CH. 7 FEDERAL LAW
& EXTRATERRITORIALITY
What is the international (i.e., cross-border or
transnational) scope of:
·
the U.S.
Constitution, and
·
federal (&
state) statutes?
Does a “conflict” exist with rules in the destination
jurisdiction?
If so, how resolve these conflicts? No full faith &
credit.” What is the concept of “comity”?
These issues also relevant in non-foreign country
situations: international waters; space.
FEDERAL LAW SUPREMECY
Consider those areas where national law supersedes local
(state) law:
Foreign policy (foreign affairs jurisdiction)
Interstate/international commerce & commerce clause
jurisdiction.
Others
How Far do Federal
Statutes Reach?
Limit to the “water’s edge”?
Also, applicable to U.S. citizens/U.S. corporations abroad?
Also, applicable to foreign entities owned by U.S. interests
when (1) contacts with U.S. (effects within U.S.), and (2) exclusively foreign
contacts?
Use territoriality as a “presumption”? Aramco case as
providing a presumption against extraterritoriality?
Restatement of Foreign
Relations Law, 3rd
§402 identifies bases for national legislative jurisdiction,
including:
- Conduct outside the territory that has or is
intended to have substantial effect within its territory.
- Activities, interests, status or relations of its
nationals outside (as well as inside) its territory.
-Conduct outside the territory not by nationals directed
against security of the state.
Territorialism
p.567
EEOC vs. Aramco
Does Title VII apply extraterritorially to regulate U.S.
employers who employ U.S. citizens outside the United States?
Held: No. Aramco Services employee made a charge of
discrimination which was dismissed on Motion for Summary Judgment. Based on no
extraterritorial application of Title VII – even to U.S. citizens employed by
U.S. corporation. EEOC contends intent for extraterritoriality. Rejected –
presumption against foreign application. Cont.
EEOC vs. Aramco
Dissent p.572
The “resumption against extraterritoriality” is not a “clear
statement.”
Was there insufficiently strong intent concerning
congressional purpose?
Alien exemption did identify Congressional attention to
non-U.S. implications & not limited to purely domestic application.
EEOC vs. Aramco
Observations
Was this really a “conflict of laws” situation?
What was the conflict?
Did Saudi Arabia have conflicting rules that would permit
discrimination in this situation (U.S. employer, U.S. employee) in that
country’s location?
Cf., ADEA (p.572) where recognition of foreign laws arises
which might cause violation of laws in the destination country.
Use unilateral or
multilateral approach?
Does the ARAMCO approach represent “unilateral disarmament”?
Does a separation of powers limitation apply, i.e., is
outside the U.S. within the predominant domain of the U.S. political
branches?
P. 574 – see later amendment of Title VII to extend law to
foreign based employees. But, subject to a local law violation exception.
See at §(c)(1) (p.575) imputation of this revised
jurisdictional rule to employees of foreign subs.
Presumption against
extraterritoriality p.575
Morrison v. Natl. Aust. Bank., p.575
SEC Act of 1934, §10(b) - applicable to foreign conduct? No,
unless a clear indication of extraterritorial application exists.
This act only applies to securities transactions in the U.S.
(even though the deception/fraud may have occurred outside the U.S.).
Lauritzen v. Larsen
p.576
Do U.S. statutes apply to a claim of maritime tort? Danish
seaman on Danish vessel injured in employment when in Havana, Cuba harbor.
Employment agreement (in Danish) says rights under agreement
are governed by Danish law.
Jones Act suit filed in SDNY.
Is Jones Act applicable to all seamen wherever?
Fundamental principle: One sovereign respects the subjects
and rights of other sovereign
powers. Cont.
Lauritzen v. Larsen
p.576 Danish law applies
Seaman’s contacts & U.S. ports? Other factors:
·
Place of
wrongful act: Cuba
·
Law of the
“flag”, i.e., nationality of the ship.
·
Domicile of the
injured.
·
Allegiance of
the shipowner; cf., flags of “convenience.”
·
Place of
employment contract.
·
Inaccessibility
of a foreign forum
·
Law of the
forum.
Hartford Fire
Insurance
p.582 Re: Comity
Sherman Act precludes conspiracies in restraint of trade,
including fixing the terms of commercial general liability coverage.
See issues p. 583: (1) “occurrence” basis vs. “claims made”
liability trigger; (2) restrict coverage to claims on events occurring after
specified date; (3) eliminate “sudden and accidental” pollution coverage; &
(4) legal defense cost cap.
