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A Presumption Against Extrajurisdictionality

Published online by Cambridge University Press:  27 February 2017

John H. Knox
John H. Knox*
Affiliation:
Wake Forest University School of Law
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How far does U.S. law reach beyond U.S. borders? In principle, Congress could extend its laws as far as it likes, but Congress often fails to make its intentions clear. Many statutes do not specify their geographic scope, instead using general terms that have no inherent limit. Federal courts have long employed interpretive rules, or canons, to guide their construction of such statutes. The canon most commonly cited is the presumption against extraterritoriality, which states that “legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.” The simplicity of this language masks difficult questions. Does the “territorial jurisdiction of the United States” include only territory within the national boundaries, or does it extend to territory outside those boundaries but within U.S. control? How should the presumption apply to actions taken abroad that cause effects within U.S. territory, however defined? What implications does the presumption have for situations within U.S. territory but also within the jurisdiction of another country, such as foreign ships in a U.S. port? When the presumption does apply, what evidence of “contrary intent” is necessary to overcome it?

Type
Research Article
Information
American Journal of International Law , Volume 104 , Issue 3 , July 2010 , pp. 351 - 396
Copyright
Copyright © American Society of International Law 2010

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References

1 Congress could not, of course, exceed constitutional limits, but the Supreme Court has never clarified such limits, if they exist. See Brilmayer, Lea & Norchi, Charles Federal Extraterritoriality and Fifth Amendment Due Process, 105 Harv. L. Rev. 1217 (1992)CrossRefGoogle Scholar (arguing for limits); Mark Weisburd, A. Due Process Limits on Federal Extraterritorial Legislation? 35 Colum. J. Transnat’l L. 379 (1997)Google Scholar (arguing against them). International limits on legislative jurisdiction do exist, as part I of this article explains, although Congress could decide to exceed them if it chose to place the United States in violation of international law.

2 EEOC v. Arabian Am. Oil Co. (Aramco), 499 U.S. 244, 248 (1991)Google Scholar (quoting Foley Bros. v. Filardo, 336 U.S. 281, 285(1949)).

3 Compare Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 173–74 (1993)Google Scholar (applying presumption to U.S.Coast Guard ship outside U.S. waters), and Smith v. United States, 507 U.S. 197, 203–04 (1993)Google Scholar (applying presumptionto tort involving U.S. national working for U.S. government in Antarctica), and United States v. Spelar, 338 U.S. 217, 222 (1949) (applying presumption to U.S. military base in Newfoundland), with Rasulv. Bush, 542 U.S. 466 (2004) (rejecting application of presumption to U.S. military base in Cuba), and Vermilya–Brown Co.v. Connell, 335 U.S. 377, 386–90 (1948) (ignoring presumption in applying law to U.S. military base in Bermuda).

4 Compare Hartford Fire Ins. Co. v. California, 509 U.S. 764, 796 (1993)Google Scholar, and Steele v. Bulova Watch Co., 344 U.S. 280, 288 (1952)Google Scholar (relying on effects), with Aramco, 499 U.S. at 248, and Foley Bros., 336 U.S. at 285 (stating presumption).

5 Aramco, 499 U.S. at 248, 253 (citing earlier cases involving foreign ships as if they had been decided according to the presumption against extraterritoriality); McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21 (1963)Google Scholar (relying on internal affairs rule); Mali v. Keeper of the Common Jail (Wildenhus’s Case), 120 U.S. 1, 18(1887) (same); Windward Shipping (London) Ltd. v. Am. Radio Ass’n, 345 U.S. 104, 114 (1974) (interference with maritime operations); Lauritzen v. Larsen, 345 U.S. 571, 582–83 (balancing test); Cunard S.S. Co.v.Mellon, 262 U.S. 100, 124 (1923) (no presumption).

6 Aramco, 499 U.S. at 248, 258.

7 Foley Bros., 336 U.S. at 286–87.

8 United States v. Bowman, 260 U.S. 94, 98 (1922).

9 See infra part IV.

10 Rather than “legislative jurisdiction,” the Restatement of the Foreign Relations Law of the United States uses the term “jurisdiction to prescribe,” which it defines as “the authority of a state to make its law applicable to persons or activities.” Restatement (Third) of the Foreign Relations Law of the United States 231 (1987) [hereinafter Restatement]. The broader term makes clear that it includes not only laws enacted by legislative bodies, but also regulations effected through executive acts or orders, administrative rules, and even court decrees. Id. §401(a). Because this article focuses on how U.S. courts should construe laws enacted by Congress, it uses the older term. The Restatement also usefully distinguishes jurisdiction to prescribe from two other types of jurisdiction: to adjudicate and to enforce. Unless this article otherwise indicates, its references to jurisdiction refer only to the first type.

11 Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804)Google Scholar.

12 F. Hoffmann–La Roche Ltd. v. Empagran S.A., 542 U.S. 155 (2004)Google Scholar.

13 Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 454–55 (2007)Google Scholar; Small v. United States, 544 U.S. 385, 388–89 (2005)Google Scholar.

14 Rasul v. Bush 542 U.S. 466 (2004)Google Scholar.

15 Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993)Google Scholar; Smith v. United States, 507 U.S. 197 (1993)Google Scholar.

16 Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119 (2005)Google Scholar.

17 By “sole” jurisdiction, I mean that only one state has a viable claim to jurisdiction over the situation. By “primary” jurisdiction, I mean that one state has a claim that is recognized as the normal or usual basis for jurisdiction, so that any other claims would be relatively exceptional or unusual. Territorial jurisdiction is the chief example of such primary jurisdiction. For a complete explanation, see part I infra.

18 Elhauge, Einer Statutory Default Rules 28–29 (2008)Google Scholar; Eskridge, William N. Jr. Dynamic Statutory Interpretation 9 (1994)Google Scholar; Easterbrook, Frank H. Text, History, and Structure in Statutory Interpretation, 17 Harv. J. L. & Pub. Pol’y 61, 61 (1994)Google Scholar.

19 The dominant view among courts and scholars is that in trying to elicit meaning from a statutory text, courts can take into account sources beyond the text itself, including its legislative history, its context, and the purpose and structure of the statute. See, e.g., Sunstein, Cass R. Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 437 (1989)Google Scholar. I do not mean to minimize dissents from this position or, more generally, the differences among textualists, intentionalists, dynamic statutory interpreters, pragmatists, and the exponents of other interpretive schools over the relative weight courts should give these tools. See generally Eskridge, William N. Jr. Frickey, Philip P. & Elizabeth, Garrett Legislation and Statutory Interpretation 219–56 (2d ed. 2006)Google Scholar (describing leading theories of statutory interpretation).

20 Shapiro, David L. Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. Rev. 921, 925 (1992)Google Scholar; Sunstein, supra note 19, at 461; Tyler, Amanda L. Continuity, Coherence, and the Canons, 99 NW. U. L. REV. 1389, 1404 (2005)Google Scholar.

21 Eskridge, Frickey, & Garrett, supra note 19, at 342.

22 E.g., Bradley, Curtis A. The Charming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role of International Law, 86 Geo. L.J. 479, 507 (1997)Google Scholar; Brilmayer, Lea The Extraterritorial Application of American Law: A Methodological and Constitutional Appraisal, 50 Law & Contemp. Probs. 11, 17 (1987)Google Scholar; Kramer, Larry Vestiges of Beale: Extraterritorial Application of American Law, 1991 Sup. Ct. Rev. 179, 186 Google Scholar.

23 E.g., Elhauge, supra note 18, at 7–8, 23–29; Farber, Daniel A. Statutory Interpretation and Legislative Supremacy, 78 Geo. L.J. 281, 281–82, 292–93 (1989)Google Scholar. Scholars disagree over whether the relevant intent should be that of the enacting legislature or the current one. Compare ELHAUGE, supra, at 22 (current legislature), with Easterbrook, supra note 18, at 69 (enacting legislature).

24 Elhauge, supra note 18, at 9 –17; Wuerth, Ingrid Brunk Authorizations for the Use of Force, International Law, and the Charming Betsy Canon, 46 B.C. L. Rev. 293, 333 n.181 (2005)Google Scholar. That federal courts should seek to effectuate legislative intent has long been the position of the Supreme Court as well. See, e.g., Schooner Paulina’s Cargo v. United States, 11 U.S. (7 Cranch) 52, 60 (1812).

25 F. Hoffmann–La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004)Google Scholar; Aramco, 499 U.S. 244, 248 (1991)Google Scholar; McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21–22 (1963)Google Scholar; Steele v. Bulova Watch Co., 344 U.S. 280, 292 (1952)Google Scholar (Reed, J., dissenting); Am. Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909)Google Scholar; The Apollon, 22 U.S. (9 Wheat.) 362, 370 (1824); The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 144 (1812)Google Scholar.

26 Smith v. United States, 507 U.S. 197, 204 n.5 (1993)Google Scholar; Aramco, 499 U.S. at 248; Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949).

27 Salev. Haitian Centers Council, Inc., 509 U.S. 155, 188 (1993)Google Scholar; McCulloch, 372 U.S. at 21–22; Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 147 (1957)Google Scholar; United States v. Palmer, 16 U.S. (3 Wheat.) 610, 624 (1818)Google Scholar.

28 Eskridge, William N. Jr. & Frickey, Philip P. Foreword: Law as Equilibrium, 108 Harv. L. Rev. 26, 66 (1994)Google Scholar; Sunstein, supra note 19, at 462; Tyler, supra note 20, at 1419.

29 This article does not address the extraterritorial application of U.S. constitutional protections, which the Supreme Court has historically treated separately from questions of extraterritorial application of statutes. For a proposal to align the scope of extraterritorial constitutional obligations more closely with international norms, see Cleveland, Sarah Embedded International Law and the Constitution Abroad, 110 Colum. L. Rev. 225 (2010)Google Scholar. See also Raustiala, Kal Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law (2009)Google Scholar (analyzing the historical development of the extraterritorial application of the Constitution).

