Collective Goods, Mobile Resources, and Extraterritorial Trade Controls

In 1981-82, the United States imposed a set of far-reaching extraterritorial restraints on sales of oil and gas transmission equipment and technology to the Soviet Union in an effort to prevent or delay completion of the Yamal natural gas pipeline. This touched off the most violent dispute over extraterritoriality in the history of American trade controls. Numerous law review articles, a few legal briefs, and even a judicial opinion have discussed this incident. Most of these writings deal with the extraterritoriality issue by testing the validity of the American controls against what are presented as the accepted rules of international law regarding national prescriptive jurisdiction. Some writings discuss the "reasonableness" principle set forth in section 403 of the Restatement (Revised) of Foreign Relations Law as a limit on extraterritorial controls. The predominant approach, however, is to focus on the "minimum bases of jurisdiction to prescribe law" set out in section 402 of the Restatement (Revised), as the principles of law by which the validity of the pipeline regulations should and can be judged. This article considers the extraterritoriality issue more broadly. The perspective of the article is based in part on modern international relations theory. Using this approach, the article identifies two general problems in international politics that are important in understanding the positions of the two sides in the extraterritoriality controversy, their emotional commitment to these positions, and even their legal arguments. The article also discusses the inadequacies of international legal doctrines currently available for dealing with these problems