Extraterritoriality and Extranationality: A Comparative Study

By Clopton, Zachary D. | Duke Journal of Comparative & International Law, Winter 2013 | Go to article overview

Extraterritoriality and Extranationality: A Comparative Study


Clopton, Zachary D., Duke Journal of Comparative & International Law


International lawyers are familiar with the concept of extraterritoriality the application of one country's laws to persons, conduct, or relationships outside of that country. Yet the transborder application of law is not limited to international cases. In many states, the presence of indigenous peoples, often within defined borders, creates an analogous puzzle. This Article begins a comparative study of foreign- and native-affairs law by examining the application of domestic laws to foreign facts ("extraterritoriality") and to indigenous peoples, often called "nations" ("extranationality"). Using a distinctive double-comparative perspective, this Article analyzes extraterritoriality and extranationality across three countries." the United States, Canada, and Australia.

Part I addresses the treatment of extraterritoriality across these three countries. Part II does the same for extranationality. These comparative law analyses pay special attention to the sources of the legal regimes and to the similarities and differences among the three countries' approaches. But comparative law is not only a tool to evaluate extraterritoriality and extranationality separately; it is also a tool to compare approaches toward foreign affairs with approaches toward indigenous peoples--here embodied in a presumption against extraterritoriality and a presumption in favor of extranationality. Part III takes up this task, focusing on sovereignty, separation of powers, and due process in the context of these rules. Finally, Part IV identifies practical lessons drawn from the manifold approaches to these related issues. In sum, this Article launches a new double-comparative enterprise and, in the process, offers policy proposals derived from the study of the American, Canadian, and Australian approaches to extraterritoriality and extranationality.

INTRODUCTION

International lawyers, courts, and scholars have paid significant attention to the issue of extraterritoriality. As this Article uses the term, extraterritoriality refers to the application of the laws of one country to persons, conduct, or relationships outside of that country. The classic example is the gunman standing in one state and shooting someone across the border in another state, though globalization has increased both the quantity of transnational interactions and the interest of states in regulating them. The question for courts is how best to determine whether particular laws apply to cases in which some of the relevant facts are located outside the territorial borders of the state. When a law does not specify its geographic reach, what limits (if any) will courts place on its application?

The gun-across-the-border hypothetical is not only relevant to foreign-affairs cases; it is also applicable to indigenous-peoples law. We just as easily could ask whether a law touches cases across the borders of an Indian reservation. The question of extraterritoriality, therefore, can also be asked in this context: under what circumstances will a court apply domestic laws to cases with a connection to native lands or populations? For convenience, this Article refers to the application of domestic law to native peoples (often characterized as "nations") as "extranationality." (1)

Despite the similarities between extraterritoriality and extranationality--and between foreign- and native-affairs law generally (2)--scholars have not taken full advantage of this comparison. This Article takes up this task by comparing extraterritoriality and extranationality across three common law countries with significant native populations: the United States, Canada, and Australia. This double-comparative approach, therefore, assesses the effect of borders on the geographic reach of ambiguous statutes in two different settings (extraterritorial and extranational cases) in each of three countries (United States, Canada, and Australia)

The purposes of this double-comparative project are twofold.

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