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Constitutional Limitations

Generally there is no constitutional bar to the extraterritorial application of domestic penal laws. Prosecutors, if challenged, must be able to show that congressional intent of extraterritorial scope is clear and that the application of the statute to the acts in question does not violate the due process clause of the Fifth Amendment.

Jurisdiction is the power of the state to prescribe and punish crimes, the power of the executive to apply and enforce laws, and the power of courts to adjudicate cases. Since a state's criminal law has no force and effect beyond its territorial limits, except for universal crimes, a criminal offense committed in one state cannot be prosecuted in another. The threshold issue of whether a court has jurisdiction to resolve a pending controversy is fundamental. A court cannot act outside its authority or jurisdiction. Each court has jurisdiction to determine whether it has jurisdiction. If a court determines it has no jurisdiction to decide the merits of a case, the appropriate action is to dismiss.

The five traditional bases of jurisdiction over extraterritorial crimes are: territorial, nationality, protective, passive personality, and universal. Under the "territorial theory," jurisdiction applies to conduct or the effect of which occurs within the territorial boundaries of the state. When an element of an offense occurs within a state, that state has jurisdiction based on subjective territoriality. When an effect or result of criminal conduct impacts the state, but the other elements of the offense occur wholly beyond its territorial boundaries, that state has jurisdiction based on objective territoriality. The "nationality theory" bases jurisdiction on the allegiance or nationality of the perpetrator of offenses proscribed by the state of his allegiance, no matter where the offense occurs. The "protective principle" applies whenever the criminal conduct has an impact on or threatens the asserting state's sovereignty, security, or some important governmental function. The "passive personality theory" applies merely on the basis of the victims nationality. The United States and many other nations have rejected this basis of jurisdiction, although they increasingly have started to invoke it, especially with respect to terrorist crimes. The "universality theory" permits any forum to assert jurisdiction over particularly heinous or universally condemned acts (e.g., genocide and crimes against humanity), when no other state has a prior interest in asserting jurisdiction.

Additional topics

Law Library - American Law and Legal InformationCrime and Criminal LawJurisdiction - Constitutional Limitations, Extraterritorial Jurisdiction, Courts-martial Jurisdiction, Bibliography