30 In its 1927 decision in the Lotus case, the Permanent Court of International Justice seemed to suggest that states do not need bases for legislative jurisdiction: in the absence of specific limits, they are free to extend their jurisdiction as far as they like. S.S. Lotus (Fr. v. Turk.), 1927 PCIJ (ser. A) No. 10, at 18–19. The language is arguably dictum, because the decision rested on the narrower conclusion that Turkey had the right to exercise legislative jurisdiction over an extraterritorial action based on its effect within Turkish territory (more specifically, on a Turkish vessel that the Court treated as equivalent to Turkish territory). Id. at 23; see Higgins, Rosalyn Problems and Process: International Law and How We use it 77 (1994)Google Scholar; Mann, F. A. The Doctrine of Jurisdiction in International Law, 111 Recueil Des Cours 1, 35 (1964I)Google Scholar. Even as dictum, the suggestion was controversial from the outset. The members of the Court divided evenly (the case was decided by the president’s authority to cast the deciding vote), and the dissenting members particularly disagreed with the idea that in the field of jurisdiction, international law allows all that is not specifically prohibited. S.S. Lotus, supra, at 34 (Loder, J.),60 (Nyholm, J.), 102–03 (Altamira, J.). Whether or not that is really what the Lotus Court intended to state, it is not reflected in state practice. No state acts as if it has the right to set out rules for everyone in the world in the absence of an international rule specifically prohibiting it from doing so. Instead, states regulate on the basis of a limited, widely accepted set of jurisdictional grounds. Ryngaert, Cedric Jurisdiction in International Law 21–22 (2008)Google Scholar; Lowe, Vaughan Jurisdiction, in International Law 335, 341–42 (Evans, Malcolm D. ed., 2006)Google Scholar; see also Brownlie, Ian Principles of Public International Law 301 (6th ed. 2003)Google Scholar (listing critics of S.S. Lotus); Mann, supra, at 35 (same).

31 Consequences may include a refusal by other states to give effect to the extrajurisdictional act, or diplomatic legal claims. OPPENHEIM’S INTERNATIONAL LAW § 143, at 485 (Robert Jennings & Arthur Watts eds., 9th ed. 1992) [hereinafter OPPENHEIM 9th ed.].

32 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ REP. 136, 179, para. 109 (July 9) (“[T]he jurisdiction of States is primarily territorial.…”); Banković v. Belgium, 2001-XII Eur. Ct. H.R. 333, para. 59 (“[F]rom the standpoint of public international law, the jurisdictional competence of a State is primarily territorial.…”); INTERNATIONAL BAR ASSOCIATION, REPORT OF THE TASK FORCE ON EXTRATERRITORIAL JURISDICTION 11 (2009), at http://www.ibanet.org/ [hereinafter IBA REPORT] (“The starting point for jurisdiction is that all states have competence over events occurring and persons … present in their territory. This principle, known as the ‘principle of territoriality’, is the most common and least controversial basis for jurisdiction.”); RESTATEMENT, supra note 10, §402 cmt. b (“Territoriality is considered the normal, and nationality an exceptional, basis for the exercise of jurisdiction.”); BROWNLIE, supra note 30, at 297 (“The starting-point in this part of the law is the proposition that, at least as a presumption, jurisdiction is territorial.”); OPPENHEIM 9th ed., supra note 31, §137, at 458 (“Territoriality is the primary basis for jurisdiction . …”);RYNGAERT, supra note 30, at 42 (“[T]erritoriality is nowadays the primary basis ofjurisdiction.…”). The importance of territory to jurisdiction is underlined by the fact that the officials of a state cannot enforce its laws in the territory of another state without that state’s consent. S.S. Lotus, supra note 30, at 18–19; IBA REPORT, supra, at 9–10; RESTATEMENT, supra, §§432(2), 433(1); BROWNLIE, supra, at 306.

33 Mann, supra note 30, at 26–28; see also JOSEPH STORY, COMMENTARIES ON THE CONFLICT OF LAWS §18–19, at 19–20 (1834) (citing treatises by Boullenois and Vattel published in 1766 and 1758, respectively).

34 RESTATEMENT, supra note 10, §402 cmt. h.

35 United Nations Convention on the Law of the Sea, Art. 92, opened for signature Dec. 10, 1982, 1833 UNTS 397 [hereinafter LOS Convention]; see S.S. Lotus, supra note 30, at 25. When ships of one state are within the territory of another state, they may be subject to the concurrent jurisdiction of both. RESTATEMENT, supra note 10, 502 cmt. d.

36 Lowe, supra note 30, at 343–44. Distinguishing between action and effect can be difficult, however. Mann suggests that only incidents that constitute elements of the offense should provide a basis for territorial jurisdiction, whether they are considered as action or effect. Mann, supra note 30, at 84–87; see S.S. Lotus, supra note 30, at 23.

37 IBA REPORT, supra note 32, at 12.

38 RESTATEMENT, supra note 10, §402(l)(c). According to the Restatement, the exercise of such jurisdiction, as well as any other type of legislative jurisdiction, is acceptable only if it is not “unreasonable.” Id. §403(1); see notes 57–58 infra and corresponding text.

39 A task force of the International Bar Association recently surveyed the extraterritorial application of antitrust laws and concluded that “virtually all jurisdictions apply some form of an ‘effects’ test.” IBA Report, supra note 32, at 63; see id. at 68. Even many critics of the effects test acknowledge its widespread acceptance. See, e.g., Parrish, Austen The Effects Test: Extraterritoriality’s Fifth Business, 61 Vand. L. Rev. 1455, 1473, 1500–01 (2008)Google Scholar. Disputes remain, however, over the effects necessary to support jurisdiction. See Iba Report, supra, at 72.

40 Restatement, supra note 10, §402(2); Oppenheim 9th ed., supra note 31, §138, at 462.

41 Story, supra note 33, §21, at 22–23; Mann, supra note 30, at 26.

42 Lowe, supra note 30, at 347. The United States has long extended its tax laws to its nationals living abroad, as well as laws prohibiting treason and requiring registration for the military draft. See Restatement, supra note. 10, §§411–13. It also applies certain criminal laws extraterritorially to U.S. nationals. See, e.g., 18 U.S.C. §2423(c) (2006) (criminalizing “illicit sexual conduct,” defined to include paying for sex with minors, “in foreign places,” when committed by a U.S. citizen or permanent resident); United States v. Clark, 435 F.3d 1100 (9th Cir. 2006) (upholding application of statute). In general, however, “the United States has only sparingly applied law to individuals residing abroad on the basis of their United States nationality. In part this is because much of the law of persons, such as marriage and divorce, estate and inheritance, has been die domain of the States, . . . and in the Anglo–American tradition such law generally looks to residence or domicile rather than to nationality.” Restatement, supra, §402 reporters’ n.l.

43 Oppenheim 9th ed., supra note 31, § 138, at 463; Fitzmaurice, Gerald The General Principles of International Law Considered from the Standpoint of the Rule of Law, 92 Recueil Des Cours 5, 209 (1957 II)Google Scholar.

44 Restatement, supra note 10, §402 cmt. g; Lowe, supra note 30, at 351–52; Mann, supra note 30, at 91–93. See generally Iba Report, supra note 32, at 146–49 (surveying states’ exercise of passive personality jurisdiction).

45 Restatement, supra note 10, §402(3). Examples of other state interests include “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 customs laws.” Id. cmt. f; see Iba Report, supra note 32, at 149–50; Lowe, supra note 30, at 347–48; Mann, supra note 30, at 94.

46 Generally, universal jurisdiction has supported criminal rather than civil actions. See IBA Report, supra note 32, at 150–61 (surveying state practice). Nevertheless, the Restatement indicates that “international law does not preclude the application of non–criminal law. . . by providing a remedy in tort or restitution for victims.” Restatement, supra note 10, §404 cmt. b. Examples of such universal civil jurisdiction may include the Torture Victim Protection Act of 1991, 28 U.S.C. §1350 note (2006), and the Alien Tort Claims Act, 28 U.S.C. §1350 (2006), although the scope of the latter, in particular, remains unclear. See IBA Report, supra note 32, at 112–17; Donovan, Donald Francis & Anthea, Roberts The Emerging Recognition of Universal Civil Jurisdiction, 100 AJIL 142, 146–49 (2006)Google Scholar. The more general lack of clarity over universal civil jurisdiction is illustrated by the debate over whether Article 14 of the Convention Against Torture, which requires its parties to provide civil redress for acts of torture, applies only to torture committed within the territory of the state in question, or to torture committed anywhere in the world. See IBA Report, supra, at 95–97 (describing opposing views).

47 Restatement, supra note 10, §404; Lowe, supra note 30, at 348. On piracy, see, in this issue, Agora: Piracy Prosecutions, 104 AJIL397 (2010).

48 E.g., Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Arts. 4–8, Dec. 10, 1984, S. Treaty Doc. NO. 20–100 (1988), 1465 UNTS 85; International Convention Against the Taking of Hostages, Arts. 5–8, Dec. 17, 1979,TIASNo. 11, 081, 1316 UNTS 205; Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Arts. 5–8, Sept. 23, 1971, 24 UST 564, 974 UNTS 177; Convention for the Suppression of Unlawful Seizure of Aircraft, Arts. 4–8, Dec. 16, 1970, 22 UST 1641, 860 UNTS 105; see also IBA Report, supra note 32, at 163 (listing other treaties). These agreements require each party to establish its jurisdiction over the covered offenses on specified bases, typically including territoriality, nationality, and registry of ships or aircraft, but also to establish its jurisdiction over the offenses if the accused is present in its territory and it does not extradite him or her to a state that has jurisdiction on one of the specified bases.

49 This is not the first effort to enlist a traffic–light metaphor in the context of jurisdiction. See Lowenfeld, Andreas F. International Litigation and the Quest for Reasonableness 16 (1996)Google Scholar.

