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UNITED STATES JURISDICTION (continued)
Jurisdiction Under International Law (continued)
Case Law Interpreting Jurisdiction Under International Law
United States v. Yousef, 327 F.3d 56 (2d Cir. 2003).
In 1998, the defendant was convicted in part on charges relating to a conspiracy to bomb United States commercial airliners in Southeast Asia. Yousef at 78. The district court based its conviction partly by relying on the universal jurisdiction principle stating that placing a bomb on an aircraft "is at least as heinous a crime of international concern as hijacking a plane." Id. at 98 (quoting United States v. Yousef, 927 F. Supp. 673, 681 (S.D.N.Y. 1996)). The appeals court overruled the district court on this point, stating that the world has not developed a satisfactory definition of "terrorism" that would allow universal jurisdiction based on terrorism. Id. at 103-04, 106 Oddly enough, why neither court relied on the provision in Restatement § 404 that allows universal jurisdiction for "attacks on or hijacking of aircraft" is a mystery. Surely a bomb placed on a plane can be considered an attack on an aircraft. In any case, the court did not base its decision on that point, and found jurisdiction for the offense under a different rule of law.
United States v. Clark, 315 F. Supp. 2d 1127 (W.D. Wash. 2004).
The defendant in Clark was indicted with two counts of violating 18 U.S.C. § 2423(c) which criminalizes the illicit sexual conduct of United States citizens who travel in foreign commerce. Clark at 1129. He pled guilty to the charges but reserved the right to challenge the legality of the statute, which he did, claiming that its extraterritorial application is unreasonable and unconstitutional. Id. The court found that there was extraterritorial jurisdiction based on the nationality principle, since the defendant was a United States citizen, and under the universality principle since the sexual abuse of children is universally condemned. Id. at 1131 & n.3. Furthermore, the extraterritorial application of the statute is reasonable even though "there is only a minimal link between the activity sought to be regulated by this statute and the territory of the United Sates." Id. at 1132. The court noted that there is a strong connection between the United States and its citizens who commit the illicit activity, that the prohibition against sexual activity with young children is considered desirable and is widely accepted, and that there is very little likelihood of conflict with regulation by other states. Id.
However, his case has recently been heard on appeal, and the holding is quite interesting.
United States v. Clark, __ F.3d __, (9th Cir. 2006) (No. 04-30249) [hereinafter Clark II]
On appeal, Mr. Clark argued that extraterritorial application of section 2423(c) violated principles of international law. Clark II at 10. However, the Court held that "extraterritorial application is proper based on the nationality principle." Id. The Court declined to address whether the universality principle applies "because extraterritorial application of a criminal law need be justified by only one of the five principles of extraterritorial auhtority." Id. at 11 n.10. Thus, it is unclear to what extent the United States will recognize universal jurisdiction.
United States v. MacAllister, 160 F.3d 1304 (11th Cir. 1998).
In MacAllister, the defendant, a resident of Quebec, was a member of a conspiracy to export cocaine from the United States to Montreal. MacAllister at 1305. He was charged with conspiracy to export cocaine in violation of 21 U.S.C. § 963, and pursuant to a treaty request he was extradited from Canada to the United States. Id. at 1306. On appeal, he challenged the jurisdiction of the United States district court based on whether section 963 can be applied extraterritorially. The 11th circuit found that the statute could be applied extraterritorially based on the objective territorial principle. Id. 1308 & n.10. "The objective territorial principle applies where the defendant's actions either produced some effect in the United States, or where he was part of a conspiracy in which any conspirator's overt acts were committed within the United States' territory." Id.. Since the defendant was a member of a conspiracy whose acts were committed in furtherance of a conspiracy within the boundaries of the United States, and the conduct (the drug trade) has a detrimental effect on the United States, the objective territorial principle applies. Id.