The Extraterritorial Application of United States Law and the Protection of Human Rights: Holding Multinational Corporations to Domestic and International Standards
![handle is hein.journals/tclj10 and id is 129 raw text is: THE EXTRATERRITORIAL APPLICATION OF UNITED
STATES LAW AND THE PROTECTION OF HUMAN
RIGHTS: HOLDING MULTINATIONAL
CORPORATIONS TO DOMESTIC AND
INTERNATIONAL STANDARDS
Mark Gibneyt and R. David Emerickt
I. THE PRESUMPTION AGAINST
It might come as a surprise to many that there is nothing illegal, at least
according to United States law, for a U.S. corporation to employ child labor
(foreign children, or even a U.S. child) in its overseas operations. The reason
is that nearly all of the workplace protections that employees in this country
enjoy (citizens and non-citizens alike), from the Fair Labor Standards Act
(FLSA),1 to the Occupation Health and Safety Act (OSHA),2 to the Family
Leave and Medical Act of 1993,3 and so on, are apparently inapplicable be-
yond the borders of the United States. In fact, through a series of decisions,4
the Supreme Court has refused to apply extraterritorially the following laws:
the Eight Hour Law,5 the Labor Management Relations Act,6 the Federal
Employer's Liability Act,7 the Railway Labor Act,8 the National Labor Rela-
t Professor of Political Science, Dept. of Political Science, Purdue University. Ph.D., Uni-
versity of Michigan, Political Science, 1985; J.D. Villanova Univ. School of Law, 1977; B.A.,
Boston College, Political Science, 1974.
t Professor of Law, Indiana Univ. Law School.
1. 29 U.S.C. § 210. The FLSA is rather unique in the sense that it specifically excludes
sections of itself from applying to employees in a workplace, within a foreign Country. These
sections refer to maximum hours, minimum wage, child labor, and essential labor practices. 29
U.S.C. § 213.
2. 29 U.S.C. §§ 651-678 (1970).
3. 5 U.S.C. §§ 6381-6387.
4. See generally Jonathan lbrley, When in Rome: Multinational Misconduct and the Pre-
sumption Against Extraterritoriality, 84 NW. U. L. REv. 598, 618 (1990) (discussing the applica-
tion of the extraterritorial presumption).
5. 40 U.S.C. §§ 324-25 (1940). See Foley Bros., Inc. v. Filardo, 336 U.S. 281 (1949).
6. 29 U.S.C. § 141 (1982). Also known as the Taft-Hartley Act, the Labor Management
Relations Act (LMRA) was an amendment to the National Labor Relations Act. Both acts
apply to industries affecting commerce which includes that between any foreign country and
any state. Despite the broad language, the Supreme Court has refused to apply the NLRA
extraterritorially. See McCullough v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10
(1963); Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138 (1957).
7. 45 U.S.C. § 51 (1982). The statute covers [e]very common carrier by railroad while
engaging in [interstate commerce or commerce between] any of the States or Territories and any
foreign nation or nations .... Notwithstanding this language, the Supreme Court has limited
the statute to domestic applications. See New York Cent. R.R. v. Chisholm, 268 U.S. 29 (1925).
8. 45 U.S.C. § 151 (1982). The Railway Labor Act was enacted to apply to any rail carrier
in interstate commerce, and was amended in 1936 to apply to carriers by mail engaged in inter-
123](ViewImageLocal?handle=hein.journals/tclj10&div=8&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most