50 The chief exception to this statement is the application of the law of a state to the internal affairs of foreign flagged ships within the state’s territory. See text at notes 135–44, 267–76 infra.

51 See text at notes 238–49 infra.

52 For example, courts could look to sources such as the purpose, structure, and history of the statute, if they would normally find such factors relevant to interpreting it. Relevant evidence could also include agency interpretations, to the extent that courts would normally take such interpretations into account, and later references in this article to evidence of legislative intent should be understood to include such interpretations. See generally Elhauge, supranote 18, at 79–111 (reviewing judicial deference to agency interpretations under Chevron U.S.A.Inc. v.Natural Res. Def. Council, Inc., 467 U.S. 837 (1984))Google Scholar.

There is an ongoing debate over how much weight courts should give executive branch interpretations of statutes in the context of foreign affairs. Strong arguments can be made that agencies with expertise in foreign policy are in a better position than courts to assess the political preferences underlying a statute and the effects that its extraterritorial application might have on foreign policy. See generally Bradley, Curtis A. Chevron Deference and Foreign Affairs, 86 Va. L. Rev. 649 (2000)CrossRefGoogle Scholar (discussing judicial deference to the executive in foreign affairs from the perspective of the Chevron doctrine). Posner and Sunstein argue that courts should defer to virtually any executive branch interpretations of ambiguous statutes with respect to foreign affairs (including with respect to their extraterritorial scope), even if the interpretations were made only in the course of litigation. Posner, Eric A. & Sunstein, Cass R. Chevmnizing Foreign Relations Law, 116 Yale L.J. 1170 (2007)CrossRefGoogle Scholar. Jinks and Katyal respond that such complete deference would dangerously shift the balance of power between the executive and Congress, by allowing the executive to avoid otherwise applicable legal constraints. Derek, Jinks & Neal, Kumar Katyal Disregarding Foreign Relations Law, 116 Yale L.J. 1230 (2007)Google Scholar. In addition, complete deference would greatly increase the unpredictability of federal law in this area, since judicial interpretations would depend on case–by–case executive interpretations. The desire to avoid unpredictable results would militate in favor of giving weight only to executive interpretations that are formal, consistent, and made by the agency with relevant expertise.

The thesis of the present article, however, does not depend on—or advocate—a particular resolution of these issues. For present purposes, the point is that in looking for the relevant evidence necessary to extend statutes extraterritorially to yellow–light situations, courts should take into account whatever sources they would normally consider in interpreting ambiguous statutes, and that such sources could, as appropriate, include relevant agency interpretations.

53 See Shapiro, supra note 20, at 934 (distinction between “clear statement” canons and canons that allocate burdens but allow courts to look at all relevant information “may be more a matter of degree than of kind, but it does have analytical and practical value”).

54 See text at notes 145–63 infra.

55 Aramco, 499 U.S. 244, 258 (1991).

56 F. Hoffmann–La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164–69 (2004)Google Scholar.

57 Restatement, supra note 10, §403(1).

58 Other factors include “the existence of justified expectations that might be protected or hurt by the regulation,” “the importance of the regulation to the international political, legal, or economic system,” and “the extent to which the regulation is consistent with the traditions of the international system.” Id. §403(2). The list is not intended to be exhaustive. Id. cmt. b. In effect, drawing on modern trends in conflict of laws, the Restatement suggests that courts should determine which state has the most significant relationship with the situation in question.

59 Ryngaert, supra note 30, at 178–79; Dodge, William S. Extraterritoriality and Conflict–of–Laws Theory: An Argument for Judicial Unilateralism, 39 Harv. Int’l L.J. 101, 139 (1998)Google Scholar; Olmstead, Cecil J. Jurisdiction, 14 Yale J. Int’l L. 468, 472 (1989)Google Scholar; Trimble, Phillip R. The Supreme Court and International Law: The Demise of Restatement Section 403, 89 AJIL 53, 55 (1995)Google Scholar.

60 Tyler, supra note 20, at 1417.

61 Id. at 1415–18; Eskridge & Frickey, supra note 28, at 78–79; Vermeule, Adrian Interpretive Choice, 75 N.Y.U. L. Rev. 74, 128, 143–45 (2000)Google Scholar.

62 Act of Apr. 30, 1790,ch. 9, §8, 1 Stat. 112, 113–14 (“[I]fany person or persons shall commit, upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular state, murder or robbery, or any other offence which if committed within the body of a county, would by the laws of the United States be punishable with death;. . . every such offender shall be deemed, taken and adjudged to be a pirate and felon, and being thereof convicted, shall suffer death . . . .”). The language of section 8 paraphrases Blackstone’s description of piracy. See 4 Blackstone, William Commentaries 66, 72 (1769)Google Scholar. Congress was evidently seeking to fulfill its constitutional mandate to “define and punish Piracies and Felonies committed on the high Seas.” U.S. Const. Art. I, §8.

63 16 U.S. (3 Wheat.) 610 (1818).

64 The issue was presented by a certificate of division issued by Justice Joseph Story and a district judge sitting as a circuit court. Id. at613;see Edward White, G. The Marshall Court and International Law: The Piracy Cases, 83 AJIL 727, 730 n.14 (1989)Google Scholar.

65 16 U.S. at 620.

66 Id. at 631.

67 Id. at 621. Although the Court did not clearly address the question, the defendants were apparently U.S. nationals. Two were described as being “late of Boston,” and one as “late of Newburyport.” Id. at 611.

68 Id. at 620.

69 Id. at 631 (general terms must be limited not only by jurisdictional bounds, but also “to those objects to which the legislature intended to apply them”).

70 Id. In addition, the Court construed similarly general terms in other provisions of the statute as being limited to offenses on board U.S. ships, and concluded that they therefore “furnish[] strong reason for believing that the legislature intended to impose the same restriction on the general words” in the provision at issue. Id. at 632–33.

71 White, supra note 64, at 731.

72 Act of Mar. 3, 1819, ch. 77, §5, 3 Stat. 510, 513–14 (emphasis added); see United States v. Smith, 18 U.S. (5 Wheat.) 153 (1820) (upholding the validity of the statute’s definition of piracy).

73 United States v. Klintock, 18 U.S. (5 Wheat.) 144 (1820).

74 He could not be prosecuted under the 1819 statute because he had seized the ship in 1818.

75 Klintock, 18 U.S. at 148.

76 Id. at 152.

77 See Smith, 18 U.S. at 162 (“[W]hether we advert to writers on the common law, or the maritime law, or the law of nations, we shall find that they universally treat of piracy as an offence against the law of nations.... And the general practice of all nations in punishing all persons, whether natives or foreigners, who have committed this offence against any persons whatsoever, with whom they are in amity, is a conclusive proof that the offence is supposed to depend, not upon the particular provisions of any municipal code, but upon the law of nations, both for its definition and punishment.”).

78 The Court avoided having to overrule Palmer by stating that Klintock, unlike Palmer, concerned a vessel under the control of persons “acting in defiance of all law, and acknowledging obedience to no government whatever.” 18 U.S. at 152.

79 United States v. Furlong, 18 U.S. (5 Wheat.) 184 (1820). The case is also known as United States v. Pirates.

80 The defendant was also accused of violating the Act of 1819, by seizing a foreign vessel. The 1819 statute could not provide a basis for an indictment for murder because the Supreme Court had interpreted the piracy it prohibited, as defined by the law of nations, as only “robbery upon the sea.” Smith, 18 U.S. at 162.

81 Furlong 18 U.S. at 195–96.

82 Id. at 197–98.

83 The 1799 Act provided that any ships that arrived within the limits of a district and departed without reporting to the collector were subject to seizure by the collector. An Act to Regulate the Collection of Duties on Imports and Tonnage, Mar. 2, 1799, ch. 22, §29, 1 Stat. 648–49.The U.S. government argued that by entering the St. Mary’s River, along the border between Georgia and Florida (which at the time was still under Spanish control), the Apollon had entered the district of St. Mary’s, which the statute defined to include the St. Mary’s River. The Apollon, 22 U.S. (9 Wheat.) 362, 368–69 (1824). The U.S. collector had seized the ship after it anchored on the Florida side of the boundary.

84 22 U.S. at 370. Normally, those places and persons would be the nation’s own territories and nationals. Id. After acknowledging that under general principles of the law of nations, a boundary river such as the St. Mary’s “must be considered as common to both nations, for all purposes of navigation,” the Court rejected the government’s argument that the 1799 Act extended to ships transiting the river on the way to a port in Spanish territory. Id. at 369–70. The Court also applied the presumption against extrajurisdictionality to enforcement, stating that even if the 1799 law were interpreted to require the Apollon to enter a U.S. port, the extraterritorial seizure of the ship would be illegal. Id. at 371.

85 Born, Gary B. A Reappraisal of ‘the Extraterritorial Reach of ‘U.S. law, 24 Law & Pol’y Int’l Bus. 1, 8–10 (1992)Google Scholar; Bradley, Curtis A. Territorial Intellectual Property Rights in an Age of Globalism, 37 Va. J. Int’l L. 505, 511 (1997)Google Scholar; Dodge, William S. Understanding the Presumption Against Extraterritoriality, 16 Berkeley J. Int’l L. 85, 85 (1998)Google Scholar.

86 The Act of 1790 applied only to offenses committed “upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular state.” See supra note 62. The 1819 statute enacted in response to Palmer provided more succinctly for the punishment of “the crime of piracy, as defined by the law of nations,” when committed “on the high seas.” See supra note 72 and corresponding text.

87 To the extent that the actions took place on U.S. vessels, the Court probably would have considered them within U.S. territorial jurisdiction, because throughout the nineteenth century, the Court regarded U.S.–flagged vessels as if they were floating bits of U.S. territory. See St. Clair v. United States, 154 U.S. 134, 152 (1894)Google Scholar; Wilson v. McNamee, 102 U.S. 572, 574 (1880)Google Scholar; Crapo v. Kelly 83 U.S. 610, 624 (1872)Google Scholar; The Scotia, 81 U.S. 170, 184 (1871); see also United States v. Smiley, 27 F. Cas. 1132, 1134 (C.C.N.D. Cal. 1864) (No. 16, 317).

