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Monday, September 17, 2007

Extraterritoriality and International Law...

Some interesting news. Today the EU’s second-highest court dismissed a Microsoft appeal that sought to overturn fines levied against Microsoft for its alleged anticompetitive conduct. The EU decision is commonly cited as an example of the EU applying its antitrust laws to regulate conduct occurring beyond its borders (or, at least, not providing sufficient deference to U.S. antitrust law/decisions). (Link) Other similar high-profile lawsuits that have an extraterritorial component have recently been in the news. In late August, for example, there was a flurry of news articles over a lawsuit filed against Yahoo in federal court in San Francisco for conduct occurring in China. That lawsuit arose after Yahoo revealed the identity of Chinese dissidents to the Chinese government (the dissidents were allegedly then jailed and tortured). (Link) Some commentators have noted an apparent inconsistency with the position that Yahoo has taken in the Chinese dissident case, and the position it took in an earlier extraterritorial lawsuit, when it was sued in French courts for selling Nazi memorabilia on its U.S. auction site. (Link).

I’d like to focus on the broader implications of these kinds of cases, without commenting on the merits or substance of these lawsuits. To my mind these lawsuits, which seek to regulate conduct that occurred abroad, may reflect larger trends occurring in international law and relations. I see a connection between the growth of countries using domestic laws extraterritorially and the decline of countries using international law to address global challenges. I’d be interested in what people think.

In the last ten to fifteen years, the U.S. has disengaged from traditional international lawmaking. Although the U.S. uses international law regularly to influence the activity of other countries, since the mid-1990s the U.S. has been reluctant to enter into new multilateral commitments and has unsigned or retreated from a number of treaties (e.g., the Kyoto Protocol, the Rome Statute/ICC, the optional protocol on the Vienna Convention re: Consular Relations, the ABM treaty, the Nuclear Nonproliferation Treaties etc). This is not to criticize the withdrawal in any one context – some unsignings or refusals to sign may have been for good reasons. Yet overall the trend is clear: the U.S. has become nervous about international lawmaking (particularly multilateralism).

But with globalization, international problems have not gone away. Replacing the void that multilateral treaties once filled seems to be an increase in the use of domestic law to solve global problems (i.e., extraterritorial laws), rather than international law. Often these lawsuits have been spearheaded by NGOs, who at one point operated at the international level. In the U.S., extraterritorial laws are controversial but have been around for years. On the private law side, think antitrust and securities laws. On the public law side, think universal jurisdiction and alien tort statute claims. The Cuban embargo is another controversial example of an extraterritorial law.

Extraterritoriality, however, is no longer just an American phenomenon. Extraterritorial laws are now commonly used in other countries. Other countries have turned to applying their commercial and public laws to conduct occurring abroad as a way to project their global influence. The EU antitrust case against Microsoft and the french lawsuit against Yahoo are good examples in the commercial law context. The criminal suits against Rumsfeld, Tenet, Yoo and others in Germany for alleged war crimes are prominent examples in the public law context. (Link)

It seems that the rise of global extraterritoriality may be tied to the U.S.'s unwillingness to solve global problems through international lawmaking. And as advocates and public interest groups seek to resolve international problems through U.S. courts, other countries are doing the same.

I’m nervous about these developments (my reasons I'll save for a different post). But I’d be interested in reactions/thoughts to the general phenomenon.

Posted by Austen Parrish on September 17, 2007 at 05:36 PM | Permalink


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Very interesting observations I think, and extraterritoriality is a growing phenomenon in both public and private law as you rightly point out. In my own research on the art and antiquities trade I have particularly found this to be the case. The US is a claimant's forum of choice, and there has been a lack of real initiative by the US to engage with multilateral agreements. The most recent cultural property treaty-making was the 2001 Unesco Underwater cultural heritage convention, which the US only participated in as an observer.

Posted by: Derek Fincham | Sep 18, 2007 5:05:56 AM

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