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The General Data Protection Regulation (the GDPR) of the European Union (EU) emerges as a hot-button issue in contemporary global politics, policies, and business. Based on an omnibus legal substance, extensive extraterritorial scope and influential market powers, it appears as a standard for global data protection regulations as can be witnessed by the growing tendency of adopting, or adjusting relevant national laws following the instrument across the globe. Under Article 3, of the GDPR applies against any data controller or processor within and outside the EU, who process the personal data of EU residents. Therefore, the long arm of the GDPR is extended to cover the whole world, including Malaysia. This gives rise to tension worldwide, as non-compliance thereof leads to severe fines of up to €20 million or 4% of annual turnover. This is not a hypothetical possibility, rather a reality, as a huge amount of fines are already imposed on many foreign companies, such as Google, Facebook, Uber, and Equifax to name a few. Such a scenario, due to the existence of state sovereignty principles under international law, has made the researchers around the world curious about some questions, why does the EU adopt an instrument having the extraterritorial application; whether the extraterritorial scope is legitimate under normative international law; how the provisions of this instrument can be enforced, and how these are justified. This article attempts to search for answers to those questions by analyzing the relevant rules and norms of international law and the techniques of the EU employed. The article concludes with the findings that the extraterritorial scope of the GDPR is justified under international law in a changed global context. The findings of this article will enlighten the relevant stakeholders, including Malaysian policymakers and business entities, to realise the theoretical aspects of inclusion of the extraterritorial feature of the GDPR, and this understanding may facilitate them to map their future strategies.

INTRODUCTION. Currently, states can apply a whole range of law enforcement measures at sea in order to prevent such unlawful phenomena as piracy, slave trade, drug trafficking, migrant smuggling, etc. However, the problem of the exercise of jurisdiction by states within various maritime areas is the main sticking point during the implementation of these measures. In an attempt to exercise the law enforcement function at sea, the state can't ignore the fact that its ability to create legal norms and ensure their effective implementation depends not only on its will as a sovereign, but also on the restrictions imposed by international law. Therefore, maintaining a balance between limiting the “territorialization” of maritime areas and the need to carry out a law enforcement function logically entails the need to determine the nature and content of the concept of “jurisdiction of the state” within different maritime areas, as well as to identify specific features of this legal category. The present article focuses on this and other related issues.MATERIALS AND METHODS. Historical and comparative analysis along with dogmatic research approach were used in the research process and the entire research is well grounded in focusing on the norms of international treaty law and customary law. In addition to that this research focuses on the norms of national law governing issues related to the application of law enforcement measurement at the sea. Apart from those given material and methodical inputs, the doctrinal works of the relevant jurists have been used in this research.RESEARCH RELULTS. The author comes to an alternative conclusion that territorial jurisdiction within the maritime territory is not absolute, which is due, apparently, the principle of freedom of the high seas which have a longer support by the international community. The definition of jurisdiction as extraterritorial is not self-sufficient, since in case of conflict of jurisdictions, additional legal criteria are required to resolve such a conflict. The classification of extraterritorial jurisdiction depending on the principles on which it is based also does not solve the problem, since some principles, such as protective or universal, in turn, require additional criteria in order to become a self-sufficient tool to overcome legal uncertainty. The author notes that the ability to exercise territorial jurisdiction within maritime areas, as a rule, determines the ability to exercise legislative and executive jurisdiction, which are also not absolute. The exercise of extraterritorial legislative or executive jurisdiction at sea is potentially permissible only on the basis of international law to solve a specific function, for example, law enforcement.DISCUSSION AND CONCLUSION. The main problem of the varieties of jurisdiction proposed by in- ternational legal science is that each of them only supplements each other, describing a possible choice, but not explaining why a particular choice should be preferred in case of conflict. It is obvious that current uncertainty has created some severe impacts upon the institution of law enforcement measures at sea as a result of the absence of standards for enforcement measures that could make a balance to the mechanism. Hence the law enforcer has to be cautious with a number of factors in deciding the implementation of law enforcement measures within the sea.

