In this chapter, the concept of jurisdiction as exercised by States (or regional organizations such as the European Union) is concerned. Such jurisdiction is concerned with the reach of a State's law: what link, if any, is required for a State to apply its laws to situations and persons? Jurisdiction is an aspect of a State's sovereignty, as the right to prescribe and enforce laws is an essential component of statehood. In the classic Westphalian understanding, this right has been limited to a State's territory, a limitation that at the same time ensures that no State intervenes in another State's affairs (Section 1). This idea is no longer strictly applied, if it ever was. Exceptions that allow for limited extraterritorial jurisdiction have been carved out, and, moreover, the territoriality principle has been construed rather liberally (Section 2). To be true, some States employ a rather strict presumption that the legislature does not normally intend to apply its laws extraterritorially, but such a presumption does not limit the discretion of the
This article deals with the fundamental evolution that the process of state recognition has gone through during the past few decades. Whereas the recognition of new states used to be subject to a relatively concise and clear-cut normative framework consisting of factual criteria, the dissolution of Yugoslavia marked the introduction of a new set of moral norms used to determine whether or not an entity should be recognized as a state. This evolution gave rise to a high level of uncertainty, among both authors and the state community, as was painfully shown by the international discord during the crises in Kosovo and South Ossetia/Abkhazia. A renewed normative framework for recognition that integrates both factual and moral criteria is needed if the international community wants to prevent each claim to statehood becoming a threat to international stability.
The deterritorialization of the Internet and international communications technology has given rise to acute jurisdictional questions regarding who may regulate online activities. In the absence of a global regulator, states act unilaterally, applying their own laws to transborder activities. The EU's “extraterritorial” application of its data protection legislation—initially the Data Protection Directive (DPD) and, since 2018, the General Data Protection Regulation (GDPR)—is a case in point. The GDPR applies to “the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to: (a) the offering of goods or services . . . to such data subjects in the Union; or (b) the monitoring of their behaviour . . . within the Union.” It also conditions data transfers outside the EU on third states having adequate (meaning essentially equivalent) data protection standards. This essay outlines forms of extraterritoriality evident in EU data protection law, which could be legitimized by certain fundamental rights obligations. It then looks at how the EU balances data protection with third states’ countervailing interests. This approach can involve burdens not only for third states or corporations, but also for the EU political branches themselves. EU law viewed through the lens of public international law shows how local regulation is going global, despite its goal of protecting only EU data subjects.
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