Digest of United States Practice in International Law

§ 16. Offenses in Antarctica by United States nationals and certain foreign nationals

(a) Any act or omission which would be punishable as a criminal offense if committed within the special maritime and territorial jurisdiction of the United States shall be equally punishable if committed in Antarctica(1) by a United States national;

(2) by a foreign national who is a member of a United States expedition;

(3) by a foreign national with respect to

(A) the person or property of a United States national,

(B) the person or property of a foreign national who is a member of a United States expedition, or

(b) This section does not apply with respect to

(1) any foreign national who is exempt from United States jurisdiction under article VIII (1) of the Antarctic Treaty; or

(2) any act or omission under this section by a foreign national over whom jurisdiction is asserted by his state of nationality before the commencement of any trial in a court of the United States concerning such act or omission or before any acceptance by such court of a plea of guilty or of nolo contendere concerning such act or omission.

(1) the term "Antarctic Treaty" means the Antarctic Treaty, entered into force on June 23, 1961 (12 U.S.T. 794);

(2) the term "Antarctica" means the area south of sixty degrees south latitude, excluding any part of the high seas, but including all ice shelves; (3) the term "national of the United States" means a person who is a citizen or national of the United States within the meaning of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.);

(4) the term "foreign national" means a person who is not a national of the United States; and

(5) the term "United States expedition" means either

(A) a scientific expedition sponsored by an agency of the United States Government, or

(B) any other expedition or trip, whether or not sponsored by the United States Government, which is organized or originates in the United States or which is conducted by individuals who are nationals of the United States or by business organizations organized and doing business in the United States.

(d) This section shall not prejudice the applicability of any other provision of law of the United States to conduct in Antarctica.

(e) The President shall promulgate regulations to carry out the provisions of this section and section 3062 of this title.

SEC. 3. Chapter 203 of title 18, United States Code, is amended by adding at the end thereof the following new section:

§ 3062. Procedure with regard to Antarctica

(a) In the implementation of the provisions of section 16 of this title and subject to such limitations as the President may prescribe, any member of a United States expedition in Antarctica, who is authorized to do so by the President, may

(1) apprehend persons for the purpose of enforcing the laws of the United States, protecting persons and property in Antarctica, or assisting foreign governments in the case of offenses committed against their laws in Antarctica; (2) restrain persons apprehended pursuant to paragraph (1); (3) search for and seize any property in Antarctica which

(A) is stolen, embezzled, or unlawfully acquired in violation of the laws of the United States;

(B) is designed or intended for use or is or has been used as the means of committing a criminal offense against the laws of the United States; or (C) constitutes evidence of a criminal offense in violation of the laws of the United States; and

(4) perform such other functions as are necessary to enforce United States laws in Antarctica.

(b) For purposes of this section, the terms "United States expedition" and "Antarctica" shall have the meanings prescribed in section 16 (c) of this title.

H.R. 6148, 95th Cong., 1st Sess., § 16, 3062.

Art. VIII (1) of the Antarctic Treaty reads as follows:

In order to facilitate the exercise of their functions under the present Treaty, and without prejudice to the respective positions of the Contracting Parties relating to jurisdiction over all other persons in Antarctica, observers designated under paragraph 1 of article VII and scientific personnel exchanged under subparagraph 1(b) of article III of the Treaty, and members of the staffs accompanying any such persons, shall be subject only to the jurisdiction of the Contracting Party of which they are nationals in respect of all acts or omissions occurring while they are in Antarctica for the purpose of exercising their functions.

In his prepared statement, Mr. Michel described the basic purposes of H.R. 763 in part as follows:

The bill provides for jurisdiction over United States citizens or nationals who commit certain kinds of offenses and who have specific links to our armed forces. The persons covered must be members of the armed forces, persons serving with the armed forces, or employed by such forces, or accompanying such forces. The offenses must have been committed while engaged in performance of official duties, or committed within armed forces installations or a military unit's area of operations in the field, or committed against another person with one of the same links to the armed forces. The offense must also be one which would be a Federal offense if it had been committed within the special maritime and territorial jurisdiction of the United States.

Statement of James H. Michel, concerning H.R. 763 before the House Judiciary Committee Subcommittee on Immigration, Citizenship and International Law on July 21, 1977.

Set forth below is a portion of the text of Mr. Michel's testimony in support of both H.R. 763 and 6148:

The territorial principle is the basis most often relied on by the United States to apply the law, but certain existing statutes rely on other bases, such as the nationality of the accused.

