Foreign Laws: Are They Applicable Here?

Foreign law is the national law of a country other than the United States. It defines the relationships within its borders and includes the constitutions, statutes, regulations, and court decisions of the particular country in question. Foreign law is not the same as international law, which governs the relations between two or more nations, and includes concepts such as international security law, international criminal law, and international humanitarian law. While international law is not strictly enforceable upon nations, it largely operates through the consent of participating nations. Foreign laws do not apply in other countries, but in some cases, a country may choose to adopt a foreign law as its own.

Foreign laws and their application to visitors

When travelling to a foreign country, it is important to remember that you are subject to the laws of that country, which may be very different from the laws in your home country. Understanding the local laws and customs is essential, as ignorance of the law is generally not considered a valid defence if you break the law.

In most cases, your rights as a citizen of your home country are not automatically transferable to another country. This means that you will be judged by the local laws and legal system of the country you are visiting. For example, some countries have strict laws against jaywalking, littering, or vandalising property, and you could be arrested or even imprisoned for breaking these laws.

If you are arrested or detained in a foreign country, your embassy or consulate can provide limited assistance. They can notify your family or friends, provide you with a list of local lawyers, ensure that you receive reasonable medical care, and explain the local criminal justice process. However, they cannot provide legal advice, represent you in court, or interfere with the legal process by stating your innocence or guilt.

It is important to be aware of the specific laws and customs of the country you are visiting, as they can vary significantly from your home country. For example, laws protecting human rights, women's rights, and LGBTQ rights may not exist or may be less comprehensive in some countries. Additionally, certain freedoms and rights that you may be accustomed to may be limited or unprotected, such as freedom of speech, freedom of assembly, or the right to a speedy trial.

Before travelling to a foreign country, it is recommended to review the latest travel advisories and risk indicators provided by your government. These advisories can provide valuable information about the local laws, customs, health and safety conditions, and potential risks associated with travelling to that country. By understanding the local laws and customs and being aware of any potential risks, you can help ensure that you have a safe and enjoyable trip.

Extraterritorial criminal jurisdiction

ETJ can be applied in the following criminal cases:

• Crime in U.S. territorial waters or vessels
• Implementing treaties and international agreements
• Foreign commerce-related crimes with a U.S. nexus
• Acts committed by or against a U.S. national outside the country
• International child abduction
• Taxation of non-resident Americans

The U.S. Constitution does not explicitly address geographic limitations on federal criminal law, but several clauses imply that federal power can be applied outside the country in certain circumstances. The courts have generally held that extraterritoriality does not make a federal criminal statute unconstitutional, and Congress has the power to enact laws that govern conduct occurring in other countries.

Extraterritorial jurisdiction is a significant issue in the area of human rights, especially regarding the activities of transnational companies. States often allow these companies to incorporate under their legal frameworks without regulating their activities outside their jurisdiction. The adverse human rights impacts of these companies' extraterritorial activities include community displacement, effects on land, water, and housing, and environmental pollution.

To address this challenge, several mandatory reporting and human rights & environmental due diligence legislation with extraterritorial effects have been developed or adopted. These legislative instruments introduce new responsibilities for businesses regarding the human rights impacts of their overseas operations and global value chains.

U.S. laws governing international activities

In addition to the laws of the host country, U.S. citizens and organizations are also governed by U.S. laws when abroad. These laws are in place to protect U.S. citizens and organizations from financial and criminal penalties.

Antiboycott Laws

The U.S. government prohibits U.S. organizations from participating in boycotts of other countries, notably Israel. These regulations extend to international agreements that discriminate on the basis of race, religion, sex, national origin, or nationality. Organizations that provide information about individuals to foreign countries for boycott-related reasons must report these requests to the U.S. Department of Commerce Office of Antiboycott Compliance.

The Foreign Corrupt Practices Act (FCPA)

The FCPA prohibits U.S. citizens and organizations from offering or paying bribes to foreign governments or political officials to influence decisions. Harvard University, for example, could be held liable for penalties for FCPA violations even if the payment is made by a local non-employee acting on their behalf.

