The focus of Chapter 4 seeks to determine whether the dominant focus should be judicial or non-judicial. To that end, the manner in which the European Court of Human Rights has interpreted ‘jurisdiction’ under Article 1 of the ECHR in a representative sample of seminal cases pertaining to ‘grey zones’ is examined. The chapter highlights the inconsistency of Court practice, the manifestly inexecutable nature of many of the cases associated with grey zones and, consequently, the limits of the Court in affecting general or individual justice in practice in these regions. The chapter concludes by noting that effectiveness depends on looking beyond the Court.

This chapter re-inserts the (rethought) concept of territory into the legal-theoretical framework, offering a look at how this concept can be realised and might differently operationalise concepts such as sovereignty and jurisdiction. Taking the concept of sovereignty first, the chapter operationalises this concept as a bundle of legal rights, duties, etc. informed by legal realist methods and social constructivism. The chapter then turns to the concept of jurisdiction, problematising the ‘boundaries’ of and reterritorialising extraterritorial jurisdiction. The chapter offers an alternative to the ‘ownership’ and ‘exclusive’ model of legal rights, which otherwise has at its core a reified and flat territory. The final part explores actorhood, demonstrating how the spaces of international organisations can be understood as their territories. Taking as its starting point the possibility of territorial pluralism, multiplicity, and continuous (re)production, the chapter ends with an account of territories proliferating rather than diminishing. Taking the idea of reterritorialising seriously, it proposes a legal account of the relationship between actors and their spaces.

This chapter explores the extraterritorial application of the U.S. sanctions: namely, the ability of those sanctions regulations to reach non-U.S. actors or activities taking place outside of the United States. The chapter examines a recent trend towards increasing extraterritorial enforcement by the U.S. sanctions authority. In particular, the chapter discusses the objections of China to such extraterritorial application of U.S. sanctions laws. Of particular focus are Russia’s and China’s attempts to de-dollarize and resort to alternative financial networks to lessen the impact of these sanctions.

During recent decades, patent holders and implementers working within Standard Developing Organizations have successfully cooperated to develop new wireless standards that have benefited consumers all around the world. The standardization process has been successful because it has made all participants better off. The increased strategic use of jurisdiction-by-jurisdiction challenges by certain implementers to delay or avoid payment is threatening this successful process. In response, courts in various jurisdictions are moving to set global license terms. However, because some local courts are, or at least are perceived as, biased, licensors and licensees are maneuvering to influence which court ends up setting global FRAND terms (for example, by seeking anti-suit and anti-anti-suit injunctions). In this chapter, we explore the implications for the future of the standardization process of these developments. Specifically, we consider the implications of extraterritoriality when licensors and licensees belong to different jurisdictions and local courts may be biased in favor of local litigants. Our main concern is that current developments may lead to the fragmentation of global standards along geopolitical lines.

The North Pacific in the mid-nineteenth century was an oceanic borderland zone shaped by whaling and other extractive industries, and characterised by the rapid circulation of animals, people, commodities and capital. It was also a thoroughly imperial space: while Japanese, Pacific Islanders and white ‘beachcombers’ all worked aboard whalers, only the latter could leverage their citizenship to secure extraterritorial protection from imperial powers.

The history of the Bonin (J: Ogasawara) Islands illustrates this well. Until 1830 the islands had only the most fleeting history of human habitation, yet by 1863 they had emerged as a vital provisioning hub for the whaling fleet, populated by Native Hawaiians, Pacific Islanders and Anglo beachcombers. When the Tokugawa government began colonising the islands, the beachcombers pointedly refused to naturalise as Japanese citizens, and secured diplomatic backing from their respective consulates in Tokyo. In doing so they frustrated Japanese attempts to assert territorial sovereignty over the Bonins for a generation.

This chapter demostrates that the ambiguities of wartime neutrality in Macau continued to haunt China’s relations with Portugal in the post-war years. Five interconnected issues relating to Portuguese neutrality evidence China’s post-war quest for justice and recognition: the re-establishment of regular diplomatic contacts, the handling of Japanese property, the extradition of suspects of war crimes and collaboration, the abolition of extraterritoriality and critiques of neutrality in calls to return Macau to Chinese rule. These issues raised questions about the meaning of justice and the legitimacy of who got to wield it. In its relations with a small and relatively weak European colonial power, China sought to affirm its new post-war international status. However, this process was constrained by resistance to the Nationalists’ anti-imperialist goals in South China and by the changing fortunes of Nationalist power as the Chinese Civil War unfolded.