88 United States v. Klintock, 18 U.S. (5 Wheat.) 144, 152 (1820).

89 United States v. Furlong, 18 U.S. (5 Wheat.) 184, 197–98 (1820).

90 Id. at 197.

91 Similarly, in The Apollon, the question was not whether U.S. law should apply beyond U.S. territory, but rather whether and how to apply U.S. law to a river over which the United States and Spain jointly had jurisdiction. Had the Court simply applied a presumption against extraterritoriality, it would have asked whether the vessel sailed through the U.S. side of the St. Mary’s, since the boundary line between the two countries was set by treaty as the midpoint line of the river. 22 U.S. (9 Wheat.) 362, 369 (1824). It did not do so. After emphasizing the importance of staying within the bounds set by international law on legislative jurisdiction, the Court stated that both countries had equal rights to navigation in the entire river, and that applying the statute to ships bound up the river to ports on the Spanish side “would be an usurpation of exclusive jurisdiction over all the navigation of the river.” Id. at 370. It was to avoid that result that the Court interpreted the statute to “compel an entry of all vessels coming into our waters, being bound to our ports. “Id. (emphasis added). The distinction between vessels to which the law applied and those to which it did not apply did not depend on whether the vessels were in U.S. territory, but on whether they were subject to U.S. jurisdiction—that is, whether they were headed up the river, over which the United States and Spain shared rights of navigation, to a U.S. port (in which case they were subject to U.S. jurisdiction) or to a Spanish port (in which case they were not, even if they crossed over the midpoint line of the river into U.S. territory).

92 22 U.S. at 370.

93 Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804)Google Scholar.

94 213 U.S. 347(1909).

95 American Banana alleged that the United Fruit Company had induced the government of Costa Rica to interfere with and eventually seize an American Banana plantation in Panama. Id. at 354–55.

96 Id. at 357 (emphasis added).

97 Id. at 355 (emphasis added). Because the Court viewed the actions as outside U.S. jurisdiction and within that of another country, the Court saw them as subject to “the general and almost universal rule . . . that the character of an act as lawful or unlawful must be determined wholly by the law of the country where the act is done.” Id. at 356. Holmes took this rule from contemporary views of conflict of laws, rather than from public international law. The idea that the law of the place where the wrongful act occurs governs the lawfulness of the act was the basis for Joseph Beale’s “vested rights” approach to conflicts, which culminated in the first Restatement of Conflict of Laws in 1934. See Born, supra note 85, at 17; Kramer, supra note 22, at 186.

98 213 U.S. at 357 (emphasis added).

99 Id. at 356.

100 “In Anglo–American law the extension of comity to another nation is viewed as a unilateral decision of the forum, not as an act required by a rule of the public international system,” as Harold Maier observed. “This emphasis on the voluntary nature of the doctrine has led to its use to describe an amorphous never–never land whose borders are marked by fuzzy lines of politics, courtesy, and good faith.” Maier, Harold G. Extraterritorial Jurisdiction at a Crossroads: An Intersection Between Public and Private International Law, 76 AJIL 280, 281 (1982)Google Scholar

101 213 U.S. at 356. Minimizing these exceptions, Kal Raustiala and Austen Parrish argue that Holmes’s opinion followed the prevailing view of international law at the time, which did not allow states to extend their laws to acts within the territory of a coequal sovereign. RAUSTIAIA, supra note 29, at 97–99; Parrish, supra note 39, at 1466–67. The law was not as strict as they indicate, however. Raustiala cites Oppenheim, who opposed “effects” jurisdiction over acts committed by foreigners in foreign countries. RAUSTIALA, supra, at 99. But Oppenheim’s 1912 edition acknowledged that “[m]any” states claimed such jurisdiction. 1 L. OPPENHEIM, INTERNATIONAL LAW §147, at 203–04 (2d ed. 1912) [hereinafter OPPENHEIM 1912]. On that basis, other scholars had already treated domestic effects as a valid basis of jurisdiction, as Oppenheim’s next edition, in 1920, recognized. See id. §147, at 240 n.l (Ronald F. Roxburgh ed., 3d ed. 1920) (citing sources). The Permanent Court of International Justice was soon to agree. S.S. Lotus, supra note 30.

Moreover, whatever the status of effects under international law in 1909, the law certainly allowed nations to extend their laws to their own nationals in foreign territory, the situation in American Banana. OPPENHEIM 1912, supra, §145, at 202–03. The Court itself had recognized the nationality basis for jurisdiction for more than a century. Worcester v. Georgia, 31 U.S. 515, 542 (1832); The Apollon, 22 U.S. (9 Wheat.) 362, 370 (1824); Rose v. Himely, 8 U.S. (4 Cranch) 241, 279 (1807). As a result, nationals in foreign territory could be subject to more than one set of laws. United States v. Furlong, 18 U.S. (5 Wheat.) 184,197–98 (1820); OPPENHEIM 1912, supra, §145, at 203. It is true that in The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812), the Court had said that “[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute.” But the issue in that case was whether a U.S. court had jurisdiction to adjudicate title to a French warship in a U.S. port. Nothing in the decision casts doubt on the commonsense understanding that France also had legislative, jurisdiction over its own ship while it was in U.S. territory. See Société Nationale Industrielle Aérospatiale v. U.S. District Court, 482 U.S. 522, 557 & n.12 (1987) (Blackmun, J., dissenting) (stating that “each state has a monopoly on the exercise of governmental power within its borders” and citing Schooner Exchange as articulating that principle).

102 Old Dominion S.S. Co. v. Gilmore (The Hamilton), 207 U.S. 398,403,405 (1907) (“[T]he bare fact of the parties being outside the [state’s] territory in a place belonging to no other sovereign would not limit the authority of the State, as accepted by civilized theory. … [W]e construe the statute as intended to govern all cases which it is competent to govern, or at least not to be confined to deaths occasioned on land.”).

103 In fact, it cited The Hamilton for the proposition that “in regions subject to no sovereign, like the high seas, or to no law that civilized countries would recognize as adequate, such countries may treat some relations between their citizens as governed by their own law.” 213 U.S. at 355–56 (citing 207 U.S. at 403).

104 In one early case, the Court did imply that the presumption might apply. In United States v. Bowman, 260 U.S. 94 (1922), the indictment charged the defendants with violating the law while on a U.S. ship on the high seas and in a Brazilian port, as well as while in Brazil. The Supreme Court distinguished between statutes addressing crimes that “affect the peace and good order of the community” and statutes defending the government from obstruction or fraud, and held that while the first class was subject to the presumption against extraterritoriality, the second was not. Id. at 98. By not differentiating the application of the statute to the defendants on the high seas and in Brazil, the Court’s opinion could be read as suggesting that if the presumption against extraterritoriality did apply, it would apply to both situations. Because the Court decided not to apply the presumption at all, however, any such suggestion was not necessary to its holding.

105 289 U.S. 137 (1933).

106 Id. at 145 n.l (the statute made punishable murder and other offenses in the U.S. criminal code, inter alia, “[w]hen committed upon the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State on board any vessel belonging... to the United States or any citizen thereof”).

107 Id. at 155.

108 Id. at 155–56.

109 Id. at 159. The Court said that if the country with jurisdiction over the river where the ship was lying sought to exercise jurisdiction as well, “[t]here is not entire agreement among nations or the writers on international law as to which sovereignty should yield to the other,” but that the U.S. position was that “in the case of major crimes, affecting the peace and tranquillity of the port, the jurisdiction asserted by the sovereignty of the port must prevail over that of the vessel.” Id, at 158 (citing Mali v. Keeper of the Common Jail (Wildenhus’s Case), 120 U.S. 1 (1887)).

110 In Maul v. United States, 274 U.S. 501, 504 (1927)Google Scholar, for example, the Court was asked to determine whether a statute authorizing customs officers to seize any vessel liable to seizure under the revenue laws “as well without as within their respective districts” allowed the Coast Guard to seize a ship on the high seas, or whether its language should be limited to actions within U.S. waters. The Court refused to interpret the statute restrictively, as a presumption against extraterritoriality would have suggested that it should. Instead, it emphasized that the statute did not exceed international limits on jurisdiction. Id. at 511 (“The high sea is common to all nations and foreign to none; and every nation having vessels there has power to regulate them and also to seize them for a violation of its laws.”).

Similarly, in Skiriotes v. Florida, 313 U.S. 69 (1941), a defendant convicted of violating a Florida statute regulating the taking of sponges argued that Florida’s criminal jurisdiction could not extend beyond U.S. territory. In rejecting the argument, the Court stated that territorial limits were “beside the point,” because “the United States is not debarred by any rule of international law from governing the conduct of its own citizens upon the high seas or even in foreign countries when the rights of other nations or their nationals are not infringed.” Id. at 73. Since the United States could control its citizens’ actions on the high seas, so could Florida. Id. at 77.

111 See note 87 supra.

112 262 U.S. 100, 123(1923).

113 Id. at 128 –29. The Skiriotes Court did not base its decision on the idea that a vessel at sea is effectively a floating bit of territory (although it did not reject that view), but rather on “the broader principle of the power of a sovereign State to govern the conduct of its citizens on the high seas.” 313 U.S. at 78.

114 However, most of the statutes at issue in these cases explicitly applied to ships or actions at sea, and thus could have been construed to overcome a presumption against extraterritoriality. The application of statutes of more general scope to ships on the high seas could have raised more difficult questions of legislative intent.

115 Steele v. Bulova Watch Co., 344 U.S. 280, 291 (1952)Google Scholar (Reed, J., dissenting) (citing The Hamilton and Skiriotes). The river in Flores was within the sovereign territory of another country, but it apparently made no effort to exercise jurisdiction over the U.S. ship. United States v. Flores, 289 U.S. 137, 159 (1933).

