convergence and divergence. Studying the causes and consequences of extraterritorial
regulation by powerful states can help to illuminate the conditions under which the public
and private targets of extraterritoriality adjust to, or resist, external pressures for
harmonization (Drezner 2001; Garbo 2002). Insights into this realm are important both
for explaining patterns of compliance with international rules and norms in the context of
globalization, as well as for understanding the formation of state preferences for specific
rules and institutions (Simmons 1998; 2001).
The argument proceeds as follows. First, I elaborate the research question in the
context of IR theory and outline a proposed explanatory account that is both more robust
and more parsimonious than standard legal-doctrinal accounts. Next, I summarize the
results of statistical tests of this account based upon data compiled by the author from
roughly 450 U.S. federal court decisions between 1945 and 2003. The third section
discusses the potential for applying the explanatory account outside the U.S. context, and
surveys the secondary literature on the extraterritorial regulatory behavior of other states
and the European Union. I conclude by exploring the implications of these findings for
trends toward international rule convergence and the changing nature of the institution of
state sovereignty.
T
OWARD
A
T
HEORY
OF
E
XTRATERRITORIAL
R
EGULATION
Domestic courts are almost wholly absent from IR accounts of international rule
convergence and regime formation. Scholarship in this field traditionally focuses on
peak-level, government-to-government efforts to induce, or coerce, states into adopting
particular regulatory policies.
Nevertheless, in liberal democracies, extraterritorial
regulation (like regulation in general) is carried out by, or within the ‘shadow’ of,
domestic courts. Public regulation requires the participation of a state agent, and an
official act with consequences directed beyond a state’s territorial boundaries is, by
definition, an international act. It follows that extraterritorial regulation by means of a
domestic court is an international act.
Regulatory extraterritoriality differs from peak-level applications of regulatory
pressure against foreign governments on at least three dimensions. The first involves
3
Among the multilateral and unilateral options available to states attempting to use peak-level mechanisms
to manage private, transboundary conduct are political and economic sanctions, aid manipulation, and, in
extreme situations, even the use (or threat) of force.
3
Convention