Under public international law, a State has a right to exercise jurisdiction. States are expected to show restraint when attempting to regulate a situation with foreign elements. The research outlines territory- and personality-based permissive principles of jurisdiction. EU data protection provisions that lend themselves to extraterritorial application fall into the subjective territoriality, objective territoriality, passive personality, effects doctrine and potentially protective principles of jurisdiction. The provisions do not come under any one of these principles, but rather an interpretation of several of them. The applicable law articles in the General Data Protection Regulation could most plausibly constitute the objective territoriality (where an act is terminated) and passive personality (the nationality of a victim) principles. Whilst there appears to be a shift from territory to personality, for example, by referring to data processing in the context of activities ‘in the Union’ or individuals ‘subject to the jurisdiction of’ rather than data processing in the context of the activities ‘on the territory of a Member State’ or ‘in the territory of’ each state party’, to justify the exercise of jurisdiction, territory is still necessary to trigger the application of jurisdiction in the online sphere.

Jurisdiction under public international law, that is, a State’s authority to make, apply or enforce law, has long been rooted in the Westphalian notion of a State having sovereign authority within its own physical territorial boundaries. The current socio-technological landscape has witnessed temporal and spatial shifts, which have changed how the States exercise jurisdiction.

Governments, companies and individuals are handling ever more digitised personal data, so it is increasingly important to ensure this data is protected. The EU, compared to most non-EU States, strongly advocates the importance of protecting personal data. EU data protection law is often considered the strictest and certainly the most influential in the world. There is an extraterritorial character to this law that throws into question traditional notions of public international law jurisdiction, wherein legislative authority is limited by territory.

Whereas EU data protection law reflects its being a fundamental right in the Union, the US’ information privacy laws are rooted in the marketplace. This research offers ways to approach transatlantic jurisdictional conflicts with the underlying goal of mitigating them. It explores how the EU’s characterisation of data protection as a fundamental right conditions how it may, does and should exercise extraterritorial jurisdiction.

Since the EU Charter of Fundamental Rights, which enshrines an autonomous right to data protection, gained binding legal effect in 2009, the right has gained broader territorial reach, become more prominent in jurisprudence and accorded more weight in balancing tests. Under international human rights law, the EU’s protective duty could apply in the a-territorial cybersphere in which data is processed. The Union has positive and negative obligations to respect, protect and fulfil its individual’ fundamental right to data protection. These are obligations of conduct and result, and apply within different spaces. The obligation to respect connotes a negative obligation of conduct, whereby the EU would have to refrain from conduct that would infringe upon someone’s enjoyment of the right to data protection. Similarly, the obligation to protect is a positive one of conduct, so the EU would be obliged to ensure a third party does not violate someone’s right to data protection. These obligations could legitimately apply outside EU territory or in places under its effective control. International human rights law casts a very wide jurisdictional net, however. This net per se would not serve to lessen transatlantic conflicts in jurisdiction, so public international law can offer some necessary limitations.

This chapter deals with Germany’s position on State jurisdiction and immunities. The first part, Jurisdiction of the State, addresses Germany releasing an Iranian citizen in a prisoner swap, as well as Germany considering further US sanctions on Nord Stream 2, a pipeline project delivering gas from Russia to Germany, an encroachment on its sovereignty as it understands them to be extraterritorial in nature. The second part, State immunity, deals with the Federal Constitutional Court classifying Greek debt restructuring measures as acta iure imperii. While the chapter agrees with the decision, it criticizes the Federal Constitutional Court for missing the opportunity to advance the discussion of a contentious matter of public international law. Another article assesses Germany’s (non)participation in US court proceedings for alleged colonial genocide and enslavement of the Ovaherero and Nama in what was formerly known as South West Africa and is now Namibia. The chapter argues that Germany is not answerable and that Namibia’s position in its negotiations with the German government over a political declaration concerning atrocities committed during colonial rule was weakened.

This chapter aims to investigate the extent to which the Netherlands has attempted to rein in transnational corporations from developing and emerging states by imposing requirements as a matter of regulatory compliance, either directly as an obligation formulated in a rule, or indirectly by offering corporations the opportunity to defend against civil violations. Section 1 of this chapter examines the Dutch Child Labour Duty of Care Law (2019). An evaluation of the parliamentary debates increases our understanding as to whether and to what extent competition from non-Dutch corporations – and, in particular, transnational corporations from developing and emerging states – in the global marketplace has had an impact on the stringency and reach of this legislative initiative. Section 2 discusses the (largely hypothetical) avenues available to bring claims against transnational corporations from developing and emerging states in Dutch courts.