From here to extraterritoriality: American sovereignty within and beyond borders

American extraterritorial claims—claims of jurisdiction over persons or activities outside the territory of the state—have changed dramatically over time. Beginning in the late eighteenth century, the United States claimed legal jurisdiction over American citizens in fifteen countries by establishing consular courts run by diplomatic officials. During the same period, the “act of state doctrine” prohibited domestic American courts from claiming extraterritorial jurisdiction. By the middle of the twentieth century, the United States had abandoned the last of its consular courts and the act of state doctrine. The “effects doctrine” now allows American courts to claim extraterritorial jurisdiction over foreign activities that have domestic effects. In recent years, the United States has begun to make other types of extraterritorial claims. Foreign governments can be sued for the expropriation of American property. Foreign nationals can be sued for human rights violations and other crimes abroad. It is against the law for an American citizen to bribe a foreign official, even outside the territory of the United States.; This dissertation argues that American extraterritorial practices have changed because American conceptions of sovereignty have changed. In the nineteenth century, the United States embraced prevailing conceptions of sovereignty, which held that “uncivilized” states were not full subjects of international law. Extraterritorial claims against them were therefore compatible with, and encouraged by, these conceptions of sovereignty. The United States usually abandoned its consular courts when they became illegitimate—at first because some states became “civilized,” and later because the principle of self-determination promoted the concept of sovereign equality. The act of state doctrine was rooted in the then-dominant legal positivist philosophy, which upheld a conception of sovereignty based on strict territorial exclusivity. In contrast, the effects doctrine is rooted in contemporary legal realist thought, which is more pragmatic and flexible about sovereignty and territorial jurisdiction. More recent American extraterritorial claims, which go well beyond the effects doctrine, are still connected to it, because the doctrine promotes a conception of sovereignty compatible with extraterritorial claims.