116 Am. Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909)Google Scholar.

117 260 U.S. 94 (1922). The case also concerned actions by the defendants on the high seas. See note 104 supra.

118 260 U.S. at 102. The Court noted that another, uncaptured defendant in Bowman was British, and said that “it will be time enough to consider what, if any, jurisdiction the District Court below has to punish him when he is brought to trial.” Id. at 102–03.

119 Blackmer v. United States, 284 U.S. 421 (1932). The statute authorized the issuance of subpoenas. In opposing its extension to a U.S. citizen in France, Blackmer’s counsel argued that “[t]his nation is an equal sovereignty, which, in the absence of treaty, can not exercise power extraterritorially.” Id. at 424. The Court responded that as a citizen of the United States, Blackmer “was bound by its laws made applicable to him in a foreign country,” explaining that “[w]ith respect to such an exercise of authority, there is no question of international law, but solely of the purport of the municipal law which establishes the duties of the citizen in relation to his own government.” Id. at 436–37 (footnote omitted). In support of the principle of legislative jurisdiction over nationals abroad, the Court cited several international law treatises and quoted Oppenheim: “The law of Nations does not prevent a State from exercising jurisdiction over its subjects travelling or residing abroad, since they remain under its personal supremacy.” Id. at 437 n.2 (quoting Oppenheim, supra note 101, §145, at 281 (Arnold D. McNair ed., 4th ed. 1928)); see also Steele, 344 U.S. at 285–86 (international law does not prohibit the United States from governing the conduct of its own citizens abroad).

120 See Steele, 344 U.S. at 285; Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949); N.Y. Cent. R.R. v. Chisholm, 268 U.S. 29, 31 (1925).

121 Foley Bros., 336 U.S. at 282–83 (citing Eight Hour Law, 54 Stat. 884 (1940)).

122 Id. at 285.

123 See text at note 15 supra (quoting Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804)).

124 Chisholm, 268 U.S. at 31; United States v. Bowman, 260 U.S. 94, 98 (1922)Google Scholar.

125 Steele, 344 U.S. at 285; Blackmer v. United States, 284 U.S. 421, 437 (1932)Google Scholar.

126 336 U.S. at 286–90.

127 Id. at 285.

128 Bowman, 260 U.S. at 98 (holding that the presumption against extraterritoriality should apply to federal statutes addressing crimes against “the peace and good order of the community,” such as murder and robbery, but not to laws that defend the government against obstruction or fraud, because in the second case, “Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense”); see also Chisholm, 268 U.S. at 31 (referring to the possibility that, in the absence of a clearer indication of congressional intent, the “circumstances” of a case might justify extraterritorial application).

129 See, e.g., Kawakita v. United States, 343 U.S. 717 (1952)Google Scholar (upholding conviction of U.S./Japanese dual national resident in Japan for treason during the Second World War); Cook v. Tait 265 U.S. 47 (1924)Google Scholar (upholding the imposition of income tax on U.S. citizens residing abroad); see also United States v. Aluminum Co. of Am. (Alcoa), 148 F.2d 416, 443 (2d Cir. 1945) (upholding extension of Sherman Act extraterritorially based on conclusion that the application was within the jurisdiction of the United States under international norms).

130 See note 92 supra and corresponding text.

131 Oppenheim 9th ed., supra note 31, §138, at 463 & n.9.

132 The leading example is antitrust law, whose extraterritorial application to non–U.S. nationals was upheld in Alcoa, 148 F.2d 416. Writing for the Second Circuit, Judge Learned Hand acknowledged the presumption against extrajurisdictionality, stating that “it is quite true that we are not to read general words, such as those in this Act, without regard to the limitations customarily observed by nations upon the exercise of their powers.” Id. at 443. But he found it to be “settled law” that “any state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the state reprehends.” Id. For a description of the response by foreign governments to the extraterritorial extension of U.S. antitrust law, see Swaine, Edward T. The Local Law of Global Antitrust, 43 Will. & Mary L. Rev. 627, 641–46 (2001)Google Scholar.

133 A notable example is the Court’s treatment of U.S. military bases in foreign countries. Because such bases were under at least partial U.S. legislative control, but were also within the territory of another country, they were neither clearly within nor clearly without the scope of the presumption. In Vermilya–Brown v. Connell, 335 U.S. 377 (1948), the Court considered whether the Fair Labor Standards Act applied to a U.S. base in Bermuda, which in 1940 had been made the subject of a long–term lease from the United Kingdom. After noting that the lease agreement authorized the United States to regulate hours and wages in the leased area, the Court considered whether it fell within the scope of the FLSA as a matter of statutory interpretation. Id. at 383. The statute expressly applied to commerce “among the several States,” and defined “State” to include “any . . . possession of the United States.” Id. at 379. Although “possession” might be read to include the Bermuda base, the Court found “no such definite indication of the purpose to include or exclude leased areas . . . in the word ‘possession.’” Id. at 387–88. The Court therefore looked to the broad purpose of the statute, and said, “Where as here the purpose is to regulate labor relations in an area vital to our national life, it seems reasonable to interpret its provisions to have force where the nation has sole power, rather than to limit the coverage to sovereignty.” Id. at 390. The absence of any reference to the presumption against extraterritoriality thus implied that the presumption did not apply to extraterritorial areas under U.S. control.

Only a year later, in United States v. Spelar, 338 U.S. 217 (1949), the Court had to decide whether the Federal Tort Claims Act applied to a base in Newfoundland leased to the United States under the same terms as the Bermuda base at issue in Vermilya–Brown. The Court held that it did not, because the statute provided that it did not apply to “any claim arising in a foreign country.” Id. at 218–19. Rather than stop there, however, the Court referred to the presumption against extraterritoriality, stating, “That presumption, far from being overcome here, is doubly fortified by the language of this statute and the legislative purpose underlying it.” Id. at 222. Spelar thus suggested strongly that the presumption against extraterritoriality would apply to situations involving U.S. control of territory within another state’s sovereign jurisdiction.

134 Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949)Google Scholar.

135 The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 144 (1812).

136 Brown v. Duchesne 60 U.S. 183 (1856)Google Scholar.

137 Halleck, H. W. International Law, ch. VII, §26, at 172 (1861)Google Scholar.

138 Mali v. Keeper of the Common Jail (Wildenhuss Case), 120 U.S. 1, 18 (1887)Google Scholar.

139 See, e.g., McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21 (1963)Google Scholar; Lauritzen v. Larsen 345 U.S. 571, 577 (1953)Google Scholar.

140 McCulloch, 372 U.S. at 21, and Lauritzen, 345 U.S. at 586, respectively.

141 Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 142 (1957)Google Scholar; Cunard S.S. Co. v. Mellon, 262 U.S. 100, 125 (1923)Google Scholar. Although Benz described the “internal affairs” rule as discretionary, it nevertheless emphasized the potential for international discord and retaliation, and declined to extend U.S. law to a foreign ship in the absence of “the affirmative intention of the Congress clearly expressed.” Benz, 353 U.S. at 147.

142 See Brownlie, supra note 30, at 315–17 (describing different positions on whether territorial states abstain from exercising jurisdiction over the internal affairs of foreign–flagged ships on the basis of law or of discretion). The confusion may also stem from different readings of Wildenhus itself, which was somewhat ambiguous on whether the general norm that the particular treaty reflected was a matter of comity or “general public law.” Wildenhus’s Case, 120 U.S. at 12.

143 McCulloch, 372 U.S. at 21–22 (quoting Benz, 353 U.S. at 147).

144 Id; Lauritzen, 345 U.S. at 578; Cunard, 262 U.S. at 133 (Sutherland, J., dissenting).

145 Aramco, 499 U.S. 244.

146 Id. at 260–61 (Marshall, J., dissenting).

147 Id. at 248 (majority opinion) (citing McCulloch, 372 U.S. at 20–22; Benz, 353 U.S. at 147).

148 Specifically, he grafted language from Benz to language from Foley Bros., saying, “unless there is ‘the affirmative intention of the Congress clearly expressed [Benz],’ we must presume it ‘is primarily concerned with domestic conditions [Foley Bros.].’” Id. at248 (citations omitted); see also id. at 258 (referring to the “need to make a clear statement that a statute applies overseas”) (emphasis added); Astoria Fed. Sav. & Loan Ass’nv. Solimino, 501 U.S. 104, 109 (1991)Google Scholar (citing Aramco as requiring a “plain statement of extraterritorial statutory effect”). Dodge notes that Rehnquist’s “rejection of arguments based on boilerplate language, implications from exemptions in Title VII, legislative history, and administrative interpretations . . . [also] suggested that he was looking for a clear statement from Congress in the language of the statute itself.” Dodge, supra note 85, at 93.

149 In later decisions, the Court has sometimes referred to the need to supply “clear evidence” of congressional intent, Smith v. United States, 507 U.S. 197, 204 (1993), and has said that the necessary “affirmative evidence” is missing from the history of the statute in question as well as from its text, Sale v. Haitian Centers Council, Inc., 509 U.S. 15 5, 176 (1993) – The Court has never made clear, however, what kind of evidence of congressional intent, if any, short of a clear statement in the text itself would suffice to overcome the presumption.

150 In dissent, Justice Thurgood Marshall pointed out that the majority was “drawing on language from cases involving a wholly independent rule of construction,” and argued that “it is the weak presumption of Foley Brothers, not the strict clear–statement rule of Benz and McCulloch that should govern our inquiry here.” Aramco, 499 U.S. at 264, 265–66.

151 507 U.S. 197(1993).

152 Id. at 199 (quoting 28 U.S.C. §2680(k)).

153 Id. at 204.

154 Although some countries have made territorial claims to parts of Antarctica, the United States does not recognize any such claim. In any event, those claims are effectively “frozen” under the Antarctic Treaty, Art. IV, Dec. 1, 1959, 12 UST 794, 402 UNTS 71; see Smith, 507 U.S. at 198 n.l.