Export Control Regulations

U.S. export control regulations restrict the export of certain goods, services, information, software, and technology. These rules apply to both shipping and hand-carrying goods and information, and particularly scrutinize scientific equipment and biological specimens.

Economic Sanctions

The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) administers and enforces economic and trade sanctions to protect against threats to national security, foreign policy, or the economy. These sanctions may be comprehensive embargoes or targeted sanctions and include restrictions on dealings with certain foreign countries, individuals, or entities.

Other Financial Controls

U.S. law prohibits concealing the identity, source, or destination of illegally obtained money, as well as providing material support or resources to foreign terrorist organizations.

Currency and Foreign Bank Account Reporting

U.S. citizens must report to U.S. Customs and Border Protection when importing or exporting more than $10,000 in currency or monetary instruments. Additionally, individuals with a financial interest in or authority over foreign bank accounts exceeding $10,000 must report this to the U.S. Treasury Department.

How the legal system works in a foreign country

The legal system of a country is shaped by its unique history and individual variations. There are five legal systems in the world today: civil law, common law, customary law, religious law, and mixed legal systems. Civil law systems have their origin in the Roman legal tradition, with comprehensive, frequently updated legal codes. Common law systems rely more on precedent and judicial decisions that have already been made. Customary law systems are based on patterns of behaviour or customs that are accepted as legal requirements or rules of conduct within a country. Religious legal systems are based on texts or traditions within a given religious tradition, such as the Quran in many Islamic nations. Mixed legal systems refer to legal systems where two or more of the above legal systems work together.

When travelling to another country, it is important to familiarise yourself with the local laws and legal system, as they can vary significantly from your home country. For example, in a common law system like the United States, judicial decisions establish legal precedents, whereas in a civil law system like France, codified statutes are the most important source of law. Not knowing the local laws can get you into serious trouble, as you are obligated to act in accordance with foreign law as a foreigner in a foreign land.

If you are a citizen of a country with consular services, your embassy or consulate may be able to assist you in limited ways if you find yourself in legal trouble abroad, such as visiting you in jail, providing a list of local attorneys, or notifying your family and friends. However, they cannot interfere with the legal process of the host country and you will be subject to the local laws and legal system.

Foreign law research

Understanding Foreign Law

Foreign law refers to the national law of a country other than the United States. It defines the relationships and regulations within the borders of a particular nation. The primary sources of foreign law can include constitutions, statutes, regulations, and court decisions, depending on the type of legal system in that country. It's important to distinguish foreign law from comparative law, which examines similarities and differences between legal systems, and international law, which governs relations between nations.

Step 1: Understanding the Legal System

The first step in foreign law research is to understand the structure of the legal system you are researching. Different countries have different legal systems, and by grasping how the system operates, you can ensure you don't miss any crucial pieces of law. This step is essential for navigating the complexities of varying legal traditions and approaches worldwide.

Step 2: Identifying Your Research Needs

The next step is to be clear about what you are looking for. Identify the specific type of legal information you require, such as a case, a statute, a regulation, or a constitutional provision. Also, consider the format you need, including language, print or electronic versions, and whether you need the full text or a summary.

Step 3: Locating Primary Sources

Identify and locate the primary sources of law for the country in question. These sources could include constitutions, statutes, regulations, and court decisions, depending on the legal system. There are several electronic resources available to help with this step, such as online databases and research guides.

Step 4: Consulting Secondary Sources

Secondary sources can be valuable when you need a comparative perspective or when primary sources are challenging to find. You can find secondary sources in research guides, international law databases, and library catalogs. If a particular source is not available, you can often order it through interlibrary loan services.

Step 5: Seeking Additional Help

Foreign and international legal research can be challenging, and sometimes you may need additional assistance. Reference librarians and legal research professionals can provide guidance and suggest alternative resources to try when you hit a dead end.

Additional Considerations

When dealing with foreign law, it's important to remember that U.S. laws may still apply to certain activities conducted abroad by U.S. citizens or organizations. Additionally, when traveling or working in a foreign country, it is essential to understand and obey the local laws, as the U.S. government's ability to provide legal assistance to its citizens abroad is limited.

Frequently asked questions