This article analyses the decisions of Belgian and Dutch courts concerning the repatriation of the family members of foreign fighters who are now detained in dire conditions in North-East Syria. The article shows that, under international law, these women and children have no individual right to be repatriated by their State of nationality, based on either consular assistance, the extraterritorial applicability of human rights treaties, or the right of return to one's own country. Nonetheless there are good reasons why States should exercise their prerogative to repatriate.

This contribution argues that the right of access to extraterritorial jurisdiction shaped privilege-based communities across national borders. It discusses extraterritoriality as a legal framework that enabled and shaped the building of communities of foreigners from many different backgrounds. Extraterritoriality – counterintuitively – amalgamated and strengthened a community through that very diversity. This was precisely why that community of foreigners – specified as the odd ones out – understood itself as a social unit across national boundaries, loosening and even contesting its affiliation to a specific nation and/or empire.

Many States in the world such as China have no specific domestic laws providing for the crime of piracy, leading to the question whether these States have the competence to punish piracy as required by international law. This paper argues that the lack of a crime of piracy within a domestic legal system should not become an insurmountable obstacle for States to prosecute pirates. Prosecution of pirates without a crime of piracy is feasible in a State that has domestic criminal laws that deal with illicit activities similar to piracy by indicting perpetrators with other criminal offences. While it would be an ideal solution for that State to establish a specific crime of piracy in its domestic legal system, it is important to consider the difficulties in setting the definition of piracy and the degree of punishment appropriately, and realize that the major deficiencies in punishing pirates under other existing domestic crimes can be basically addressed within an existing domestic legal system. The main purpose of universal jurisdiction over piracy to punish criminals to the maximum extent and the changing situation of piracy also require States to always be ready to deal with piracy. Therefore, prosecuting pirates as another crime is a realistic compromise. Furthermore, for a State without a crime of piracy, it is more urgent for it to build up legal grounds for exercising universal jurisdiction over piracy and relevant procedural provisions on the exercise of extraterritorial jurisdiction over international crimes at sea.

The subject of the applicable jurisdiction in relation to the members of the armed forces of the Russian Federation stationed on the territory of the Republic of Moldova is a current one for the international community. Since the principle of sovereign equality of states is one of the fundamental principles in public international law, each state retains its right to exercise jurisdiction over persons and goods located within or outside the country [1, p.39]. Under these conditions,a single solution cannot exist, such situations being regulated by international agreements, including bilateral and multilateral. International agreements may provide for the application of state jurisdiction under certain conditions, the requirements for surrender and extradition of persons, the establishment of Commissions of Inquiry or Conciliation for the purpose of settling conflict situations.

Cross-border trade, industry outsourcing, and animal migration are increasingly challenging states that want to take their commitment to protecting animals seriously. When multinationals threaten to outsource, even the most powerful states succumb to economic pressure and give corporations what they so avidly desire: laissez-faire. Some argue this is an inevitable consequence of globalization; others say it prompts us to question whether animal law is not better off being regulated by international law. This chapter takes a third path. Instead of proposing that nations seek agreement on low and mostly ineffective animal welfare standards, it posits extraterritorial jurisdiction as a promising avenue for animal law, and takes trophy hunting as its example to illustrate the many jurisdictional options for states to overcome regulatory gaps in animal law and make animal issues more visible on the international plane.

Abu Hamza is serving a life sentence in an American prison, having been convicted of terrorist offences in 2014. He was previously imprisoned in the United Kingdom. Two central questions arise from his case; whether the UK and US acted lawfully under international law in applying their criminal law against Hamza, and whether that application of law was appropriate. The answers to these questions are that Hamza’s subjection to legal process was of dubious legality and not completely proper. The links between the UK and the US and Hamza, be they territory, nationality or otherwise, were in some instances insufficient per se and lacking relative to third states. His case is a story of justice imperfectly done. Keywords: Legality; Proper Law; Extraterritorial Jurisdiction; Extradition; Abu Hamza

