. Law Limitations on the ATS                       1242

      D. Conclusion                                               1245

III. RESPONDING TO EXTRATERRITORIAL LEGISLATION: THE EUROPEAN     1246
UNION AND SECONDARY SANCTIONS

      A. The History of EU Opposition to Secondary Sanctions      1247

      B. Recent EU Support of New Secondary Sanctions Targeting   1250
         Iran

      C. Understanding the New EU Approach--and Its Implications  1252

      D. Conclusion: Eliminating Future Conflicts over            1257
         Extraterritoriality

IV.  EXTRATERRITORIALITY AND THE WAR ON TERROR                    1258

      A. The Context of Boumediene                                1259

      B. The Lower Courts' Approaches                             1260

         1. Boumediene Outside of Guantanamo: Al Maqaleh v.       1261
            Gates

         2. Boumediene Outside of Habeas: Al-Zahrani v. Rumsfeld  1264

      C. Implications for Future Detainee Cases                   1267

V.   COMITY AND EXTRATERRITORIALITY IN ANTITRUST ENFORCEMENT      1269

      A. Expanding Comity to Restrict Private Extraterritorial    1272
         Enforcement

      B. Increasing Extraterritorial Criminal Prosecutions        1274

      C. The Coordination and Substitution of Private and         1277
         Public Extraterritorial Enforcement

VI.  EXTRATERRITORIAL LAW AND INTERNATIONAL NORM                  1280
INTERNALIZATION

      A. Introduction                                             1280

      B. The Alien Tort Statute                                   1281

      C. The Foreign Corrupt Practices Act                        1285

      D. The Iran and Libya Sanctions Act                         1289

      E. Conclusion                                               1291

VII. CHAPTER 15 AND CROSS-BORDER BANKRUPTCY                       1292

      A. Framing the Debate: Universalism Versus Territorialism   1294

      B. Non-U.S. Extraterritoriality: A Consideration of         1295
         Chapter 15

      C. U.S. Extraterritoriality: Beyond Chapter 15              1300

      D. Lehman Brothers and Cross-Border Insolvency Protocols    1301

      E. … 

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