155 Aramco, 499 U.S. at 248; Foley Bros. v. Filardo. 336 U.S. 281, 285 (1949)Google Scholar.

156 Protocol Relating to the Status of Refugees, Art. 33, Jan. 31, 1967, 19 UST 6259, 606 UNTS 267 (incorporating pertinent part of the Convention Relating to the Status of Refugees, July 28, 1951, 189 UNTS 150, to which the United States is not party); Immigration and Nationality Act of 1952, §243(h) (codified as amended at 8U.S.C. §1231(b)(3) (2006)).

157 Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 173–74, 188 (1993)Google Scholar.

158 Id. at 173, 188. The Sale Court, id. at 173, also cited Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 440 (1989), which had decided that an explicit statutory exception to foreign sovereign immunity for torts occurring “in the United States” did not apply to an attack on a foreign–flagged oil tanker on the high seas. Although Amerada Hess could have reached that conclusion based on the plain meaning of the statutory language, Chief Justice Rehnquist, writing for the Court, instead cited the presumption against extraterritoriality, id. at 440 – 41, foreshadowing its later use in Sale to prevent the application of U.S. law to U.S. ships.

159 See text at notes 102–15 supra.

160 Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993)Google Scholar.

161 Id. at 795–96.

162 See Kramer, Larry Extraterritorial Application of American Law After the Insurance Antitrust Case: A Reply to Professors Lowenfeld and Trimble, 89 AJIL 750, 752–54 (1995)Google Scholar (describing “considerable tension” between Hartford and Aramco).

163 See Eskridge, supra note 18, at 283; see also Brudney, James J. & Ditslear, Corey Canons of Construction and the Elusive Quest for Neutral Reasoning, 58 Vand. L. Rev. 1, 108–09 (2005)Google Scholar (reaching the same conclusion about the Rehnquist Court’s use of canons generally). Similar charges have been leveled at the four–Justice dissent in Hartford, which argued that the Court should rely on the older presumption against extrajurisdictionality to preclude the extraterritorial application of the Sherman Act in that case. 509 U.S. at 813–21 (Scalia, J., dissenting); see Kramer, supra note 162, at 755 n.31.

164 Rasul v. Bush, 542 U.S. 466, 480 (2004)Google Scholar.

165 Id. at 471.

166 Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993)Google Scholar; Smith v. United States, 507 U.S. 197 (1993)Google Scholar.

167 F. F. Hoffmann–La Roche v. Empagran S.A., 542 U.S. 155, 164 (2004)Google Scholar (emphasis added).

168 The Court was construing the Foreign Trade Antitrust Improvements Act of 1982, which provides that the Sherman Act does not apply to “conduct involving trade or commerce. . . with foreign nations” unless that conduct has a “direct, substantial, and reasonably foreseeable effect” on domestic commerce and such effect gives rise to a claim under the Sherman Act. 15 U.S.C. §6a (2006).

169 Empagran, 542 U.S. at 164.

170 Restatement, supra note 10, §403; see notes 57–58 supra and corresponding text.

171 Romero v. Int’l Terminal Operating Co., 358 U.S. 354 (1959)Google Scholar; Lauritzen v. Larsen, 345 U.S. 571 (1953)Google Scholar. In Lauritzen, for example, the Court reviewed the factors that “are generally conceded to influence choice of law to govern a tort claim,” including the place of the wrongful act, the nationality of the injured person, and the nationality of the shipowner. Id. at 583, 586, 587. In practice, though, even in these cases the Court relied primarily on the rule of legislative jurisdiction that the flag state normally has jurisdiction over the internal affairs of its ships. See id. at 585; Romero, 358 U.S. at 384.

172 McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 19, 21 (1963)Google Scholar.

173 Compare Int’l Longshoremen’s Local 1416 v. Ariadne Shipping Co., 397 U.S. 195 (1970) (holding that longshoring activities by U.S. residents in a U.S. port did not fall within the internal affairs exception and thus were covered by the National Labor Relations Act), with Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306 (1970) (applying balancing test to suit brought under Jones Act). Before Empagran, the closest the Court had come to adopting the Restatement approach outside the context of the Jones Act was the dissenting opinion by Justice Scalia in Hartford, which applied the Restatement factors to the possible extension of antitrust law to foreign conduct but failed to convince the majority to do likewise. Hartford Fire Ins. Co. v. California, 509 U.S. 764, 813–21 (1993)Google Scholar; see notes 263–66 infra.

174 See notes 232–33 infra and corresponding text.

175 Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119 (2005)Google Scholar.

176 Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 454–55 (2007)Google Scholar; Small v. United States, 544 U.S. 385, 388–89 (2005)Google Scholar; Pasquantino v. United States, 544 U.S. 349, 373 (2005)Google Scholar (Ginsburg, J., dissenting). In Microsoft, the Court cited Empagran, but only in support of the presumption against extraterritoriality, not the Restatement standard. Microsoft, 550 U.S. at 455.

177 See notes 25–27 supra. Of course, the canons may also reflect other, unstated objectives. See note 163 supra. Whether or not the Court may have had such motivations, the question remains which canon best effectuates the stated reasons for restricting the scope of federal statutes.

178 E.g., The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 144 (1812)Google Scholar; The Apollon, 22 U.S. (9 Wheat.) 362, 370 (1824)Google Scholar; Am. Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909)Google Scholar; Steelev. Bulova Watch Co., 344 U.S. 280, 292 (1952)Google Scholar (Reed, J., dissenting); McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21–22 (1963)Google Scholar; Aramco, 499 U.S. 244, 248 (1991)Google Scholar; F. Hoffmann–La Roche v. Empagran S.A., 542 U.S. 155, 164 (2004)Google Scholar.

179 See, e.g., United States v. Bowman, 260 U.S. 94, 102 (1922)Google Scholar; Blackmer v. United States, 284 U.S. 421, 439 (1932)Google Scholar; Lauritzen v. Larsen, 345 U.S. 571, 577 (1953)Google Scholar.

180 372 U.S. at 21.

181 Id. at 21–22.

182 Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804)Google Scholar.

183 Wuerth, supra note 24, at 333 n. 181 (“ [E] very commentator to consider the Charming Betsy canon at length concludes that, at least to some extent, it is properly based on the presumed intentions of Congress. More importantly, the courts seem to employ the canon because they believe that it maximizes the preferences of Congress.”) (citations omitted). Even those generally skeptical that judicial canons reflect congressional intent may agree that with respect to Charming Betsy, the rationale “still carries some force.” Bradley, supra note 22, at 533.

184 Higgins, supra note 30, at 56.

185 Restatement, supra note 10, §403(2).

186 See note 59 supra.

187 Maier, supra note 100, at 317.

188 McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 19 (1963)Google Scholar.

189 Aramco, 499 U.S. 244, 248 (1991).

190 Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 173–74 (1993)Google Scholar; Smith v. United States, 507 U.S. 197, 204 n.5 (1993)Google Scholar.

191 E.g., LOS Convention, supra note 35, Art. 194(2) (“States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment. . . .”). Although the United States is not party to the Convention, it regards almost all of its provisions as reflecting customary international law. Article 194 echoes Principle 21 of the 1972 Stockholm Declaration on the Human Environment, June 16, 1972, 11 ILM 1416(1972),which says that states have”the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” For duties of the flag state expressly relating to ships at sea, see, for example, the LOS Convention, supra, Arts. 94, 98–100, 108, 109, 117, 210, 211, 217. The last of these requires the flag state to ensure compliance with international rules and standards regarding pollution from ships, and expressly applies “irrespective of where a violation occurs.”

192 Madrid Protocol on Environmental Protection to the Antarctic Treaty, Art. 8 & Annex I, Oct. 4, 1991, 30 ILM 1461 (1991) (requiring each party to assess the environmental impacts of its activities in Antarctica, including in particular its bases and expeditions).

193 See note 48 supra.

194 Some important U.S. laws explicitly apply extraterritorially to places such as U.S.–registered ships and aircraft. Many federal criminal prohibitions, for example, are extended to the U.S. “special maritime and territorial jurisdiction,” which is defined to include, inter alia, U.S. vessels and aircraft on or over the high seas, and U.S. spacecraft in flight, as well as “[a]ny place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States.” 18 U.S.C. §7(7) (2006).

195 For example, the International Covenant on Civil and Political Rights requires each of its parties to respect and ensure the rights in the Covenant “to all individuals within its territory and subject to its jurisdiction.” International Covenant on Civil and Political Rights, Art. 2(1), Dec. 16, 1966, S. Exec. Rep. No. 23–102 (1992), 999 UNTS 171. The United States has read this language to impose obligations on it only to those both within its territory and subject to its jurisdiction. Cleveland, supra note 29, at 251–52. But the International Court of Justice has interpreted the provision to mean that the Covenant “is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.” Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra note 32, at 180, para. 111. The Human Rights Committee and many scholars have taken this position as well. Human Rights Committee, General Comment 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, para. 10, UN Doc. CCPR/C/21 /Rev. 1 /Add. 13 (May 26, 2004); Buergenthal, Thomas To Respect and to Ensure: State Obligations and Permissible Derogations, in the International Bill of Human Rights 72, 7A. (Louis, Henkin ed., 1981)Google Scholar; Meron, Theodor Extraterritoriality of Human Rights Treaties, 89 AJIL 78, 79 (1995)Google Scholar. But see Dennis, Michael J. Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation, 99 AJIL 119 (2005)CrossRefGoogle Scholar (arguing that the drafting history suggests that the requirements of territory and jurisdiction must be met).

