PROPOSAL 24
GregoryW.Bowman
MississippiCollegeSchool of Law
Winning the Battle but Losing the War? Reflections on Extraterritorial Jurisdiction in
U.S. Export Control Laws
For the past quarter century, the United States has asserted extraterritorial prescriptive jurisdiction over U.S. origin goods and technologies that were already located abroad. Moreover, this jurisdictional claim under U.S. export control laws is based on the origin of the goods and technologies themselves, and not on the nationality of the parties involved. This unprecedented claim of item-based (as opposed to person-based) jurisdiction is one of international law’s more intractable jurisdictional issues in recent years. While the genesis of this jurisdictional claim—U.S. efforts to thwart construction of a trans-Siberian pipeline in the early 1980s—is long gone, to this day the United States continues to assert item-based extraterritorial jurisdiction under its export control laws.
The validity of this U.S. claim was debated at length by scholars in the 1980s and early 1990s, but there has been less focus on the subject in recent years, perhaps due to the lack of another galvanizing, headline-grabbing event such as the trans-Siberian pipeline controversy. Yet the subject of item-based exterritorial jurisdiction is worth revisiting now for two reasons. First, there has been a dramatic upsurge in global trade in the past fifteen years, and increasingly both production and research and development activities are trans-border in nature. This means there are more foreign activities in which U.S.-origin goods and technologies are being used—and this in turn means there are more foreign activities over which the United States claims item-based extraterritorial jurisdiction. Second, the current national security and foreign policy landscape is vastly different from that of the Cold War and the pre-9/11 era. Could such changes substantially affect our analysis of item-based extraterritorial jurisdiction and its validity?
This article presents a two-part thesis. First, it argues that item-based extraterritorial jurisdiction in fact can be justified under existing international law doctrine, and that these justifications are consistent with the national security goals of both the United States and its major trading partners. Second, however, an exploration of these justifications reveals that “justifiable” does not mean ideal, or perhaps even close to it—and that the very national security goals pursued by the United States through item-based extraterritorial jurisdiction could be better served by a departure from the item-based model. Stated differently, item-based extraterritorial export controls are legally adequate but strategically imperfect.
In exploring the first part of this thesis, the article will analyze earlier scholarship on extraterritorial export jurisdiction and discuss how changes to the modern global landscape may lead to different legal conclusions today. For example, some previous commentators concluded that item-based extraterritorial jurisdiction could not be justified under the protective principle, and certainly not under the universal jurisdiction principle. However, with the emergence of decentralized terrorism in recent years, might the protective principle be sufficient justification for extraterritorial jurisdiction? Given the general global consensus against terrorism and proliferation of weapons of mass destruction, might universal jurisdiction even be justified, assuming of course that definitions of such activities can be agreed upon? Other previous avenues of inquiry, such as analyzing extraterritorial jurisdiction using principles of comity, functional association, or reasonable connections, will also be revisited and discussed.
In addition, more recent scholarship on voluntary inter-governmental cooperation will be explored as a means to justify item-based extraterritorial jurisdiction. Specifically, the article will explore how transnational mutual recognition regimes and other nonbinding efforts by governments to coordinate their national laws and policies may play into—and perhaps help justify—item-based extraterritorial export controls.
In discussing the second part of the above thesis—that “justifiable” does not mean ideal—the article will explore how U.S. export controls might be reformulated. Reconsideration of the primary national security purposes of these controls suggests that these purposes could be better served by a departure from the item-based model. Such a change would have the dual benefit of making any extraterritoriality in the revamped controls both more easily justifiable and less objectionable to major U.S. trading partners. It also might lead to greater multilateral cooperation in the area of export controls—which in turn could lead to greater consensus, and thus even stronger legal justifications for these controls under international law. The article will close with some observations about how such changes might be achieved, either with or without changes to the underlying statutory structure of U.S. export controls.