Unlike inbound trade regulation, which is characterized by deep multilateralism, the regulation of export trade is characterized by significant unilateralism. Nowhere is this more apparent than with the United States’ assertions of prescriptive extraterritorial jurisdiction under its export control laws. Since 1982, the United States has claimed the power to regulate the use and reexport of U.S. origin goods, software, and technologies located abroad, based primarily on the fact that these items are of U.S. origin (or are foreign-origin items with some U.S. content). These “item origin-based” jurisdictional claims, which first were made as part of a trade dispute with European countries over a proposed natural gas pipeline from the Soviet Union, resulted in a flurry of academic commentary in the 1980s, with most commentators condemning this U.S. assertion of extraterritorial jurisdiction. In the years since, attention to the issue has waned, but the United States’ assertion of item origin-based export control jurisdiction remains in place and unresolved as a matter of international law.
This Article asserts that the United States’ longstanding claim of extraterritorial export control jurisdiction is an underappreciated but vitally important issue that needs to be readdressed. International trade has grown exponentially since 1982, and the result is that the United States’ asserted jurisdictional reach has grown vastly broader. This Article explains the nature and mechanics of the United States’ item origin-based jurisdictional claim, provides a summary of the 1982 Soviet gas pipeline trade dispute, reconsiders the justifiability of the United States’ jurisdictional claim under the prescriptive jurisdictional principles of international law, and finds the current approach legally awkward and strategically insufficient. It then considers the issue through the lens of more recent scholarship on transnational networks, mutual recognition arrangements, and unilateral trade actions, and concludes by recommending a multilateral approach that offers greater promise of both policy effectiveness and legality under international law.
Gregory w. Bowman,
A Prescription for Curing U.S. Export Controls,
97 Marq. L. Rev. 599
Available at: https://scholarship.law.marquette.edu/mulr/vol97/iss3/4