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UNITED STATES JURISDICTION (continued)
Jurisdiction Under International Law
Further complicating the determination of whether federal statutes have extraterritorial effect is the notion of a sovereign's abilities under international law. When a court analyzes a statute for its extraterritorial effect, there is a presumption that Congress did not intend to violate principles of international law, and therefore, unless there is an explicit Congressional directive to the contrary, courts will not give a statute extraterritorial effect if it would violate those principles of international law. United States v. Clark, 315 F. Supp. 2d 1127, 1131 (W.D. Wash. 2004) (citing McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21-22 (1963); United States v. Vasquez-Velasco, 15 F.3d 833, 839 (9th Cir. 1994)). However, a court will not apply international principles of law if the statute that is being interpreted provides less jurisdictional basis than would otherwise be permissible under principles of international law. See discussion of the "universality principle," below.
What, then, are these principles of international law? Courts often look to the Restatement (Third) of Foreign Relations Law of the United States (1987) for guidance. While restatements are non-binding, many courts view them as authoritative and will cite to them when appropriate. There are several principles of international law under which exercising extraterritorial jurisdiction may be appropriate. Among them are: the objective territorial principle; the protective principle; the nationality principle; the universality principle; and the passive personality principle. Clark at 1127 (citing RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 402 (1987) (hereinafter, Restatement)).