The Five Bases of Extraterritorial Jurisdiction and the Failure of the Presumption against Extraterritoriality

Authors

Wade Estey

Abstract

A nation can exercise two types of jurisdiction: territorial and extraterritorial. The exercise of extraterritorial jurisdiction elicits controversy because of possible international law conflicts. The United States applies a presumption against extraterritorial application of domestic law. However, the presumption of extraterritorial application ignores the propriety of its use.

This Note revises the presumption upon reviewing various statutory and case law applications of extraterritorial jurisdiction in the United States. This Note also proposes a new paradigm for proper use of extraterritorial jurisdiction. The new paradigm posits that the presumption against extraterritorial jurisdiction can be rebutted in five situations: (1) Nationality Jurisdiction, (2) Effects Jurisdiction, (3) Universal Jurisdiction, (4) Protective Jurisdiction, and (5) Passive Personality Jurisdiction.

Recommended Citation

Wade Estey, The Five Bases of Extraterritorial Jurisdiction and the Failure of the Presumption against Extraterritoriality, 21 Hastings Int'l & Comp. L. Rev. 177 (1997).
Available at: https://repository.uclawsf.edu/hastings_international_comparative_law_review/vol21/iss1/3