We have previously reported on the recent criminal complaint filed against the Dutch company Aviation Services International B.V. and its owner Rob Kraaipoel. The complaint alleged, among other things, that Aviation Services purchased aircraft parts in the United States, exported them to the Netherlands and then later shipped them to Iran. The Bureau of Industry and Security (“BIS”) has now issued an Order temporarily denying export privileges to Aviation Services, Kraaipoel and related entities that had been involved in the transactions subject to the complaint. In this case, it seems to me, the BIS order is both an appropriate remedy and the only remedy in this case.

Nothing in the criminal complaint suggests that Aviation Services or any of its officers or employees, including Rob Kraaipoel, ever set foot in the United States in connection with these transactions. Nor is there even a scintilla of evidence that Kraaipoel or any of the other employees even went to Disneyland or anywhere else in the United States on a family vacation or for any other reason. A basic principle of international law is that a jurisdiction must have some minimum contact with a foreign citizen before it has the right to prosecute that foreign citizen for the laws of the prosecuting jurisdiction. We can be certain that the United States would assert this principle if the Netherlands sought to indict a U.S. citizen for exporting Dutch goods in violation of Dutch Law.

The Export Controls and Economic Sanctions Committee of the American Bar Association Section of International Law took that position quite clearly when it issued a recommendation that U.S. sanctions laws should not be imposed on foreign corporations where the only jurisdictional basis for doing so was that the articles involved are U.S. origin goods. The Committee explained its position as follows:

The most widely accepted basis in international law for prescribing legal rules of conduct is the territorial principle – that a sovereign may prescribe and apply its laws to conduct that takes place within its territory. … Foreign transaction controls that purport to regulate, proscribe or sanction conduct that takes place entirely outside the territory of a state do not satisfy the general formulation of the territorial principle.

Beyond that, of course, is the question as to whether the U.S. can extradite an individual from The Netherlands in connection with this criminal complaint. The Extradition Treaty between the United States and the Netherlands provides that an extradition may occur for conduct occurring outside the territory of the state being asked for extradition only if the party being extradited is a national of the requesting country or

The courts of the Requested State would be competent to exercise jurisdiction in similar circumstances

This provision permits a Dutch court to deny extradition by saying that, due to principles of international law, it would not be competent to exercise jurisdiction over a U.S. citizen who exported Dutch Goods from the United States.

Of course, the BIS order denying export privileges is an exercise of jurisdiction over U.S. companies and individuals and would impose sanctions on such companies and individuals for exporting items to Aviation Services and Mr. Kraaipoel. This is well within the jurisdictional authority of the United States and, it seems to me, is the appropriate course to be taken when foreign individuals, outside the jurisdiction of the United States, re-export U.S. origin items in violation of U.S. law.

I would, however, advise Mr. Kraaipoel to cancel any plans to vacation in the U.S.

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