There appears to be no doubt that under the Constitution, Congress can legislate to proscribe offenses occurring outside the United States, as proposed in the two bills before the Subcommittee. It would be a strained argument that the Enumeration of Powers in Article I, section 8 of the Constitution somehow diminishes the power of the United States so that it has less jurisdictional capacity than do other sovereign states.

Where there is a sovereign state having jurisdiction over the territory where the offense occurs, that territorial sovereign will ordinarily have a primary interest. However, another state may have another interest in asserting a concurrent jurisdiction, so it can try offenses which are of direct interest to it, and where the territorial sovereign does not exercise jurisdiction.

Although seven countries have made territorial claims in Antarctica, the United States has not recognized such claims. At the same time, the United States has not made a claim itself, though all basic historic rights in Antarctica have been consistently reserved. There are many U.S. civilians present in that continent at any one time in connection with U.S. expeditions and tourism. In these circumstances, we believe the United States should have the ability to prosecute U.S. nationals who commit serious offenses, as well as foreign nationals who commit similar offenses against U.S. property or persons, or who are part of a U.S. expedition. The proposed legislation is in conformity with article VIII of the Antarctic Treaty regarding the status of designated observers and scientific personnel and their staffs.

With respect to offenses committed by U.S. nationals or members of the Armed Forces not subject to court-martial jurisdiction, or who are accompanying the Armed Forces abroad or employed by them, we think the United States should be able to prosecute in the case of serious offenses where no other state would exercise jurisdiction. . . . Court-martial jurisdiction over civilians in peacetime has been limited by Supreme Court decisions. The bills before the Subcommittee would fill two significant gaps in U.S. jurisdiction. They will apply to activities in which the United States has a legitimate interest, that is, the conduct of its nationals, protection of its citizens and property, and the safeguarding of its property and overseas installations.

From a foreign policy standpoint, we believe the bills would have a beneficial effect. With respect to H.R. 6148, enactment would assure other parties to the treaty of our intent to prosecute criminals under our laws of crimes which might be committed against their nationals.

In the absence of this legislation there might be no state with the ability to try the alleged offender or a U.S. national might be prosecuted by a claimant state, with resulting prejudice to the U.S. position with respect to claims in Antarctica.

With respect to H.R. 763, the bill would provide jurisdiction that would complement, yet not compete with, that of foreign countries. We think this is beneficial from a foreign policy standpoint as well, in that the bill could reduce pressure on host governments to prosecute cases where only U.S. citizens were involved, and where the host country would prefer to leave the matter to us.

mittee.

[W]e support enactment of the bills before the Subcom

Extraterritorial Criminal Jurisdiction: Hearing before the Subcommittee on Immigration, Citizenship, and International Law of the Committee on the Judiciary, House of Representatives, 95th Cong., 1st Sess., 65-66 (July 21, 1977).

Subsequent to giving his statement, Mr. Michel answered questions concerning these two bills posed by Joshua Eilberg, Chairman of the Subcommittee. Portions of this exchange follow:

Mr. Eilberg. Have there been prosecutions in foreign courts under special laws enacted by other countries subsequent to signing the Antarctica Treaty?

Mr. Michel. I am unaware of prosecutions under special laws. There are foreign countries who have broader nationality jurisdiction in their regular criminal code. And, of course, the claimant states consider their claimed sectors of Antarctica as national territory, so it's conceivable that a foreign national could have been tried by his country of nationality with respect to some act occurring in Antarctica without any need for special legislation. To date Congress has not enacted legislation extending U.S. criminal jurisdiction in Antarctica. Hence we have the bill now before you.

Mr. Eilberg. Do you know if any U.S. citizens have been prosecuted in any foreign court for any instances occurring in which the foreign government has declined to refuse to a certain jurisdiction over the U.S. citizen, where there has been apparent violation of their laws?

Mr. Michel. With respect to Antarctica, I'm unaware of any such situation. Mr. Eilberg. Would we protest the assertion of jurisdiction over a U.S. citizen by a foreign government, for example New Zealand, where such jurisdiction is predicated on a foreign claim that we do not recognize?

Mr. Michel. Since the United States does not recognize claims of territorial sovereignty in Antarctica, we would object to any exercise of jurisdiction in Antarctica based on a territorial claim. In this regard, the Antarctica Treaty, and specifically article IV of that treaty, prohibits any party from making any new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica. However, as mentioned previously, seven states had made territorial claims in Antarctica prior to signature of the Antarctic Treaty. All seven are parties to the treaty.

Mr. Eilberg. Does the application of U.S. criminal law imply in any respect that the U.S. is asserting a territorial claim?