Held: Act applies to this foreign conduct. Cont.
Hartford Fire
Insurance
p.582, cont. Re: Comity
Held: Foreign conduct was meant to produce a substantial
effect in the U.S.; unlawful conspiracy existed of London reinsurers to
substantially effect the U.S. insurance market.
Violation of international comity concepts? Outweighed by
the conduct of foreign insurers in the U.S. But, does a conflict exist with
British law? Holding: no conflict here with British law since UK insurers can
comply with U.S. law.
Cont.
Hartford Fire
Insurance
p.582, cont. Dissent
Scalia: (1) Dist. Ct. did have subject matter jurisdiction
over the Sherman Act claims; and (2) Congress did intend to extend Sherman Act
extraterritorial jurisdiction to this conduct (cf., Aramco case).
But, regulation would conflict with intl. law principles.
U.S. should refrain from exercising jurisdiction here since exercise is
unreasonable.
Sherman Act will conflict with interests of other (serious)
countries. Cont.
Hartford Fire
Insurance
p.582, cont. Queries
Does a “true conflict” exit? Court says no.
Should the court have made a “balancing comparison” comparing
the interest of the US and the interests of the UK?
Hoffman-LaRoche
p.591
Alleged conspiracy to raise vitamin prices. “Independently
caused foreign injury.”
Are foreign defendants liable under Sherman Act for foreign
harm caused by conduct that also caused injury within the United States?
See (p.591) reference (p. 591) to principles of customary
international law (i.e., comity), Restatement Foreign Relations, §403.
Cont.
Hoffman-LaRoche
p.591, cont.
Here conduct is significantly foreign.
Further determination: Sherman Act extension here would not
be reasonable. Congress did not intend to bring independently caaused foreign
injury within Sherman Act.
Note the interpretation of FTAIA (1982)- Sherman Act only
applies if direct, substantial economic effect in the U.S.
International Law
&
Prescriptive Jurisdiction
What is “prescriptive jurisdiction”? P.596/602.
Regulation of a person’s conduct and behavior (often in the criminal context),
including beyond national borders (where consistency required with customary
international law).
Consider the impact of the possible extraterritoriality of
one country’s criminal laws.
U.S. v. Noriega
p.596
International law of prescriptive jurisdiction.
Noriega indicted for international conspiracy to import
cocaine into U.S. & for RICO violations.
Can U.S. exercise jurisdiction over Noriega’s criminal
activities outside U.S. borders?
Is this an (unreasonable) extraterritorial application of U.S.
criminal laws? Conduct was by an alien in a foreign country.
Noriega’s status as a foreign head of state was not deemed
relevant. Cont.
U.S. v. Noriega
p.596 cont.
Holding: (1) U.S. has power to reach this conduct under
international law principles; &
(2) Criminal law drug statutes are intended to have extraterritorial
effect. Yes, if U.S. impact.
Applicability of these rules even if only a co-conspirator.
Also, applicability even if only having an “intent” to produce these
effects in the U.S. when importing drugs.
Criminal jurisdiction should be exercised more carefully, but
not with narcotics offenses.
U.S. v. Yunis
p.599
Yunis hijacks foreign carrier plane and destroys plane, after
hijack victims (including two U.S.) are released. Yunis caught and taken to
U.S. & convicted of conspiracy, hostage taking and air piracy.
Motion by Yunis to dismiss for lack of (1) subject matter and
(2) personal jurisdiction.
Consider: U.S. Hostage Taking Act (p.600) - includes an
offense outside the U.S. if taking a U.S.
national. Cont.
U.S. v. Yunis
p.599, cont.
Hostage Taking Act: Yunis asserts he was not “found” in the U.S., but
taken to U.S. by force.
Holding: U.S. jurisdiction exists if a hijacked person
includes a U.S. citizen.
Further: U.S. jurisdiction is not precluded under norms of
customary international law – under (1) “universal principle” (offenses
recognized by “community of nations,” and
(2) “passive personal principle” (crimes against nationals
outside territory). Cont.
U.S. v. Yunis
p.599, cont.
Anti-hijacking Act, p. 601: U.S. criminal punishment if foreign
hijacker is subsequently “found” in the U.S.
Holding: When brought to the U.S. for hostage taking Yunis
was then in U.S. territory and, therefore, could be subjected to the U.S.
anti-hijacking legislation (even if no territorial connection and no U.S.
citizens involved).
