Objective Territorial Principle or Effects Doctrine? Jurisdiction and ...

In.Law | 6 (2006) | 285
This article examines how the principles of jurisdiction function in cases
in courts involving internet. The concrete question to be dealt with is twofold.
First, do the courts in cases involving internet use the established principles of
jurisdiction, or do they deviate from these principles and apply new logic and
reasoning to internet cases? The observation of this article is that the courts
indeed use the established principles of jurisdiction rather than inventing new
rules specifically for internet cases. Second, given this observation, is there any
novelty in the principles of jurisdiction in internet cases? A thesis of this article is
that although the principles of jurisdiction appear to be unaffected by cyberspace,
the way they function in internet cases is not identical to the way they functioned
in previous cases. The title of the present article is a teaser of this thesis.
The question of jurisdiction over online acts can arise both in a criminal
context and in a civil context. As the brief introduction above suggests, this article
deals with issues of public international law, i.e., criminal jurisdiction 3 as opposed
to civil jurisdiction. In studies of jurisdiction in public international law, the
subject is further divided into either two categories (prescriptive and enforcement
jurisdiction) 4 or three categories (prescriptive/legislative, judicial/adjudicative and
executive/enforcement jurisdiction). 5 This article adopts the former approach
since the division into three categories is not necessary for the purpose of this
article. When law is applied to a specific case by a court, it is considered as a
concrete manifestation of prescriptive jurisdiction. Unless specifically named
otherwise, jurisdiction in this article means prescriptive jurisdiction in this
sense. It is prescriptive jurisdiction that has always raised important theoretical
challenges especially with regard to its extraterritorial reach, 6 and it continues to
do so in the internet context.
3 “Criminal jurisdiction” in this context refers not only to jurisdiction over criminal matters
in a narrow sense. It refers to jurisdiction over all matters related to coercive measures by the state
authorities that are implemented to secure compliance with the law. Douglas E. Rosenthal & William
M. Knighton, National Laws and International Commerce: Problem of Extraterritoriality, (1982),
p. x. 4 Vaughan Lowe, Jurisdiction, in International Law 329, (Malcolm D. Evans ed. 2003), pp.
332-33; Pierre-Marie Dupuy, Droit international public (8th ed. 2006), pp. 82-83.
5 Michael Akehurst, Jurisdiction in International Law, 46 Brit. Y.B. Int’l L. (1972-73), pp. 145-
212; Antonio Cassese, International Law (2nd ed. 2004), pp. 49-51.
6 As to the enforcement jurisdiction, there is a wide agreement that it has to be strictly territorial,
in the sense that it cannot be exercised in the territory of another State without consent of
that State.