Ellen S. Podgor

Extraterritorial Criminal Jurisdiction: Replacing 'Objective Territoriality' with 'Defensive Territoriality'

This article begins by exploring the development of extraterritoriality in the United States. It notes the expansion of extraterritorial provisions within federal criminal legislation and how these provisions permit prosecutors to proceed with criminal actions for conduct occurring outside this country. It also reflects on the use of an “objective territorial principle” by the judiciary, that permits criminal prosecutions whenever the conduct of the actor has a substantial effect in the United States. As an alternative to using “objective territoriality,” this article advocates for using a “defensive territoriality” approach. This article stresses the benefits of using a “defensive territoriality” approach to decide whether to prosecute an extraterritorial crime.