Proper indictment occurred after arrival in U.S.
Universal jurisdiction for hijacking? P. 602.
Scope of Prescriptive
Jurisdiction p.602
1) Territoriality – conduct (or impact) within
its territory.
2) Nationality – regulation of citizens within and without
the national territory.
3) Protective – regulate non-U.S. conduct when affecting US
national security or government.
4) Passive personality – regulation of conduct of others
that harms U.S. citizens abroad.
5) Universality – regulating egregious conduct wherever
occurring in the world.
Universal Jurisdiction
p.604 Piratical acts
·
Piracy
·
War crimes
·
Crimes against
humanity
·
What about
“terrorism,” including state sponsored terrorism? What is terrorism?
·
Torture &
genocide acts are committed outside the U.S. by a non-U.S. person, but the
person is brought into the U.S.?
Extraterritorialty
&
U.S. Constitution p.606
Reid v. Covert – can U.S. persons abroad invoke U.S.
constitutional rights?
Here wives on U.S. military bases in foreign countries kill
spouses and (claiming insanity) are tried under the Uniform Code of Military
Justice. Wives claim no jurisdiction by military authorities exists to
try their cases.
Holding: wives are entitled to constitutional
protections in their trials; fundamental constitutional rights apply; is this a
form of “global due process”?
Reid v. Covert
concurrence p.608
Harlan: U.S. Constitution does not apply to all situations
outside the U.S.
Including, no full Article III trial is required for
civilian dependent of U.S. military person located abroad.
Except for capital cases.
U.S. v.
Verdugo-Urquidez
p.610
Does 4th Amendment “search and seizure” limit
apply to U.S. agents seizing property of nonresident alien located in foreign
country? No.
Mexican citizen-resident drug dealer into U.S.
USG arrest warrant; U.S. agents raided suspect’s residence in
Mexico for evidence.
US Dist. Ct. granted motion to suppress evidence obtained
without 4th Amend. warrant. Ct. of Appeals affirmed 4th
Amend. applicability.
Cont.
U.S. v.
Verdugo-Urquidez
p.610, cont.
U.S. Sup. Ct.: No 4th Amend. restrictions on U.S.
agents against foreigners in foreign countries.
Different U.S. constitutional treatment applies for foreign
individual with no substantial connections with the U.S. The search here did
occur (in Mexico) when Defendant was in U.S. (involuntarily) for a few days.
Ultimately this is a political issue, not a 4th
Amend. issue.
U.S. v.
Verdugo-Urquidez
p.610, cont.
Brennan dissent, p.617: U.S. criminal laws are enforced outside the U.S.,
but no U.S. 4th Amend. rights are exercisable in the proceeding.
Def. is part of U.S. community for purposes of his U.S.
criminal trial.
Also, no geographical limit on the 4th Amend.
Majority disregards notions of mutuality. P.619.
Further, Def. is one of the “governed.”
Also, Executive Dept. prerogative remains (except in criminal
matters).
Boumediene v. Bush
p.623
Re: Habeas corpus challenges by Guantanamo
detainees. U.S. Cont., Art. 1, §9, provide for writ of habeas corpus except suspended
in cases of rebellion/invasion if public safety requires.
Military Commissions Act of 2006 eliminated habeas corpus
jurisdiction over “enemy combatants”- non-citizens at GITMO.
Is GITMO not within U.S. sovereign control (with Cuba
maintaining sovereignty)? Cont.
Boumediene v. Bush
p.623 cont.
Is U.S. Const. not applicable at GITMO because U.S. disclaims
sovereignty there?
Majority: U.S. Const. can not be contracted away in this
manner.
Congress has not provided an adequate substitute for
habeas corpus review.
The denial of habeas corpus jurisdiction is unconstitutional.
Cont.
Boumediene v. Bush
p.623, cont. Dissent
Scalia: No relevance of the writ of habeas corpus outside
the United States.
This is a military matter and court should not be involved.
U.S. Constitutional rights do not extend to aliens held
outside U.S. sovereign territory.
Preserve the supremacy of the Court!
Alternative Approaches
to Const. Rights p.629
·
Universalist
approach- rights have no limits.
·
Membership
approach – rights are based in
·
Contract, i.e.,
consent of the governed who have established a state.
·
Territorial
model – limited by the borders of
·
the United
States.
·
Balancing approach
– government’s reduced rights outside the U.S. and, also, reduced individual
rights outside the U.S.