Similarly, the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, supra note 48, Art. 2(1), obligates its parties to take effective measures to prevent torture “in any territory under its jurisdiction.” Again, the United States has taken the position that its obligations are limited to its sovereign territory. Manfred, Nowak Obligations of States to Prevent and Prohibit Torture in an Extraterritorial Perspective, in Universal Human Rights and Extraterritorial Obligations 11, 17 (Gibney, Mark & Skogly, Sigmn eds., 2010)Google Scholar. The Committee Against Torture has disagreed, interpreting the language to include “all areas where the State party exercises, directly or indirectly, in whole or in part, de jure or de facto effective control, in accordance with international law.” Committee Against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, para. 16, UN Doc. CAT/C/GC/2 (Jan. 24, 2008); see Cleveland, supra, at 256–59; Nowak, supra, at 15.

196 Src Concluding Observations of the Human Rights Committee, United States of America, paras. 10, 16, UN Doc. CCPR/C/USA/CO/3 (Sept. 15, 2006) (rejecting U.S. argument that U.S. obligations under the Covenant, including to provide detainees with judicial review of the legality of their detention, did not extend to Guantanamo Bay). Congress later amended U.S. law to bar habeas suits by detainees, but the Supreme Court held that constitutional habeas protections continue to apply and that the alternative legal procedures Congress had instituted were not an effective substitute for habeas review. Boumediene v. Bush, 553 U.S. 723 (2008).

197 Vienna Convention on the Law of Treaties, Art. 26, opened for signature May 23, 1969, 1155 UNTS 331.

198 Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993)Google Scholar.

199 Id. at 207 (Blackmun, J., dissenting).

200 Henckaerts, Jean–marie, Mass Expulsion in Modern International Law and Practice 103 (1995)Google Scholar. The author quotes Louis Henkin as stating that it is “incredible that states that had agreed not to force any human being back into the hands of his/her oppressors intended to leave themselves—and each other—free to reach out beyond their territory to seize a refugee and to return him/her to the country from which he/she sought to escape.” Id. The interpretation by the United States of its obligations was strongly condemned by the UN High Commissioner for Refugees and the Inter–American Commission for Human Rights. Id. at 103—04. See generally Gammeltoft–Hansen, Thomas Growing Barriers: International Refugee Law, in Universal Human Rights and Extraterritorial Obligations, supra note 195, at 55 Google Scholar.

201 Aramco, 499 U.S. 244, 248 (1991)Google Scholar; Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949)Google Scholar.

202 See Smith v. United States, 507 U.S. 197, 204 n.5 (1993)Google Scholar.

203 The New Shorter Oxford English Dictionary 725 (Lesley Brown ed., 1993) (definition 4).

204 Of course, Congress might well have reasons to distinguish the application of laws within U.S. territory from the application of such laws to extraterritorial locations under complete U.S. control. Through the use of their normal interpretive tools, courts might conclude that laws were not intended to apply to such locations. And if a court overextended a law contrary to Congress’s intent, Congress could always respond by limiting its application. There would be little or no danger that in the interim such a mistaken interpretation could inadvertently trigger foreign conflict, since it would be limited to places over which the United States had sole jurisdiction.

205 As noted above, international law prohibits governments from enforcing their laws within the territory of other states. See note 32 supra.

206 The relatively greater difficulty in enforcing laws in such situations, however, does support a soft presumption against extending the laws so far.

207 Born, supra note 85, at 74.

208 Dodge, supra note 85, at 118–19; see also Trachtman, Joel P. Conflict of Laws and Accuracy in the Allocation of Government Responsibility, 26 Vand. J. Transnat’l L. 975, 986 (1994)Google Scholar (“The effects test. . . should be refined and adapted as a foundation for all conflict of laws rules.”).

209 Kramer, supra note 162, at 756. The best–known example of such conflict is the reaction of other states to the extraterritorial extension of U.S. antitrust laws. See Raustiala, supra note 29, at 115–17; Parrish, supra note 39, at 1478–93.

210 Parrish, supra note 39, at 1493–96.

211 See note 52 supra.

212 Elhauge, supra note 18, at 204.

213 Dodge makes a similar preference–eliciting argument in favor of his position: he claims that the conflicts that result from a general application of U.S. law to foreign actions with domestic effects will increase incentives for international agreements to resolve such conflicts, and points to bilateral cooperation agreements that have been reached in antitrust law, a particularly fertile source of conflicts. Dodge, supra note 85. Such agreements, however, have not been followed by general multilateral agreements coordinating antitrust policy. See generally Iba Report, supra note 32, at 71–72; Swaine, supra note 132. Although Elhauge believes that such a “treaty–eliciting” approach can make sense “in theory,” he doubts its utility in the context of antitrust. Elhauge, supra note 18, at 209 –10. More generally, estimating the likelihood that increasing conflicts would result in international agreement would involve questions of foreign policy that courts are not equipped to address.

214 Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 188 (1993)Google Scholar.

215 E.g., McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S.10, 21–22 (1963)Google Scholar; Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 147 (1957)Google Scholar; United States v. Palmer, 16 U.S. (3 Wheat.) 610, 624 (1818)Google Scholar.

216 See Bradley, supra note 85, at 550–53; Bradley, supra note 22, at 525–26.

217 See Bradley, supra note 85, at 555; Maier, supra note 100, at 317; Trimble, Phillip R. A Revisionist View of Customary International Law, 33 UCLAL. Rev. 665, 704–05 (1986)Google Scholar.

218 See part III, “Avoiding International Conflicts,” supra.

219 16 U.S. at 634.

220 Id.

221 Id.

222 See note 72 supra and corresponding text.

223 The Court took this position in the succeeding piracy cases. See notes 73–82 supra and corresponding text.

224 Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 188 (1993)Google Scholar.

225 Henkin, Louis Foreign Affairs and the United States Constitution 83–128 (2d ed. 1996)CrossRefGoogle Scholar.

226 Id 135–36.

227 See Sale, 509 U.S. at 207 (Blackmun, J., dissenting) (“What the majority seems to be getting a t . . . is that in some areas, the President, and not Congress, has sole constitutional authority. Immigration is decidedly not one of those areas.”).

228 See Raustiala, supra note 29, at 193–97, 204–07.

229 Eskridge & Frickey, supra note 28, at 66; Sunstein, supra note 19, at 462; Tyler, supra note 20, at 1419.

230 See Tyler, supra note 20, at 1420 (the inconsistent application of canons “is not a reason to . . . abandon use of the canons. It is instead a basis to call for more consistent application of those canons that bring normative good to the table and for engaging in a healthy debate over which ones fall into this category.”).

231 Eskridge & Frickey, supra note 28, at 49; Vermeule, supra note 61, at 140.

232 E.g., Born, supra note 85, at 98–99.

233 Kramer, supra note 162, at 75 5 (adding that “these problems are exacerbated by the incommensurable nature of the factors being balanced . . . . When all is said and done, multifactored balancing invariably degenerates into the worst kind of decision making by intuition; rather than being guided by the test, judges manipulate the considerations to justify a result reached on other, unarticulated (and often poorly understood) grounds.”) (footnote omitted); see also IBA REPORT, supra note 32, at 170 (“As with all balancing tests, the reasonableness test has the advantage of flexibility, but risks indeterminacy, inconsistency and an appearance of subjectivity.”); Bradley, supra note 85, at 556 (“[P]otential litigants are given little advance notice about whether their conduct is subject to regulation. The unpredictability and lack of notice are likely both to distort business decisions and lead to substantial litigation.”).

234 See text at notes 145–62 supra.

235 See Ryngaert, supra note 30,at 66 (“International jurisdictional rules. . .are not well–defined and [are] thus extremely malleable for domestic purposes.”).

236 Notably, this process of clarification is one that the United States may influence, both through the negotiation of treaties and through the accretion of practice relevant to customary international law. One advantage of the proposal is that it would facilitate the contribution of courts to that process, by increasing the number of considered judicial opinions on the international norms of legislative jurisdiction.

237 Lower courts have divided over other issues as well, including whether to follow the Aramco clear statement rule or to take into account other indicia of legislative intent in deciding whether to overcome the presumption against extraterritoriality. Compare Asplundh Tree Expert Co. v. NLRB, 365 F.3d 168, 173, 180 (3d Cir. 2004), and Nat’l Res. Def. Council v. U.S. Dep’t of Navy, 2002 WL 32095131, at 9 (CD. Cal. 2002) (a clear statement in the statutory text is required), with In re French, 440 F.3d 145,151 (4th Cir. 2006), and Koilias v. D & G Marine Maint., 29 F.3d 67, 73 (2d Cir. 1994) (reference to sources other than the text is permissible).

238 Compare Rasul v. Bush, 542 U.S. 466, 480 (2004) (refusing to apply presumption to U.S. base in Cuba), and Vermilya-Brown Co. v. Connell, 335 U.S. 377, 386–90 (1948) (ignoring presumption with respect to U.S. military base in Bermuda), and United States v. Flores, 289 U.S. 137, 155–56 (1933) (refusing to apply presumption to U.S. ship), with Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 173–74 (1993) (applying presumption to U.S. Coast Guard ship), and United States v. Spelar, 338 U.S. 217, 222 (1949) (applying presumption to U.S. base in Newfoundland).

239 Compare Kollias, 29 F.3d at 72 (deciding that the application of a workers’ compensation act to injury on a U.S. ship did not overcome the presumption against extraterritoriality, and rejecting the argument that the ship “was in effect a United States territory” while on the high seas), and Cruz v. Chesapeake Shipping, Inc., 932 F.2d 218, 219, 227 (3d Cir. 1991) (Rosenn, J., announcing judgment of the court) (refusing to apply labor law to foreign nationals on U.S.-flagged ships, and rejecting argument that such ships are “floating piece[s] of American territory”), with Nat–l Labor Relations Bd. v. Dredge Operators, Inc., 19 F.3d 206, 212 (5th Cir. 1994) (deciding that the presumption against extraterritoriality did not apply to the application of labor law to a U.S. ship because “a United States flag vessel is considered American territory”), and Cruz, 932 F.2d at 235 n. 1 (Alito, J., dissenting) (rejecting the application of the presumption against extraterritoriality on the ground that “the United States has sovereignty over American-flag vessels”).

