미국법상 ʻ역외적용 부인 추정ʼ의 새로운 전개 - 국제법과의 단절 현상의 심화와 함의 -

Abstract

This article analyzes the disconnection between the presumption against extraterritoriality, an American canon of statutory interpretation limiting the extraterritorial reach of federal statutes, and international law. The presumption against extraterritoriality was originally introduced in the 19th century to observe the jurisdictional rules under international law, and reflecting the contemporary international legal rules adopted a strict territoriality principle. However, while international law began to mitigate the strict territoriality principle, the U.S. Supreme Court continued to adhere to a presumption against extraterritoriality based on strict territoriality, causing, and then deepening, a disconnection between the presumption and international law. In its 2010 Morrison decision, the Supreme Court created an opportunity to mitigate this disconnection by introducing a more flexible application standard which expanded the scope of recognizing the domestic application of statutes. However, subsequently, the Court hinted at narrowing this scope, and in 2023, in Abitron, explicitly narrowed the scope substantially, thus returning to the presumption of the past which is based on a strict territoriality principle. This resumed the disconnection between the presumption and international law. The disconnection between the presumption and international law is problematic because it can weaken the normative power of the presumption by pressuring the Court to create new exceptions to the presumption, and the creation of such new exceptions undermines the predictability of the application of the presumption. Furthermore, the disconnection can produce unnecessary normative voids both in the domestic and international context. Two plausible solutions are ① replacing the presumption with a new extraterritoriality rule that more actively incorporates the jurisdictional rules of international law, and ② restoring the flexible application standard of Morrison. The former approaches the problem of extraterritoriality by applying the rules of international law to individual cases, while the latter does so by leaving the presumption itself as is but simultaneously expanding the scope of recognizing the domestic application of statutes. However, it must be noted that these solutions themselves may cause problems because ① frequent changes in canons of interpretation may harm legal stability and ② the process of granting more discretion to the Courts may potentially infringe on the separation of powers. These potential problems must be carefully considered in advance.