When the FBI Comes Calling…®
UNITED STATES JURISDICTION (continued)
Jurisdiction Under International Law (continued)
Reasonableness Under International Law
The next step in determining whether a nation can exercise jurisdiction extraterritorially is whether doing so is reasonable. See Restatement § 403. If exercising jurisdiction extraterritorially would be unreasonable, a state may not do it. Id. § 403(1). The following is a non-exhaustive list of factors which are to considered when evaluating whether a state may exercise its jurisdiction extraterritorially:
- the link of the activity to the territory of the regulating state, i.e., the extent to which the activity takes place within the territory, or has substantial, direct, and foreseeable effect upon or in the territory. Id. §403(2)(a);
- the connections, such as nationality, residence, or economic activity, between the regulating state and the person principally responsible for the activity to be regulated, or between that state and those whom the regulation is designed to protect. Id. §403(2)(b);
- the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to which other states regulate such activities, and the degree to which the desirability of such regulation is generally accepted. Id. §403(2)(c);
- the existence of justified expectations that might be protected or hurt by the regulation. Id. §403(2)(d);
- the importance of the regulation to the international political, legal, or economic system. Id. §403(2)(e)
- the extent to which the regulation is consistent with the traditions of the international system. Id. §403(2)(f);
- the extent to which another state may have an interest in regulating the activity. Id. §403(2)(g); and
- the likelihood of conflict with regulation by another state. Id. §403(2)(h).
Furthermore, if it is reasonable for each of two nations to exercise jurisdiction over a person or activity, but the prescriptions by the two nations are in conflict, each nation has an obligation to evaluate its own as well as the other nation's interest in exercising jurisdiction. Id. § 403(3). A state with a lesser interest should defer to the state with the greater interest. Id.