Mr. Michel. No, Mr. Chairman, I would like to be clear on that point. The United States does not assert a territorial claim, does not recognize territorial claims asserted by others, and sees nothing in the proposed legislation that could be argued to constitute an assertion of a territorial claim.

Mr. Eilberg. In order to avoid any apparent territorial claim by enacting this legislation, it should be made clear in the legislation itself, or perhaps in the legislative history that U.S. jurisdiction is based on Congress' enumerated power or on the nationality principle.

Do you agree?

Mr. Michel. There could be technical problems in a prosecution later if a specific principle were asserted as the legislative jurisdiction base. A court might think that one of the other principles that might be relevant would be the proper one.

I should think it would be preferable to reiterate in the legislative history that the legislation is in no way intended to constitute a territorial claim. Mr. Eilberg. The Antarctic legislation . . . does not specifically define who is authorized to arrest, detain and remove the offender, and instead leaves this matter to the discretionary authority of the President.

Wouldn't it be preferable for the legislation itself to designate or authorize certain U.S. officials to perform these functions? Shouldn't specific procedures and criteria be contained in the legislation with regard to the arrest, detachment and delivery of U.S. citizens?

Mr. Michel. I think the flexibility contemplated by the legislation is a consequence of the flexibility of the situation at any one time within Antarctica. The population there fluctuates considerably from a low, I believe, of 60 . . up to several thousand at other times, and there might or might not be a person specified in the legislation available to perform these functions.

Also, over time and it has taken a long time to reach this point in the legislative process-it is possible that the composition of the persons physically present in Antarctica could change, as it has already changed from a primarily military to a primarily civilian composition.

For those reasons, there seem to be advantages, I believe, in leaving these details to regulations rather than specifying them in the legislation.

Mr. Eilberg. As a result of the problems experienced by an abuse of Americans and tried in Mexico [sic] some scholars have suggested that Congress should attempt to apply Federal criminal law to American citizens anywhere

in the world. The reason given for such an approach is that the American people would prefer to see their fellow countrymen tried at home, rather than in a foreign country which does not provide adequate due process safeguards. What type of reaction would we receive from those foreign countries if we were to assert such extraterritorial jurisdiction?

Mr. Michel. There are considerable practical difficulties with a sweeping proposal to try all U.S. nationals in the United States for offenses they might commit in foreign countries.

The basic deficiency in the line of argument, as I see it, is that the assertion of jurisdiction by the United States could not effectively deprive the territorial sovereign of jurisdiction.

We would gain only a concurrent jurisdiction, which we could exercise only when the territorial sovereign was prepared to relinquish its own jurisdiction. I don't think the problem of Americans who are in foreign jails because they have committed crimes in which the territorial sovereign has had a significant interest of its own in wanting to prosecute, would be satisfactorily solved by assertion of U.S. jurisdiction.

There is in S. 1437, the proposed revision of the criminal code, a sectionsection 204-on extraterritorial jurisdiction which would be more selective in prescribing extraterritorial jurisdiction where the victim of the offense is a U.S. official or public servant, where the nature of the offense is one in which the United States would have a governmental interest, such as treason, sabotage against the United States, counterfeiting of U.S. currency and so forth. Mr. Eilberg. What about the case where there is no victim, such as drug abuse?

Mr. Michel. That is not covered by the proposed revision unless the offense consists of the manufacture or distribution of drugs for import into the United States.

The broad assertion of jurisdiction over all U.S. nationals seems to me to have a number of practical problems, and just would not be a complete solution to the fact that foreign states will continue to have jurisdiction.

Mr. Eilberg. Yet this power is apparently clear under international law, is it not?

Mr. Michel. There could be limitations, depending on the nature of the offense. By and large, there is no serious difficulty with a state legislating criminal jurisdiction over its own nationals for offenses they commit in foreign countries.

Mr. Eilberg. Would it be reasonable for the U.S. to declare conduct in a foreign country a crime where it is an offense under U.S. law, although it is not a crime under the foreign country law where the offense was committed?

Mr. Michel. There are statutes that do that. The espionage laws have extraterritorial effect, and are crimes against the United States Government. I would think, certainly, that there are some other crimes where there may be concurrent jurisdiction even though there would be no counterpart in foreign law.

Mr. Eilberg. From that, I assume that other acts could be made crimes, other than espionage?

Mr. Michel. Yes, where the governmental interest is the distinguishing characteristic, as in the espionage laws. The main bar to exercising broader jurisdiction over U.S. citizens generally is a practical one, rather than a constitutional or national law problem.

Id.

Art. IV of the Antarctic Treaty reads as follows:

1. Nothing contained in the present Treaty shall be interpreted as:

(a) a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica;

(b) a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise;

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