How far does U.S. law reach beyond U.S. borders? In principle, Congress could extend its laws as far as it likes, but Congress often fails to make its intentions clear. Many statutes do not specify their geographic scope, instead using general terms that have no inherent limit. Federal courts have long employed interpretive rules, or canons, to guide their construction of such statutes. The canon most commonly cited is the presumption against extraterritoriality, which states that “legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.” The simplicity of this language masks difficult questions. Does the “territorial jurisdiction of the United States” include only territory within the national boundaries, or does it extend to territory outside those boundaries but within U.S. control? How should the presumption apply to actions taken abroad that cause effects within U.S. territory, however defined? What implications does the presumption have for situations within U.S. territory but also within the jurisdiction of another country, such as foreign ships in a U.S. port? When the presumption does apply, what evidence of “contrary intent” is necessary to overcome it?

Dealing with pirates off the coast of Somalia in the Gulf of Aden and the western Indian Ocean over the past two-plus years has highlighted the international law applicable to countering piracy at sea and the role of international institutions in that effort. This essay seeks to illuminate related issues with a view to improving counterpiracy action.

Kenya became a primary destination for the prosecution of pirates captured off the coast of Somalia from late 2008 to late 2009. Yet none of the pirates being tried in Kenya as of April 2010 were captured by Kenyan armed forces but, rather, by non-Kenyan forces whose countries had signed agreements with Kenya for it to conduct such trials. In Resolution 1851 of December 16, 2008, the United Nations Security Council had urged states and regional organizations to enter into such agreements. Kenya accordingly concluded agreements on prosecuting suspected pirates with the United Kingdom, the United States, the European Union, and Denmark. According to media reports, and as Kenya recently acknowledged, two others were negotiated, with China and Canada. Only the EU-Kenya agreement has been published. The British foreign secretary told the House of Commons that Kenya did not want its agreement with the United Kingdom to be made public. Consequently, it may well be that a Kenyan preference for secrecy prevented the public release of information on the other agreements signed by Kenya.

This essay presents a systematic study of the incidence of universal jurisdiction (UJ) prosecutions for the international crime of piracy. Using data on the number of piracies committed in a twelve-year period (1998-2009) obtained from international agencies and maritime industry groups, we determined the percentage of these cases where nations exercised universal jurisdiction. Studies of the worldwide use of UJ prosecutions for other crimes simply count how often universal jurisdiction has been exercised but do not attempt to determine the rate of prosecution. Simply counting cases does not allow one to appreciate the significance of universal jurisdiction in relation to the total problem. While the expressive or symbolic value of universal justice may be satisfied by a small number of isolated prosecutions, the deterrent effect depends on its incidence relative to the number of perpetrated crimes.

ERITREA'S DAMAGES CLAIMS (ERITREA V. ETHIOPIA), FINAL AWARD. Athttp://www.pca-cpa.org.Eritrea Ethiopia Claims Commission, August 17, 2009.

ETHIOPIA'S DAMAGES CLAIMS (ETHIOPIA V. ERITREA), FINAL AWARD. Athttp://www.pca-cpa.org.Eritrea Ethiopia Claims Commission, August 17, 2009.