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International Conflicts A. The Scope of Legislative Jurisdiction: Extraterritorial Regulation Jurisdiction to Prescribe (Whether a court CAN apply forum law) i. Five Traditional Bases for Legislative Jurisdiction (United States v. Yunis) a) (1) Territorial: Jurisdiction is based upon the place where the offense was committed
? Effects Doctrine: This is treated as an aspect of territoriality.
? Under this doctrine, a state may regulate activity occurring outside of the state if that activity has or is intended to have effects within it.
? See United States v. Alcoa (interpreting the Sherman Act to apply to agreements intended to affect and affecting United States Commerce, stating that "any state . . . may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders that the state reprehends. . . ." (pg. 805)
? Territorial jurisdiction is sometimes called "subjective jurisdiction."
?????Effects jurisdiction is sometimes called "objective jurisdiction." b) (2) National: Jurisdiction is based upon the nationality of the offender
? This is the most widely accepted principle besides territorial jurisdiction.
?????According to the Third Restatement SS 402 cmt. e, international law "has increasingly recognized the right of the state to exercise jurisdiction on the basis of domicile or residence in regard to 'private law' matters such as the law of wills, succession, divorce and family matters, and, in some cases, liability for damages for injury." (pg. 803) c) (3) Protective: Jurisdiction is based upon whether the national interest is injured
? "[T]he international community has strictly construed the reach of this doctrine to those offenses posing a direct, specific threat to national security." United States v. Yunis (pg. 800 n.14)
?????This principle has been strictly construed to cover only "offenses directed against the security of the state or other offenses threatening the integrity of governmental functions that are generally recognized as crimes by developed legal systems, e.g. espionage, counterfeiting of the state's seal or currency, falsification of official documents, as well as perjury before consular officials, and conspiracy to violate the immigration or custom laws." Third Restatement SS 402 cmt. f (pg. 803) d) (4) Universal: Jurisdiction is conferred in any any forum that obtains physical custody of the perpetrator of certain offenses considered particularly heinous and harmful to humanity
"The Universal principle recognizes that certain offenses are so heinous and so widely condemned that 'any state if it captures the offender may prosecute and punish that person on behalf of the world community regardless of the nationality of the offender or victim or where the crime was committed." United States v. Yunis (pg. 798)
? "Those crimes that are condemned by the world community
. . . are often a matter of international conventions or treaties." (pg. 798)
? Examples: Aircraft piracy, Taking of hostages (United States v. Yunis - pg. 798)
? Example: Piracy (See United States v. Smith - pg. 804)
? Example: Genocide
? Example: Torture (Filartiga v. Pena-Irala - pg. 804)
? Example: Terrorism?
?????See United States v. Yousef (holding that "customary international law currently does not provide for the prosecution of 'terrorist' acts under the universality principle, in part due to the failure of States to achieve anything like consensus on the definition of terrorism") e) (5) Passive Personal: Jurisdiction is based on the nationality of the victim
? "This principle authorizes states to assert jurisdiction over offenses committed against their citizens abroad. It recognizes that each state has a legitimate interest in protecting the safety of its citizens when they journey outside national boundaries." United States v. Yunis (pg. 799)
? "Although many international legal scholars agree that the principle is the most controversial of the five sources of jurisdiction, they also agree that the international community recognizes its legitimacy." (pg. 799)
? "[T]he international community explicitly approved of the principle as a basis for asserting jurisdiction over hostage takers." (pg. 799)
? "[I]n the most recent draft of the Restatement, the authors noted that the theory 'has been increasingly accepted when applied to terrorist and other organized attacks on a state's nationals by reason of their nationality, or to assassinations of a state's ambassadors, or government officials." (pp. 799800)
? "Qualified application of the doctrine to serious and universally condemned crimes will not raise the specter of unlimited and unexpected criminal liability." United States v. Yunis (pg. 800) ii. Third Restatement of the Foreign Relations Law of the United States a) SS 402. Bases of Jurisdiction to Prescribe
? Subject to SS 403, a state has jurisdiction to prescribe with
? (a) conduct that, wholly or in substantial part, takes place within its territory;
? (b) the status of persons, or interest in things, present within its territory;
? (c) conduct outside its territory that has or is intended to have substantial effect within its territory;
? (2) the activities, interests, status, or relations of its nationals outside as well as within its territory;
? (3) certain conduct outside its territory by persons not its nationals that is directed against the security of the state or against a limited class of other state interests. b) SS 403 instructs the courts to apply a balancing test when another nation could also apply its law.