The article reflects the application process of international law in solution of territorial conflicts of the Republic of Moldova and Georgia. The regime of international humanitarian law offers a certain level of protection for population, prosecuting alleged offenders for war crimes, such as rape, murder and torture, protecting civilian assets. However, the potential level of protection depends on the classification of the conflict. There is analyzed the subject regarding applicable jurisdiction to members of the Russian Federation’s armed forces allocated on the territory of the Republic of Moldova as a current one for public international law. What about the Georgia, this country appealed to the principle of territorial integrity, while South Ossetia appealed to peoples’ right to self-determination. As a result of the armed attack on South Ossetia, Georgia violated the principles of international law, namely: prohibition of the use of force or threat of force, respect for human rights and fundamental freedoms, as self-determination of the people

Chapter 10 examines the legal risks of protecting animals abroad by offering a full analysis into the legality of extraterritorial jurisdiction under international law, and is intended to guide states that wish to use it. The reader is introduced to the types of jurisdictional conflicts that can emerge in animal law and shown how states can unilaterally prevent, manage, or mitigate them (such as through the principle of reasonableness, the rule of law, and the prohibition of double jeopardy). The chapter describes avenues for conflict resolution, including resorting to the principle of comity, or entering bilateral and multilateral treaty negotiations. It then elucidates the circumstances under which exercise of jurisdiction violates international law, in particular, the principles of sovereign equality, nonintervention, territorial integrity, and self-determination of peoples. The chapter concludes with an examination of the consequences a breach entails under international law, which is as useful for animal law as much as for other fields of law grappling with extraterritoriality.

Extraterritorial jurisdiction is a concept that has been studied and applied for a long time in the legal practice of a number of states. With the evolution of international law, the jurisdiction of each state is established not only on the basis of territorial factor, but also of other factors that represent certain relationship with the state, such as the nationality, the effect of the act on the nation and national sovereignty. These jurisdictions are extraterritorials. However, the grounds for establishing this extraterritorial jurisdiction arouse a lot of debate. The paper analyzes the relationships that make up extraterritorial jurisdiction in accordance with international law and relates to the practice of Vietnam law to clarify the changes of the legal system of Vietnam at present in establishing its jurisdiction over persons and things.

Recently the European Court of Human Rights has been challenged with questions concerning the scope of the State’s responsibility for violations of human rights that occurred on international waters. The complaints concern the international fight on illicit drug trafficking, piracy and illegal immigration. The analysed case law provides that occurrences on international waters constitute cases of extraterritorial jurisdiction and may engage responsibility of the State under the echr in the events that take place on board a vessel flying its flag (jurisdiction de iure) and in case of occurrences that happen on board foreign vessels, if the State exercises an effective control over a ship or its crew (jurisdiction de facto). Unfortunately, the Court’s findings prove difficult to follow in a few points as the judges applied the Strasboaurg standard too strictly, irrespective of the practical challenges of maritime law-enforcement operations and existing institutions of the law of the sea.

Application of internal law by a state beyond its own territory is an extraordinary action in international law. It requires not only a solid justification but is also subject to many restrictions. It often comes to conflicts against this background that is why extraterritorial jurisdiction is considered as a dangerous but yet an effective instrument of foreign politics. The article not only provides a concise definitions of extraterritoriality but also points to its acceptable bases (liaisons) and restrictions. Moreover, a review of interesting, representative doctrine stances has been done. Controversies and dangers related to the discussed institution are explicitly emphasized. In contrast, the selected examples of conflicts resulting from extraterritorial application of internal law will be discussed in the upcoming second part of the reflections. The entire article is not meant to be a comprehensive overview but rather a basis for a more detailed analysis and discussion.

