When the FBI Comes Calling…®
UNITED STATES JURISDICTION (continued)
Jurisdiction Under International Law (continued)
Objective Territorial Principle
Under the "objective territorial principle," (also sometimes called the "effects principle") Restatement § 402(1)(c), a state has a right to prescribe law with respect to conduct outside its territory that has or is intended to have substantial (or detrimental) effect within its territory.
Protective Principle
Under the "protective principle," Restatement § 402(3), a state has the right to punish a limited class of offenses committed outside its territory by persons who are not its nationals. Id. § 402 cmt. f. These offenses must be directed against the security of the state or other offenses threatening the integrity of governmental functions that are generally recognized as crimes by developed legal systems, such as espionage, counterfeiting, falsification of official documents, and conspiracy to violate immigration and customs laws. Id.
Nationality Principle
Under the "nationality principle," Restatement § 402(2), a nation has the right to prescribe law with respect to the activities, interests, status, or relations of its nationals outside as well as within its territory. See also Restatement § 401 (international law has long accepted that a state has jurisdiction to exercise its authority with respect to its nationals abroad). It seems that international law is beginning to recognize the right of a state to exercise jurisdiction on the basis of domicile or residence, rather than mere nationality. For example, a state may exercise jurisdiction to tax a person, natural or juridical, on the basis of nationality, domicile, or residence. Id. § 411. See also Id. § 484(1) ("[c]ourts in the United States will recognize a divorce granted in the [nation] in which both parties to the marriage had their domicile or their habitual residence at the time of divorce").
Universality Principle
The "universality principle," Restatement § 404, is perhaps one of the most controversial principles of international law. Universal jurisdiction allows a state to "define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern," such as piracy, the slave trade, attacks on or hijacking of aircraft, genocide, war crimes and "perhaps certain acts of terrorism" even when none of the section 402 bases of jurisdiction are present. Id.. It is an enormously powerful provision, and the classes of universal offenses are expanding.
However, as noted above, if a statute provides a more restrictive basis for jurisdiction than would be allowed under the universality principle, a court may not apply the universality principle. "Our duty is to enforce the Constitution, laws, and treaties of the United Sates, not to conform the law of the land to norms of customary international law." United States v. Yunis, 924 F.2d 1086, 1091 (D.C. Cir. 1991). For example, while the universality principle allows for universal jurisdiction, in theory, over any person across the globe suspected of piracy, the anti-piracy statute in the United States provides jurisdiction only over persons "brought into or found in the United States." 18 U.S.C. § 1651 (2005). Likewise, the Antihijacking Statute discussed in Yunis, provided criminal punishment of "persons who hijack aircraft operating wholly outside the 'special aircraft jurisdiction' of the United States, provided that the hijacker is later 'found in the United States.'" Yunis at 1091-92 (citing 49 U.S.C. App. § 1472(n)). With these bases of statutory jurisdiction, does the United States have to wait for the person to show up in the United States on his own, or, in the case of the piracy statute, have someone-perhaps not a federal agent-bring the suspect into the United States? In other words, is the United States hindered by its own limited statutory grant of jurisdiction, when international principles of law would condone a broader application of jurisdiction over these types of actors? Perhaps not.
As it turns out, the only reason the defendant in Yunis found himself in the United States was because he was lured onto a yacht in the Mediterranean, arrested by the FBI, and flown to Washington, D.C. Id. at 1089. While the defendant argued that the district court "should have declined to exercise … jurisdiction in light of the government's allegedly outrageous conduct in bringing him to the United States," Id. at 1092, the court held that the court's power to try a person is not impaired by the fact that he was in the court's jurisdiction by reason of a "'forcible abduction.'" Id. (quoting Frisbie v. Collins, 342 U.S. 519, 522 (1952)). In other words, the United States, especially in cases where violations of customary international law are involved, has a very broad reach, and it has become broader since the terrorist attacks of September 11, 2001.
Passive Personality Principle
Under the "passive personality principle," a state may apply its criminal law to an act committed outside its territory by a person not its national where the victim of the act was its national. Restatement § 402 cmt. g. The crimes must be rather extraordinary, such as acts of terrorism, attacks on a state's nationals because of their nationality, or assassination of a state's officials. Id.