240 Envtl. Def. Fund v. Massey, 986 F.2d 528 (D.C. Cir. 1993).

241 Id. at 533 (quoting Aramco, 499 U.S. 244, 248 (1991)).

242 E.g., Smith v. Raytheon Co., 297 F.Supp.2d 399, 403 (D. Mass. 2004) (the Fair Labor Standards Act does not overcome presumption against extraterritoriality and apply to U.S. station in Antarctica); NEPA Coalition of Japan v. Aspin, 837 F.Supp. 466 (D.D.C. 1993) (NEPA does not overcome the presumption and apply to U.S. military base in Japan).

243 E.g., Nat’l Res. Def. Council v. U.S. Dep’t of Navy, 2002 WL 32095131, at 9–12 (CD. Cal. 2002) (NEPA applies to naval program in U.S. exclusive economic zone); Ctr. for Biological Diversity v. Nat’l Sci. Found., 2002 WL 31548073, at 3–4 (N.D. Cal. 2002) (NEPA applies to NSF program in Mexican exclusive economic zone). But see Basel Action Network v. Mar. Admin., 370 F.2d 57, 70–72 (D.D.C. 2005) (NEPA does not apply to towing decommissioned naval vessels outside U.S. territorial waters).

244 United States v. Corey, 232 F.3d 1166, 1171 (9th Cir. 2000)Google Scholar.

245 See Raustiala, supra note 29, at 138–40.

246 Agreement Under Article VI of the Treaty of Mutual Cooperation and Security Regarding Facilities and Areas and the Status of United States Armed Forces in Japan, U.S.–Japan, Art. XVII, Jan. 19, I960, 11 UST 1652, 373 UNTS 248.

247 Agreement for the Lease of Lands for Coaling and Naval Stations, U.S.–Cuba, Art. III, Feb. 23, 1903, TS No. 418, 6 Bevans 1113. A later treaty provides that the lease will remain in effect so long as the United States does not abandon its naval station there. Treaty of Relations, U.S.–Cuba, Art. III, May 29, 1934, 48 Stat. 1682, TS No. 866; see Rasul v. Bush, 542 U.S. 466, 471 (2004)Google Scholar.

248 Rasul, 542 U.S. at 480.

249 See note 52 supra.

250 E.g., Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993)Google Scholar (antitrust); Steele v. Bulova Watch Co., 344 U.S. 280 (1952)Google Scholar (patent).

251 See Kramer, supra note 162, at 751–54.

252 Administrative agencies have also entered the fray. The National Labor Relations Board, for example, has applied the National Labor Relations Act to extraterritorial activities with domestic effects, despite a refusal by the Third Circuit to accept its position. Compare Cal. Gas Transp., 347 N.L.R.B. No. 118 (2006), with Asplundh Tree Expert Co. v. NLRB, 365 F.3d 168 (3d Cir. 2004).

253 See United States v. Philip Morris USA Inc., 566 F.3d 1095, 1130 (D.C. Cir. 2009); Envtl. Def. Fund v. Massey, 986 F.2d 528, 531 (D.C. Cir. 1993).

254 Kollias v. D & G Marine Maint., 29 F.3d 67, 71 (2d Cir. 1994)Google Scholar.

255 The D.C. Circuit has refused to follow Massey s logic where it would lead to extending Title VII to an instance of extraterritorial employment discrimination even if it had domestic economic consequences, because doing so might run afoul of the Supreme Court’s specific holding in Aramco. Shekoyan v. Sibley Int’l, 409 F.3d 414, 420 n.3 (D.C. Cir. 2005). Despite Kollias, the Second Circuit has made no effort to apply a strict presumption against extraterritoriality to the antifraud provisions of the Securities Exchange Act or the Commodities Exchange Act, even though those laws are silent as to their extraterritorial application. Instead, it has long applied prohibitions against securities fraud to foreign transactions if the prohibited conduct occurred in the United States or if it caused substantial effects in the United States. Psimenos v. E.F. Hutton & Co., 722 F.2d 1041, 1045 (2d Cir. 1983)Google Scholar; S.E.C. v. Berger, 322 F.3d 187, 192–93 (2d Cir. 2003). Other circuit courts have also applied U.S. securities law to foreign actions with domestic effects. See Tamariv. Bache & Co., 730F.2d 1103, 1107–08 (7th Cir. 1984)Google Scholar (listing cases). But see Carnero v. Boston Scientific Corp., 433 F.3d 1, 8 (1st Cir. 2006)Google Scholar (refusing to apply a whistle–blower provision in the Sarbanes-Oxley Act extraterritorially despite the Act’s purpose to protect investors and build confidence in U.S. securities markets).

256 Compare In re Simon, 153 F.3d 991, 997 (9th Cir. 1998)Google Scholar, and Pakootas v.Teck Cominco Metals, Ltd., 2004 WL 2578982 (E.D. Wash. 2004) (relying on domestic effects to avoid presumption), aff’d on other grounds, 452 F.3d 1066 (9th Cir. 2006), with Subafilms, Ltd. v. MGM–Pathe Commc’ns Co., 24 F.3d 1088 (9th Cir. 1994) (rejecting domestic effects as basis for avoiding presumption).

257 United States v. Bowman, 260 U.S. 94, 98 (1922).

258 See note 45 supra.

259 United States v. Gatlin, 216 F.3d 207, 211 n.5 (2d Cir. 2000)Google Scholar; Kollias, 29 F.3d at 71; see also United States v. Martinelli, 62 M.J. 52, 57–58 (C.A.A.F. 2005) (agreeing with Second Circuit’s view of Bowman).

260 United States v. Plummer, 221 F.3d 1298, 1304–05 (11th Cir. 2000)Google Scholar (reviewing cases).

261 United States v. Corey, 232 F.3d 1166, 1170 (9th Cir. 2000)Google Scholar; see United States v. Delgado–Garcia, 374 F.3d 1337, 1345 (D.C. Cir. 2004)Google Scholar (stating that statutes that prohibit conspiring to encourage aliens to enter, and attempting to bring them to, the United States illegally, overcome the presumption because they are “fundamentally international, not simply domestic, in focus and effect”). Divisions have emerged within, as well as between, circuit courts. See, e.g., id. at 1353 (Rogers, J., dissenting) (arguing that the majority opinion ignores Aramco and Sale); Corey, 232 F.3d at 1187 (McKeown, J., dissenting) (arguing that the majority “extends Bowman far beyond its holding or any reasonable extension of it”); Martinelli, 62 M.J. at 68, 77 (Gierke, C.J., & Crawford, J., dissenting) (arguing that the majority’s interpretation of Bowman is too narrow).

262 As noted above, that evidence could include agency interpretations, which would support the current U.S. approach to antitrust and securities laws. Whatever the construction of those laws would have been had they first been considered under the proposed canon, the longstanding U.S. position that they apply to foreign actions with domestic effects would not need to be altered now.

263 509 U.S. 764, 819 (1993) (Scalia, J., dissenting) (in addition to the activity’s taking place “primarily” in the United Kingdom, and the foreign nationality and residence of the defendants, Great Britain had a heavy interest in regulating the activity, in Scalia’s view, while the importance of the regulation to the United States was slight).

264 Id.

265 E.g., Dodge, supra note 59, at 141–42; Weintraub, Russell J. Response to Reuland: “Hartford Fire Insurance Co., Comity and the Extraterritorial Reach of UnitedStates Antitrust Laws,” 29 Tex. Int’l L.J. 427, 428–29 (1994)Google Scholar.

266 Dodge, supra note 59, at 141; see also Kramer, supra note 162, at 755 n.31 (Justice Scalia “wanted Aramco, but thought he was prevented from getting it by precedent. So he manipulated the factors in §403(2) to reach what amounts to the same result, perhaps not self–consciously orchestrating so much as intuitively ordering open–ended factors to fit his own idiosyncratic preferences.”).

267 Stevens v. Premier Cruises, Inc., 215 F.3d 1237, 1242 (11th Cir. 2000)Google Scholar.

268 Spector v. Norwegian Cruise Line Ltd., 356 F.3d 641, 644–46 (5th Cir. 2004)Google Scholar, rev’d, 545 U.S. 119 (2005). The court also applied the presumption against extraterritoriality on the ground that the Americans with Disabilities Act would require permanent changes to the ship itself that would last beyond its stay in U.S. waters, and the Charming Betsy canon because the changes to the ship under the Act would conflict with an international treaty on safety of life at sea. Id. at 646–48.

269 Spector, 545 U.S. at 130, 149–50.

270 McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21–22 (1963)Google Scholar.

271 545 U.S. at 130–33 (Kennedy, J.), 143–45 (Ginsburg, J.), 150–54 (Scalia, J.).

272 Restatement, supra note 10, §512 reporters’ n.5; Akehurst’s Modern Introduction to International Law 175–76 (Peter Malanczuk ed., 7th ed. 1997); Brownlie, supra note 30, at 315–16; 1 Schoenbaum, Thomas J., Admiralty and Maritime Law 33–34 (3d ed. 2001)Google Scholar.

273 See text at notes 135–44 supra.

274 Mali v. Keeper of the Common Jail (Wildenhus’s Case), 120 U.S. 1 (1887)Google Scholar. See generally 6 Benedict on Admiralty §2 (2008) (describing history and scope of such treaties).

275 Similarly, courts considering the application of U.S. law to foreign ships in the U.S. territorial sea or exclusive economic zone would be guided by international law addressing jurisdiction in such areas, notably the rules set forth in Parts II, III, V, and XII of the LOS Convention, supra note 35.

276 See, e.g., Int’l Labour Org. Merchant Shipping (Minimum Standards) Convention (No. 147), Oct. 29, 1976, available at http://www.ilo.org/ilolex/.

Editor’s note: This article was completed prior to the U.S. Supreme Court’s decision of June 24, 2010, applying the presumption against extraterritoriality in Morrison v. National Australia Bank, 130 S.Ct. 2869 (2010).