6 Extraterritorial Application of U.S. Law
Curtis A. Bradley
- Jurisdiction of states, extra-territorial — Customary international law — Habeas corpus — US Alien Tort Statute — Jurisdiction of states, prescriptive
This chapter considers the application of federal and state law to conduct that takes place outside the territory of the United States. It begins by discussing the territorial scope of U.S. constitutional rights. The chapter then discusses the “presumption against extraterritoriality” that the Supreme Court applies when interpreting federal statutes. For situations in which the presumption is overcome or is inapplicable, the chapter explains how customary international law principles relating to prescriptive jurisdiction can be relevant in U.S. litigation through application of the Charming Betsy canon of construction. In addition, the chapter discusses the role of “universal jurisdiction” in U.S. litigation and criminal prosecution. Possible constitutional limitations on the extraterritorial application of both federal statutes and state laws, based on due process and other considerations, are also considered.