The Eras of Extraterritoriality in the United States

• Autore: Alina Veneziano
• Carica: Ph.D. Candidate at King's College London (UK)
• Pagine: 240-267

†Alina Veneziano is a Ph.D. Candidate at King’s College London (UK). She received an LL.M., New York

University School of Law,2019 (US); a J.D., Georgetown University Law Center, 2018 (US); an M.B.A., Western

Governors University (US); and a B.S. in Accounting, WesternGovernors University (US). Alina Veneziano is a

registered attorney of the Bar of the State of New York.

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The Eras of Extraterritoriality in the United States

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ABSTRACT

This article uses the research from Kal Raustiala’s book, Does the Constitution Follow the Flag? : The

Evolution of Territoriality in American Law, and the research from several of my articles on

extraterritorial applications to explain how the United States has used the regulatory tool,

extraterritoriality,since the time of the American Founding and how such use has differed as the

United States gained power. The manner by which the United States has relied on

extraterritoriality has differed depending on a particular era of history. For instance, this article

articulates five eras that have characterized the U.S. decision-making process for

extraterritoriality: cautionary, progressive, indiscriminate, withdrawal, and arbitrary. The

United States within each era has embraced certain customary principles more than others such

as sovereignty, territorialism, international comity, and global constitutionalism. Its reliance on

these principles is volatile and changes in each era. What is remarkable is the extent to which the

United States has and has not considered international issues as a part of its practice of utilizing

extraterritoriality. As a young nation, the United States greatly clung to notions of sovereignty

and territorialism and eschewed extraterritoriality because it was not strong enough to exert

such power nor could it handle an invasion from another foreign power. Sovereignty and

territorialism gave the United States the peace of mind and security against an uprising.

International considerations were prominent and commonplace in the early eras. But as the

nation grew in strength throughout each successive era, it no longer needed the bedrock of

sovereignty and territorialism to safeguard it from other foreign powers. The United States

instead sought to inject its laws extraterritorially and engage in global policing. Its rise in

economic and political power gave it the strength to do so. Extraterritorial regulation was on the

rise. However, the more its use of extraterritoriality rose,the more domestic struggles the United

States encountered, which led to arbitrary judicial decisions and policy-making. Further, during

the later eras, the United States relied less and less on international considerations and engaged

in withdrawal tactics, causing some to view its behavior as hegemonic. There is a great

imperative of examining history with the law. How U.S. history and politics can inform the future

of the law is critical. The findings laid out within this article will serve a starting point for future

research regarding potential future eras.

KEYWORDS

Extraterritoriality; International Comity; Regulatory Tool; Citizenship; U.S. Constitution

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TABLE OF CONTENTS

Introduction ............................................ 241

1. Presentingthe Eras of Extraterritoriality inthe United States . . . . . . . . . . . . . . . . 242

1.1. Cautionary with International Focus (founding – early 1900s)........... 242

1.2. Progressive with International Focus (early 1900s– 1950s)............ 247

1.3. Indiscriminate without International Focus (1950s– 1990s)........... 251

1.4. Withdrawal without International Focus (1990s– 2010) ............. 254

1.5. Arbitrarywithout International Focus (2010 – present) . . . . . . . . . . . . . . 261

2. Significanceof the Era-Classifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265

Conclusion ............................................. 267

INTRODUCTION

The United States is not the same country it was at the time of the Founding. It has

grown substantially as a global power and leader. From asserting its independence to

domestic funding to international policing, the United States is a pioneer country. A

large part of its dominance, both internally and abroad, has been the proliferation of

federal legislation beginning in the 1930s and the use of the regulatory tool,

extraterritoriality.1Extraterritoriality involves the application and use of U.S. law to

regulate foreign conduct. The key to this tool is that some part of the regulable conduct

must take place outside the territory of the United States. As can be imaginable,

extraterritorial applications create foreign friction, harm international relations efforts,

and conjure up multiple issues with another state’s sovereignty, determination, and

territoriality. What is interesting about this article is that it tells the story of the United

States’ use of extraterritoriality in a series of stages – eras – each of which is

accompanied by certain attendant circumstances such as evolved notions of territoriality

and citizenship, differing attitudes about the international realm, and varying degrees of

coordination and uncertainty between the U.S. branches of government.

This Article proceeds in the following manner. Part II presents the eras of

extraterritoriality in the United States and describes the attendant circumstances

associated with each era. The United States has proceeded through five eras: (1)

1For Kal Raustiala’s book see K

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(2009). See also Alina Veneziano,Applying the U.S. Constitution Abroad, from the

Era of the U.S. Foundingto the Modern Age, 46 F

ORDHAM

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. L.J. 602 (2019) [hereinafter Veneziano, Applying the

U.S. Constitution Abroad]; see also Alina Veneziano,Studying the Hegemony of the Extraterritoriality of U.S. Securities

Laws : What It Means for Foreign Investors, ForeignMarkets, and Efforts at Harmonization, 17 G

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343 (2019) [hereinafter Veneziano, Studyingthe Hegemony of the Extraterritoriality of U.S. Securities Laws];

see also Alina Veneziano,A New Era in the Application of U.S. Securities Law Abroad : Valuing the Presumption Against

Extraterritorialityand Managing the Future with the Sustainable-Domestic-Integrity Standard, 23 A

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. L. 79, 111 (2019) [hereinafter Veneziano, ANew Era in the Application of U.S. Securities Law Abroad].

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