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Pam 27-161-1

the American commissioner in his dissenting opinion, and (a) the conduct and its effect are generally recognized as consti-
by the American agent in his suggestion of protest, [it did] tuent elements of a crime or tort under the law of states that have
reasonably developed legal systems, or
not accept this award as valid or binding." 47 The United
(b) (i) the conduct and its effect are constituent elements of ac-
States suggested the negotiation of a new boundary con- tivity to which the rule applies; (i) the effect within the territory is
vention to settle the matter, but Mexico declined on the substantial; (iii) it occurs as a direct and foreseeable result of the con-
ground that the matter had been fully adjudicated and that duct outside the temtory; and (iv) the rule is not inconsistent with
there remained only the admittedly difficult task of the principles of justice generally remgnized by states that have
reasonably developed legal systems.
relocating the line of 1864. Discussion of the matter was
terminated because of disturbed conditions in Mexico, b. The subjective territorial principle, embodied in Q 17
and no further action was taken until the conclusion in of Restatement, Second, has generated very little con-
1963 of a treaty by which the disputed territory was troversy. The objective territorial concept of Q 18,
divided between the two countries. 48 The agreement en- however, has consistently been criticized as an invalid ex-
tered into force on January 14, 1964.49 tension of the territorial base of jurisdiction. Nearly all
4-5. Scope of Territorial Jurisdiction. a. As was noted European publicists have been critical of the Restate-
earlier in this chapter, jurisdiction is dependent upon the ment's notion of extraterritorial application of a state's
capacity to both prescribe and enforce rules of law. 50 It is laws to its citizens. The European Advisory Committee
essential to keep this fact in mind when examining the on the Restatement criticized the Restatement rule of ex-
scope of territorial jurisdiction. With the increasing facility traterritorial jurisdiction in the following manner:
of communication and transportation, the opportunity for In our view, the exercise of jurisdiction based on territory is not
committing crimes, the constituent elements of which oc- justified in cases where all that has occurred within the territory is the
cur in more than one state, have grown apace. Ac- effects of certain conduct and not at least part of the conduct itself. 52
cordingly, the jurisdiction of crime founded upon the ter- c. As noted, the objective territorial principle is often
ritorial principle has been expanded in several ways. First, said to apply where the offense "takes effect" or "pro-
national legislation and jurisprudence have developed the duces its effects" in the territory. In relations to elemen-
subjective territorial principle, which establishes the juris- tary cases of direct physical injury, such as homicide, this
diction of the state to prosecute and punish for crime com- is only natural, for here the "effect" is an essential ingre-
menced within the state but completed or consummated dient of the crime. Once out of the sphere of direct physi-
abroad. Secondly, there has, over the years, evolved the cal consequences, however, the "effects" formula is most
so-called objective territorial principle, which establishes difficult to apply. Here, the effects within the territory may
the jurisdiction of the state to prosecute and punish for be fairly remote. Thus, the extension of the notion of
crime commenced outside of the state but consummated effects, without qualification, from the simple cases of
within its territory. 51 These concepts are reflected in the direct physical injury to cases such as defamation and sedi-
following provisions of the Restatement. tion, introduces a certain degree of ambiguity into the
basis of the doctrine.
RESTATEMENT, SECOND, FOREIGN RELATIONS LAW
OF THE UNITED STATES (1965)
d. Most of the major problems regarding the scope of
517. Jurisdiction to Prescribe with Respect to Conduct, Thing, territorial jurisdiction and conflicts between the territorial
Status, or Other Interest within Territory jurisdiction of several states have occurred in commercial
A state has jurisdiction to prescribe a rule of law and antitrust matters, i.e., basically concerns of private in-
(a) attaching legal consequences to conduct that occurs within its ternational law. 53 The reader should also be alert to the
territory, whether or not such consequences are determined by the fact that though a state may prescribe rules against conduct
effects of the conduct outside the temtory, and
(b) relating to a thing located, or a status or other interest which occurs outside of its territory, it is, due to the
localized, in its territory. widespread opposition to the objective territorial concept,
518. Jurisdiction to Prescribe with Rapt to Effect within Territory most mcult to enforce these norms on the basis of ter-
A state has jurisdiction to prescribe a rule of law attaching legal conse- ritorial jurisdiction. Effective enforcement thus depends
quences to conduct that occurs outside its territory and causes an generally on whether the state actually has custody of the
effect within its territory, if either
individual or property in question.
' 47. Id. 4-6. Extradition. a. Basic Principles. Extradition is the
48. 15 U.S.T. 21, T.I.A.S. 5515, 505 U.N.T.S. 185. surrender of an individual accused or convicted of a crime
49. See generally, 3 M. Whiteman, Digest of International Law by the state within whose territory he is found to the state
680-99 (1973) (hereinafter cited as 3 M. Whiteman). (1964). For a dis- under whose laws he is alleged to have committed or to
cussion of the controversy from a Mexican point of view, see Antonio
Gomez Robledo, Mexico y el Arbitrqje Inter~cio~I, 161-293 (1965). 52. Riedweg, The Exrra-Territorial Application of Restrictive Trade
On international boundaries, see generally 3 M. Whiteman, supra. at Legislatio~urisdiction and International Law, INTERNATI
oNAL
Report of the FYw-First Cogerence, 357, 372-73,
1-871. LAW A~~OC~ATION,
50. See Page 4-1, supra. (1 964).
51. See, Harvard Research in International Law, Jurisdiction with 53. SeeU.S. v. Aluminum Co. of America, 148 F.2d 416 (1945),
Respect to Crime, 29 Am. J. Int'l L. Supp. 435, 484, 487-88 (1935) and the cases cites therein. See also, Pacific Seafarers, Inc. v. Pacific Far
(hereinafter cited as Harvard Research, Criminal Jurisdiction). East Lie, Inc., 404 F.2d 804 (1968), cert. denied, 89 S.Ct. 872 (1969).