francaisUn arret recent d’une importante instance d’appel americaine a relance une question de droit international controversee: un Etat peut-il obliger a une personne sur son territoire d’obtenir et de produire du materiel qui lui appartient ou qu’il controle, mais qui est stocke sur le territoire d’un Etat etranger? L’affaire en question, Etats-Unis c Microsoft, traite de donnees electroniques stockees a l’etranger et recherchees dans le cadre d’une poursuite penale. Elle souligne la complexite juridique actuelle entourant la collecte transfrontaliere de preuves electroniques, ce qui a genere des frictions et une pratique divergente entre les Etats. L’auteur affirme que les problemes impliques sont mieux compris — et potentiellement resolus — selon l’optique du droit international public de la competence, et plus particulierement de l’interdiction de l’exercice de la competence d’execution a l’etranger. Une analyse de la pratique des Etats revele que la collecte transfrontaliere non-autorisee de donnees est percue par les Etats comme une atteinte a leur souverainete territoriale ainsi qu’une contravention a l’interdiction d’execution extraterritoriale. Cette analyse se prete bien a l’evaluation du genre d’activites etatiques traitees dans l’affaire Microsoft Ireland. EnglishA recent and prominent American appeals court case has revived a controversial international law question: can a state compel a person on its territory to obtain and produce material that the person owns or controls, but which is stored on the territory of a foreign state? The case involved, United States v Microsoft, features electronic data stored offshore that was sought in the context of a criminal prosecution. It highlights the current legal complexity surrounding the cross-border gathering of electronic evidence, which has produced friction and divergent state practice. The author here contends that the problems involved are best understood — and potentially resolved — via an examination through the lens of the public international law of jurisdiction and, specifically, the prohibition of extraterritorial enforcement jurisdiction. An analysis of state practice reveals that unsanctioned cross-border evidence gathering is viewed by states as an intrusion on territorial sovereignty, engaging the prohibition, and that this view properly extends to the kind of state activity dealt with in the Microsoft Ireland case.

The recent decision in the US Supreme Court Kiobel case applied the presumption against extraterritoriality towards the Alien Tort Statute, decreasing the potential scope of tort actions that can be made against corporations for severe human rights violations. In light of the growing influence of multinational corporations and the lack of any international law regime to regulate corporate wrongdoing, this decision might be seen as a blow against one of the few potential avenues for justice for those victims of corporate human rights violations. The Alien Tort Statute is not a jurisdictional statute that allows for claims under international law but is rather a uniquely American cause of action unconnected to international law. The question remains whether an extension of American law to provide remedies for severe corporate human rights abuses can be justified in the absence of any such remedies existent in international law. This article will attempt to answer this question applying criteria developed by leading scholars in response to American exceptionalism. It will argue that the Kiobel decision, rather than being detrimental to holding corporations accountable, actually addresses many of the negative aspects of extraterritorial litigation whilst preserving some possibility of remedy for victims of severe human rights violations by corporations.

What is at stake if justice authorities decide to hack a computer system that is physically located on a server outside the territory of the state they represent – for instance, because a malicious attack was operated from foreign territory, causing serious harm to a variety of computing systems? The article explores potential answers to this question, starting with a discussion of the makings of territorial jurisdiction. My starting point is an inquiry into the territorial spatiality of modern jurisdiction that traces the history of the idea of mutually exclusive jurisdiction that informs international law. I will argue that such territorial spatiality has been generated by the technologies of cartography and discuss how this connects with the notion of terror, with Bodin’s absolute sovereignty, and with Schmitt’s understanding of occupatio as central to territorial sovereign jurisdiction. Next, I investigate the powers of extraterritorial jurisdiction in the light of Grotius’s Mare Liberum. His natural law theory entails that the high seas be seen ‘as a passage’ and ‘a global commons’ that enable free trade and the common good of mutual collaboration between independent states. The eschatological overtones of Grotius’s belief in the moral and economic benefits of free trade have been coined ‘economic theology’ by Agamben, paraphrasing Schmitt’s ‘political theology.’ We can detect a similar ‘economic theology’ in early descriptions of the benefits of cyberspace. This, finally, raises the question of the feasibility and the desirability of a ‘cyberspace liberum,’ taking into account various attempts to gain control over parts of cyberspace for instance, by means of a so-called indirect extraterritorial effect. I conclude with the question of whether we can sustain cyberspace as a passage and as a global commons, considering its non-modern spatiality and keeping in mind how it engages with the landscape of territorial jurisdiction while often evading that jurisdiction’s core of mutually exclusive boundaries.