? SS 402 thus establishes the outer boundaries of jurisdiction to prescribe. B. Domestic Law Principles with respect to International Law i. The Court is bound by the law of nations which is part of the law of the land. See Paquette Habana (customary international law is part of "our law") a) Such statements have been understood to mean that customary international law is a part of the federal common law. ii. BUT If Congress enacts legislation contrary to public international law, United States courts must disregard international law and apply the domestic statute. See Head Money Cases a) Courts generally presume that Congress did not intend to run afoul of international law unless it has clearly said so. Murray v. Schooner Charming Betsy C. Limits on Jurisdiction to Prescribe under United States Law i. EEOC v. Aramco (pg. 808) a) "It is a longstanding principle of American law that 'legislation of Congress, unless contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.'" EEOC v. Aramco (pg. 809)
? "This 'canon of construction . . .is a valid approach whereby unexpressed congressional intent may be ascertained.'" EEOC v. Aramco (pg. 809)
? "In applying this rule of construction, we look to see whether 'language in the [relevant act] gives any indiction of congressional purpose to extend its coverage beyond places over which the United States has sovereignty or has some measure of legislative control.'" EEOC v. Aramco (pg. 809)
? "We assume that Congress legislates against a backdrop of the presumption against territoriality. Therefore, unless there is 'the affirmative intention of the Congress clearly expressed,' . . . we must presume it 'is primarily concerned with domestic conditions.'" EEOC v. Aramco (pg. 809) b) This case shows that the presumption against the extraterritorial
application of United States law is extremely strong. c) The Court's analysis turns on the notion that if Congress wants a statute to apply extraterritorially, it can simply say so. d) It is also of note that the reasoning of this case supports the proposition, discussed in Morrison, that the issue of extraterritorial application of United States law is a merits question and not a subject-matter jurisdiction issue as the reasoning in this case supports the proposition that one element of a Title VII claim is that the statute is not being applied extraterritorially. ii. Morrison v. National Australia Bank (handout) a) This case shows that the presumption against the extraterritorial application of United States law is very strong. This case shows that the presumption has become iron clad.
? "'[U]nless there is the affirmative intention of the Congress clearly expressed' to give a statute extraterritorial effect, 'we must presume it is primarily concerned with domestic conditions.'" Morrison v. National Australia Bank (pg. 2)
? "The canon or presumption applies regardless of whether there is risk of conflict between the American statute and a foreign law." Morrison v. National Australia Bank (pg. 2)
? "When a statute gives no clear indication of an extraterritorial application, it has none." Morrison v. National Australia Bank (pg. 2) b) This case also notes that the issue of whether or not a statute applies extraterritorially is a merits issue and not an issue of subject matter jurisdiction. See Morrison v. National Australia Bank (pg. 1) iii. Kiobel v. Royal Dutch Petroleum Co. (not assigned) a) The Alien Tort Claims Act gives federal district courts jurisdiction over "any civil action by an alien for tort only, committed in violation of the law of nations or a treaty of the United States."
? BUT The Supreme Court offered a relatively short list of what acts would qualify
? Offenses against ambassadors, violations of safe conduct, and individual actions arising out of prize captures and piracy. See Sosa v. Alvarez-Machain (pg. 808)
? The reason these acts were recognized is because these claims were recognized by the First Congress, of which passed the statute. b) This case shows even more than Morrison that the presumption against the extraterritorial application of United States law is absolutely iron clad.
? The Court held that the Alien Tort Statute does not apply extraterritorially. iv. Timberlane Lumber Co. v. Bank of America (pp. 816-17) a) Notwithstanding the fact that the court COULD apply the Sherman Act extraterritorially under the effects test, the court considered whether it SHOULD:
? "The effects test by itself is incomplete because it fails to consider other nations' interests. . . . [Courts must therefore ask
the question] . . . whether the interests of, and links to, the United States . . . are sufficiently strong, vis-a-vis those of other nations, to justify an assertion of extraterritorial authority . . . ." (pg. 816)
? (1) Degree of conflict with foreign law or policy;
? (2) The nationality or allegiance of the parties and the locations or principal places of business of corporations;
? (3) The extent to which enforcement by either state can be expected to achieve compliance;
? (4) The relative significance of effects on the United States as compared with those elsewhere;
? (5) The extent to which there is explicit purpose to harm or affect American commerce;
? (6) The foreseeability of such effects; and
? (7) The relative importance to the violations charged of conduct within the United States as compared with conduct abroad. v. Third Restatement of the Foreign Relations Law of the United States a) SS 403. Limitations on Jurisdiction to Prescribe
? (1) Even when one of the bases for jurisdiction under SS 402 is present, a state may not exercise jurisdiction to prescribe law with respect to any 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:
? (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 connection, 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 regulate, the importance of the regulation to the regulating state, the extent to which other states regulate such activities , and the degree to which the desirability of such regulation is generally accepted;
? (d) the existence of justified expectations that might be protected or hurt by the regulation;
? (e) the importance of the regulation to the international political, legal, or economic system;
? (f) the extent to which the regulation is consistent with the
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