ABSTRACT
This chapter aims to show how maddeningly uncertain the preliminary distinction really is, and with it how the entire basis for evaluating extraterritoriality collapses. It describes the international case law to determine how, in practice, the territorial/extraterritorial divide is constructed in different branches of the law. The development of EU and US case law on antitrust jurisdiction has rendered effects-based jurisdiction acceptable in international law, but has also relabelled effects-based jurisdiction as ‘extraterritorial’ instead of ‘territorial’. The European Court of Justice has thus asserted ‘territorial’ jurisdiction over foreign cartels, which is basically equivalent to US courts’ ‘extraterritorial’ jurisdiction. In fundamental rights cases, the inverse seems to occur: events that may reasonably be called ‘territorial’ are deemed ‘extraterritorial’. The disconnect between the expansive reading given to territoriality in criminal law, and the restrictive one given to it in fundamental rights cases is strongest with regard to unmanned military drone attacks.