In assessing the legality of the killing of Osama bin Laden one is reminded of a saying about the situation in Lebanon. If you think you understand it, it has not been properly explained to you.Of course, one major obstacle is that we do not have all the facts. However, we also do not have all the law.The complexity of analyzing the legality of the killing begins with the threshold issue of applicable law. Is the conduct to be analyzed according to domestic law or international law? If domestic law, then which country’s domestic laws are applicable? Certainly that of the United States and Pakistan would be applicable. Saudi law might also apply (e.g., on the basis of nationality), in addition to the laws of those countries that have another basis under their domestic law for exercising extraterritorial jurisdiction (e.g., on the universality principle).

This research explains the definition of jurisdiction, development of the extraterritorial jurisdiction and its regulation in international law which includes its principle and also boundaries. This research then analyses cases before Al- Skeini and others v. UK case regarding the application of jurisdiction mentioned in Article 1 of the European Convention on Human Rights (ECHR) by European Court of Human Rights (ECtHR). Furthermore, this research analyses the applications of Article 1 ECHR in United Kingdom’s House of Lords decision and ECtHR decision in Al-Skeini. In its decision ECtHR stated that the existence of Public Power in Al-Skeini causes an extraterritorial jurisdiction in that case. The judgement caters to the human rights protection but on the other hand it still leaves confusion in determining the requirement of extraterritorial jurisdiction in the ECHR.

The natural law understanding of a family of nations included any polity as a member, for there was no requirement that a state possess a formal state structure like that of European monarchies or comply with a “standard of civilization.” Japan took part in international actions as a sovereign state-including neutrality during the Franco—Prussian War and the international effort to suppress the coolie trade. Japanese legal scholars also participated in the two organizations committed to expanding international law in the nineteenth century: the Association for the Reform and Codification of the Law of Nations and the Institut de droit international. This international activity demonstrates that, instead of “civilization,” European powers hoped to coordinate national differences regarding marriage, contracts, and so forth, in accord with their procedure of “conflict of laws.”

On the international plane, there has been an increasing encroachment on the sanctity of the domaine reserve of states, through the necessity to extend the regular notion of territorial jurisdiction, extraterritorially. In this regard therefore, there has been a paradigm shift in the way that jurisdiction is viewed, due to the contemporary challenges posed at the international level. This paper seeks to situate the extensions of jurisdiction within the existing framework governing jurisdictional competence, emphasizing the value of the paradigm shift in addressing critical contemporary challenges on the international stage. This is achieved primarily through an analysis of the case law of the International Court of Justice on matters of extraterritorial jurisdiction.

The article analyses one specific aspect of the long and complicated proceedings in which the Russian oil company Yukos was involved: the question of jurisdiction relating to the application that Yukos made to a court in Houston, Texas, to open bankruptcy proceedings under chapter 11 of the US Bankruptcy Code and thus grant protection against the creditors to permit restructuring of the company. Yukos being a Russian company burdened by massive debt connected with taxes owed to the Russian authorities, and virtually the totality of its as-sets being located on Russian territory, the first question that arises is how it is possible for a court in the United States to have jurisdiction in this case. This article examines the question of extraterritorial jurisdiction in civil cases, from the point of view of both private and public international law.

