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?

What duties, if any, does international human rights law establish for individuals, corporations, and other private actors? For many years, the conventional answer has been that it places duties on states to respect the rights of individuals and creates few or no private duties. In other words, human rights law is aligned vertically, not horizontally. But that view has regularly been challenged. Most recently, in 2003, the United Nations Commission on Human Rights (Commission), historically the most important incubator of human rights agreements, received two proposed instruments that might appear to realign human rights law horizontally: private actors would have duties as well as rights, and they would owe those duties to society as a whole or to individuals within it. The draft Declaration on Human Social Responsibilities (Declaration) would identify duties that all individuals owe to their societies; and the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (draft Norms) would set out duties of businesses under human rights law. The Human Rights Commission did not embrace the proposals before its replacement by the Human Rights Council in 2006, and the Council has not considered them. Both received some support, however, and it seems likely that their proponents will continue to pursue adoption of their principles in one form or another. This article argues that if adopted, those principles would cause serious damage to human rights law.

Natural Resources Defense Council v. Environmental Protection Agency. 464 F.3d 1.

United States Court of Appeals for the District of Columbia Circuit, August 29, 2006.

In Natural Resources Defense Councilv. Environmental Protection Agency, the U.S. Court of Appeals for the District of Columbia Circuit held that certain decisions of the parties acting under the international legal regime to protect the ozone layer are not “law” with which EPA must comply under the Clean Air Act. In dicta, the court suggested that holding the decisions to be “‘law’ would raise serious constitutional questions in light of the nondelegation doctrine, numerous constitutional procedural requirements for making law, and the separation of powers” (p. 9).

The purpose of the international ozone regime—in particular, the Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances That Deplete the Ozone Layer—is to protect stratospheric ozone, which intercepts harmful ultraviolet radiation from the sun. Unlike oxygen (O2), ozone (O3) is unstable: when a chlorine or bromine compound reaches the stratosphere, it sets off chemical chain reactions that destroy thousands of ozone molecules. As industrial production of such compounds has increased, stratospheric ozone has been depleted, allowing more ultraviolet radiation to reach the Earth, where it causes skin cancer and cataracts, reduces agricultural productivity, and harms the environment. The ozone regime reduces ozone-depleting substances (ODS) in the stratosphere by phasing out their production.

The dominant story of transboundary environmental impact assessment in international law has the following elements: (1) customary international law prohibits transboundary pollution; (2) according to the classic version of this prohibition, contained in Principle 21 of the 1972 Stockholm Declaration, states must ensure that activities within their territory or under their control do not harm the environment beyond their territory; (3) to ensure that activities within their jurisdiction will not cause transboundary harm, states must assess the potential transboundary effects of the activities; and (4) to that end, states enter into international agreements requiring them to carry out transboundary environmental impact assessment (transboundary EIA) for activities that might cause transboundary harm.