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

In.Law | 6 (2006) | 287
exercising jurisdiction is needed. 14 The bases of jurisdiction in the principles listed
above constitute indeed a sufficient connection accepted by States. The principles
that extend or complement the territorial principle, through b to e above, provide
the States with a right to regulate matters that do not entirely occur in their
territories or do not occur at all in their territories, but that are important in some
way or other for these States. 15
Since the bases besides the territorial principle are clearly admitted as principles
of jurisdiction, there may be cases where jurisdiction of more than one State overlaps.
In such cases, there may be a considerable difference between the law and policies
of the territorial State and those that another State seeks to impose by exercising
jurisdiction on the bases besides the strict territoriality. From the perspective of the
territorial State, when another State exercises jurisdiction extraterritorially in this
way, its freedom to act within its own territory can be threatened. 16 Consequently,
concurrent jurisdiction can produce a considerable friction in practice, too. This
explains why a sufficient connection is required when a State wishes to exercise its
jurisdiction on the basis other than the territorial principle.
This requirement of “sufficient connection” for extraterritorial exercise of
jurisdiction is the first important frame of reference that should be retained for
the subsequent discussion in the internet context.
2.2. Limits of Extraterritorial Jurisdiction.
Another important observation concerning principles of jurisdiction for the
subsequent discussion on internet cases is the limits of extraterritorial jurisdiction.
The past controversy over the effects doctrine, and how it compares with the
objective territorial principle, can illustrate this point.
The objective territorial principle is an extension of the territorial principle,
according to which a State has jurisdiction over an act that started abroad but was
14 Volker Epping & Christian Gloria, Der Staat im Völkerrecht, in Völkerrecht (Knut Ipsen ed.,
5th ed. 2004), pp. 321-22.
15 The universal principle is another established principle of jurisdiction that can be verified
in penal legislation of a multiple States. The principle is omitted from the survey in this article,
since it is an exceptional principle in that it does not require a sufficient connection between the
act in question and the State, or indeed, any connection. See Christian Tomuschat, Human Rights:
Between Idealism and Realism (2003), p. 274.
16 Michael Byers, Custom, Power, and the Power of Rules: International Relations and Customary
International Law (1999), p. 65.