States are increasingly asserting jurisdiction over criminal offences that occur extraterritorially. To some extent, this is a response to transnational criminal activity. The assertion of jurisdiction by States outside their territory, however, has been a source of continuing controversy and legal uncertainty. This is because the principles of jurisdiction under international law do not adequately resolve competing claims to jurisdiction and are primarily concerned with the relationship between States and not as between the State and the individual. In that context, this thesis considers principles of jurisdiction and mechanisms by which to achieve jurisdictional restraint under international law. In so doing, the means by which assertions of extraterritorial criminal jurisdiction are regulated in Australia, India and the United States are assessed. A chosen conception of the rule of law is used to provide the criteria by which to measure such regulation. The criteria drawn from the chosen conception of the rule of law is that it requires: 1) that the law must be both readily known and available, and certain and clear; 2) that the law should be applied to all people equally, and operate uniformly in circumstances which are not materially different; and 3) that there must be some capacity for judicial review of executive action. This thesis measures the regulation of extraterritorial jurisdiction by Australia, India and the United States against these three criteria. In so doing, the relationship between municipal law and international law in each jurisdiction is considered, as is the potential utility of the ‗abuse of rights‘ doctrine as a regulator of extraterritorial criminal jurisdiction. The thesis then presents three tiers of conclusions. The first tier relates to the regulation of extraterritorial jurisdiction by Australia, India and United States, respectively. The second tier is concerned with conclusions as to the regulation of extraterritorial jurisdiction in common-law jurisdictions. The third tier identifies contributions this thesis makes to the broader dialogue on extraterritorial jurisdiction. Ultimately, this thesis argues that exercises of extraterritorial criminal jurisdiction can be useful in seeking to achieve some ends, such as the regulation of transnational crimes. There must, however, be some accountability in extraterritoriality. Principles of jurisdiction under both international and municipal law are generally permissive. Therefore, the means by which jurisdiction is exercised must be better regulated and domestic courts need tools with which to so. This thesis suggests that the abuse of rights doctrine may be a useful tool in such regulation and if so, could result in the emergence of a specialist abuse of jurisdictional rights doctrine.

This Article considers the overall regime established by the 2000 Palermo Protocol to demonstrate the manner in which the legal order of States. In so doing, and with special reference to the definition of trafficking, it shows the limited ability of States to actually carry out their avowed wish to suppress the trafficking in persons. Because their jurisdiction over what is termed ‘trafficking’ is different, the ability for the origin, transit, and/or destination countries to ‘join-up’ is rendered unworkable by, for instance, extradition treaties that require crimes to be common to both jurisdictions, or the application of extraterritorial jurisdiction when what is deemed a crime in one jurisdiction is not so in another. Thus, in a very short period of time, legislators around the world have created, under the banner of ‘trafficking,’ an international regime which, through its implementation in the domestic sphere, has fractured its potential effectiveness.

International criminal law is currently subdivided into international criminal law stricto sensu — the so-called core crimes — and crimes of international concern — the so-called treaty crimes. This article suggests that the latter category can be appropriately relabelled transnational criminal law to find a doctrinal match for the criminological term transnational crime. The article argues that such a relabelling is justified because of the need to focus attention on this relatively neglected system, because of concerns about the process of criminalization of transnational conduct, legitimacy in the development of the system, doctrinal weaknesses, human rights considerations, legitimacy in the control of the system, and enforcement issues. The article argues that the distinction between international criminal law and transnational criminal law is sustainable on four grounds: the direct as opposed to indirect nature of the two systems, the application of absolute universality as opposed to more limited forms of extraterritorial jurisdiction, the protection of international interests and values as opposed to more limited transnational values and interests, and the differently constituted international societies that project these penal norms. Finally, the article argues that the term transnational criminal law is apposite because it is functional and because it points to a legal order that attenuates the distinction between national and international.

The decision of the Supreme Court of India in Republic of Italy v Union of India illustrates the legal and diplomatic complexities that can arise when nations, and states within those nations, have competing claims to jurisdiction over the prosecution of criminal offences. In our increasingly interconnected world, competing claims to jurisdiction are more likely. The decision, among other things, is concerned with legal aspects of coastal state jurisdiction in a federal system and sovereign immunity under international law. This decision is of interest because Australia, like India, is a coastal nation that divides power between federal and state governments. This case note sets out the factual background and legal frameworks that gave rise to the decision, considers the arguments made by each of the parties before the Supreme Court, and summarises the findings of the two presiding Judges. It then seeks to understand the relevance of the decision and any lessons that can be taken from it.

