4 The Principles of Extraterritorial Jurisdiction

Subject(s):

Jurisdiction of states, extra-territorial — Jurisdiction of states, nationality principle — Jurisdiction of states, passive personality principle — Jurisdiction of states, protective principle — Jurisdiction of states, universality principle — Jurisdiction of states, conflicts

The territoriality principle serves as the basic principle of jurisdiction in international law. However, national laws may be given extraterritorial application provided that these laws could be justified by one of the recognized principles of extraterritorial jurisdiction under public international law: the active personality principle, the passive personality principle, the protective principle, or the universality principle. This chapter discusses how continental European and common law countries exercise extraterritorial jurisdiction. While the active personality and the protective principles are generally deemed uncontroversial, the opposite is true for the passive personality and the universality principles. In fact, the universality principle has recently gained a remarkable but contested ascendancy. The chapter determines whether the exercise of universal jurisdiction, that is the exercise of jurisdiction without a direct link to the forum State, is lawful under international law, and if so, what limits international law attaches to it.