This Note argues that the Baston court was incorrect both in finding the Amendment consistent with the protective principle and in its analysis of the defendant’s nexus with the United States. This Note asserts, instead, that (1) the Amendment is not valid under any traditional bases of prescriptive jurisdiction but is consistent with the United States’ international obligations to “extradite or prosecute,” and (2) the Amendment may be applied under the international anti-trafficking conventions to foreign defendants present in the United States, regardless of nexus, without violating due process.
Part I of this Note describes the complex nature of the crime of human trafficking. Part II analyzes the text and purpose of the Amendment, considers the opinion of the Baston court, and provides an overview of the international and domestic law concerns raised by the Amendment. Part III argues that the Amendment is not consistent with any recognized international law bases for prescriptive jurisdiction but illustrates how it is consistent with the United States’ obligation to “extradite or prosecute” under international anti-trafficking conventions. Under the “extradite or prosecute” principle, however, the United States does not have an unlimited license to prosecute. The United States has a simultaneous obligation to cooperate with other countries through extradition and mutual legal assistance. Part IV provides that, in addition to extradition and mutual legal assistance, a policy of international capacity building is a tool to combat impunity and provide redress to victims in cases of extraterritorial human trafficking.
This Note concludes that the obligation to “extradite or prosecute” provided an avenue by which the United States could enact the broad extraterritorial Amendment it enacted outside the traditional confines of prescriptive jurisdiction, but international cooperation remains paramount to the success of the international community in the fight against trafficking.