Several times, the African Union has voiced concerns regarding the alleged “abuse” of the principle of universal jurisdiction. The Union refers in particular to the prosecution of ‘African leaders’ before European courts which, in the view of the Union, could endanger international law, order and security. Against this background, the author examines the exercise of universal jurisdiction in Africa as well as in Europe over accused from Africa. While there is support for the assumption that so-called low-cost accused are exposed disproportionally to universal jurisdiction, there is no evidence of a geographical or racial bias. The author points to three current trends in the exercise of universal jurisdiction: the decline of universal jurisdiction in Europe, the ‘reversion’ of universal jurisdiction and the regionalization of universal jurisdiction. The latter trend is demonstrated in particular by the prosecution of Hissene Habre ‘on behalf of Africa’ before the Extraordinary African Chambers in Senegal. The author suggests that the regionalization of universal jurisdiction may represent a novel mode of extraterritorial jurisdiction, which has the potential to ease European-African tensions in the area of international criminal justice.

This article examines several recent case examples to show that the broad application of the Foreign Corrupt Practices Act (FCPA) jurisdiction is, in practice, in conflict with certain customary principles of international law. Generating new statistics on the enforcement of the FCPA against foreign corporations, I explore the proposition that the U.S. government's targeting of foreign businesses, and the lack of prosecution of their U.S. counterparts, has the effect of giving U.S. companies an unfair competitive edge in the global marketplace. Finally, given the ease at which the U.S. government can bring charges against a foreign company coupled with the fact that most charges are settled as opposed to litigated, the FCPA looks more like an international anti-corruption business tax, rather than a domestic criminal law with limited extraterritorial applications. The consequences of this new "international business tax," namely the power of the U.S. federal government to determine who pays the tax, how much they pay, and when they pay are further explored.

By the Act of 27 November 2013, the Dutch Government has radically changed the provisions of its Penal Code pertaining to the exercise of extraterritorial jurisdiction (Arts. 4-8 Penal Code). The new rules take effect from July 1st 2014 onwards. Most importantly, the Act widens the scope of the passive personality principle, generalizes the application of the domicile principle, which equates permanent residents with nationals for purposes of the application of the active personality principle, and establishes jurisdiction over foreigners present in the Netherlands who have committed a serious crime abroad if extradition proves impossible (aut dedere aut judicare), even if international law does not oblige the Netherlands to do so. In addition, the Act brings order to the Penal Code's hitherto rather chaotic jurisdictional provisions by, inter alia, grouping the jurisdictional mandates based on international legal instruments together in one provision, and limiting the number of jurisdictional grounds on which offences can be prosecuted.

Domestic courts and regulators, as well as international legal instruments and international supervisory mechanisms allow bystander States to exercise extraterritorial jurisdiction to protect global values and norms related to human rights and the environment. Such exercise appears to be conditioned, however, by a requirement of subsidiarity, pursuant to which bystander States should only exercise extraterritorial ‘global justice’-based jurisdiction where the primary jurisdiction State – the State where the impugned acts occurred or where the allegedly responsible person is registered – is unable or unwilling to intervene. Such techniques have essentially been developed to limit jurisdictional overreach and to prevent one State from imposing its own regulatory solutions on another State. Seen from this perspective, they embody the negative, sovereignty-based dimension of subsidiarity, rooted in the sovereign equality of States.Nevertheless, other techniques, embody a more positive, international community-driven dimension of subsidiarity, to be used with a view to upholding the integrity of international norms regarding human rights and the environment.

On 22 November 1996, the Council of the European Union adopted a framework regulation and agreed to joint action to ‘protect’ the interests of the European Union and its citizens against the extraterritorial application of legislation by non-member states. These measures were adopted in response to the extraterritorial application of certain measures by the United States, concerning trade with and investment in Cuba, as well as investment in Iran and Libya. These United States measures apply to all natural and legal persons irrespective of their nationality, residency, or place of activity. Thus, even nationals of a member state of the European Union residing and active in the European Union must comply with the United States measures. The enactment of this legislation marks a new episode in the on-going battle between the United States and the European Union over the frontiers of a state's (or an international organization's) jurisdiction to prescribe. This time, however, the European Union counteracted by the adoption of measures which can partly be characterized as retorsion measures and partly as countermeasures. The adoption of these measures by the European Union raises questions with respect to the legitimacy of the retorsion measures and the legality of the countermeasures.

Unlike inbound trade regulation, which is characterized by deep multilateralism, the regulation of export trade is characterized by significant unilateralism. Nowhere is this more apparent than with the United States’ export control laws. Since at least 1982, the United States has claimed the power to regulate the use and reexport of U.S. origin goods, software, and technologies located abroad, based primarily on the fact that these items are of U.S. origin (or are foreign-origin items with some U.S. content). These “item origin-based” jurisdictional claims, which in 1982 arose from a trade dispute with European countries over a proposed natural gas pipeline from the Soviet Union, resulted in a flurry of academic commentary in the 1980s, with most commentators condemning this U.S. assertion of extraterritorial jurisdiction. Attention to the issue has waned since then, but the United States’ problematic assertion of item origin-based export control jurisdiction remains in place.This Article asserts that the United States’ longstanding claim of extraterritorial export control jurisdiction is an under-appreciated but vitally important issue in need of resolution. Exponential growth in international trade means that the United States’ asserted jurisdictional reach is vastly broader today. This Article explains the nature and mechanics of the United States’ jurisdictional claim, provides a summary of the 1982 Soviet gas pipeline trade dispute, reconsiders the justifiability of the United States’ jurisdictional claim under prescriptive jurisdictional principles of international law, and finds the current approach legally awkward and strategically insufficient. It then considers the issue through the lens of more recent scholarship on transnational networks, mutual recognition arrangements, and unilateral trade actions, and concludes by recommending a multilateral approach that offers greater promise of both policy effectiveness and legality under international law.

When a state imposes its laws outside of its actual lands, it raises a question of extraterritorial jurisdiction. Serbia claims sovereignty over Kosovo, but does not control it; Kosovo has its own laws, and has been an independent state since 2008. While Serbia’s ability to enforce its laws is restricted, there is no limit to its power to make laws and adjudicate on matters pertaining to Kosovo. This exercise of extraterritorial jurisdiction has created practical uncertainties for the citizens of both countries, and may undermine peace and stability in the region and the European Union.

This Article posits that the present conception of protective jurisdiction — whereby states may assert jurisdiction over extraterritorial conduct that endangers certain national security interests — fails to delimit state conduct in a manner reconcilable with general principles of international law. Protective jurisdiction’s vague formulation has enabled states to use the concept as a pretext for legislating conduct in foreign territory that bears no meaningful connection to their national security. Take the example of a recent United States material support of terrorism law, which asserts protective jurisdiction over a broad range of foreign conduct in support of the Basque Fatherland and Liberty organization (“ETA”), even though the ETA arguably does not pose a meaningful threat of harm to U.S. national security. Under the prevailing international conception of protective jurisdiction, the U.S. statute is reviewed for “reasonableness” based on comity considerations and comparative state interests. Yet, without the consent of Spain and other affected states, such cross-border regulation should be subject to a rule of international law that requires a juridical link between the extraterritorial conduct and national security. This Article proposes to standardize such a link by reformulating protective jurisdiction as a circumstance precluding wrongfulness under international law. Just as the state of necessity and self-defense doctrines indicate circumstances where otherwise internationally wrongful conduct is exceptionally permitted for the purpose of national security, this Article argues that protective, cross-border regulation should be limited to those exceptional circumstances where it is necessary to protect the regulating state from harm to an essential security interest. Only in those circumstances would a state be sufficiently connected to extraterritorial conduct to warrant interference in the domestic affairs of another state.