Subjective and Objective Territorial Jurisdiction in International Law

Introduction

Subjective and Objective Territorial Jurisdiction addresses a central question in public international law: when is a cross-border event sufficiently connected to a state’s territory to justify the application of that state’s law? The answer turns on a disciplined distinction. A state may rely on the place where the relevant conduct occurred, or it may rely on the place where the legally relevant result occurred. The first is subjective territoriality. The second is objective territoriality (Mann, 1964; Ryngaert, 2015).

This distinction matters because territorial jurisdiction is not a loose appeal to national interest. It is a legal technique for connecting public authority to a defined territorial space. A state normally has wide competence over persons, property, conduct, and events within its territory, but that competence remains part of an international legal order based on sovereign equality. The same rule that supports authority at home restricts coercive action abroad (Crawford, 2019; Shaw, 2021).

The difficulty appears when conduct and consequence are separated. A person may act in one country and cause injury, loss, system damage, or environmental harm in another. A fraudulent instruction may be sent abroad but produce financial loss inside the forum state. A cyber operation may involve a user, device, server, victim account, and stored data in different jurisdictions. These examples show why territoriality cannot be treated as a simple factual question about where an event “happened”.

Subjective territoriality is strongest when the actor performs the legally relevant conduct inside the forum state. The connection is direct: the person acts within the state’s legal space and can normally be expected to obey its law. This form of jurisdiction also supports evidence gathering, public order, legality, and fair notice. Its weakness appears when conduct is fragmented, automated, corporate, or digital, because the legally relevant act may not be easy to locate (Akehurst, 1972–1973; Maillart, 2018).

Objective territoriality is more delicate. It permits jurisdiction where conduct abroad produces a result inside the forum state, but only if that result is legally relevant. The point is not that the foreign conduct has some indirect effect on the state. The point is that a required element of the offence or wrong occurs inside the territory: death, injury, financial loss, property damage, pollution, unlawful entry, or damage to a protected system. Without that discipline, objective territoriality risks becoming a disguised form of extraterritorial regulation (Mann, 1964; Ryngaert, 2015).

The classic Lotus judgment remains an unavoidable starting point for this debate, especially because it treated territorial connections in broad terms. Modern doctrine, however, cannot stop there. Later treaty regimes, the law of the sea, cybercrime instruments, mutual legal assistance practice, and contemporary scholarship show a more cautious structure. Territorial jurisdiction may justify prescription or adjudication, but it does not by itself authorise arrests, searches, seizures, or compulsory evidence gathering inside another state (Permanent Court of International Justice, 1927; United Nations, 1982; Council of Europe, 2001).

This article examines territorial jurisdiction only. It does not repeat the general bases of jurisdiction. Its narrower aim is to explain how international law distinguishes conduct within the forum, result within the forum, and enforcement beyond the forum. The central argument is that subjective and objective territoriality remain essential to international law, but their legitimacy depends on precision: the territorial element must be real, legally relevant, and compatible with the sovereignty of other states.

1. Territory and state authority

Territory is the ordinary legal space of state authority. It is the area within which a state normally governs persons, property, institutions, conduct, and events through its own law. In public international law, this connection between territory and authority is not incidental. It is one of the basic ways the international legal order allocates public power among states.

The starting point is sovereignty. A state is not merely a political community with a government. It is a legal person with authority over a defined territorial space and with independence in relation to other states. The Montevideo Convention expresses this idea through the familiar criteria of statehood: permanent population, defined territory, government, and capacity to enter into relations with other states (Montevideo Convention, 1933). For present purposes, the important point is the link between defined territory and public authority. Without a territorial reference point, it becomes difficult to identify where a state’s ordinary governing competence begins and where another state’s authority must be respected.

Territory also gives jurisdiction its basic structure. Jurisdiction is the legal competence to regulate, decide, and enforce. It is not identical to sovereignty, but it operates as one of sovereignty’s main legal expressions. A state’s authority inside its own territory is broad, yet not unlimited. International law recognises domestic authority while also limiting it through treaties, immunities, human rights obligations, diplomatic law, the law of the sea, and rules protecting the independence of other states (Crawford, 2019; Shaw, 2021).

This balance is central to Subjective and Objective Territorial Jurisdiction. The distinction between conduct inside the state and result inside the state only makes sense because territory functions as a legal boundary. It identifies the area in which a state may normally claim public authority, while also marking the point at which another state’s authority becomes relevant.

1.1 Territory as legal space

In legal terms, state territory includes land territory, internal waters, the territorial sea, and the airspace above land territory and territorial waters. These are not merely physical areas. They are spaces where international law recognises the state’s ordinary authority to prescribe rules, maintain public order, operate courts, and enforce public law.

Land territory is the clearest case. A state may regulate crimes, contracts, property, taxation, public administration, public health, and civil liability within its land borders. The legal analysis becomes more complex at sea and in the air, but the basic principle remains territorial. Internal waters fall under the sovereignty of the coastal state. The territorial sea is also subject to coastal-state sovereignty, although that sovereignty is exercised under limits recognised by the law of the sea, especially the right of innocent passage (United Nations, 1982).

Airspace follows the same broad logic. The Convention on International Civil Aviation confirms that every state has complete and exclusive sovereignty over the airspace above its territory (Chicago Convention, 1944). This does not mean that international aviation is governed only by unilateral state power. Civil aviation is heavily treaty-based. Yet the treaty system itself begins with the premise that national airspace is legally connected to the territorial state.

A useful way to understand territory is to treat it as legal space rather than empty physical space. A courtroom, prison, border post, port, airport, police station, government office, registry, hospital, industrial plant, data centre, and bank branch all operate within a territorial legal order. Conduct taking place in those spaces is not neutral. It occurs under the ordinary authority of the state in which those spaces are located.

That point matters for cross-border cases. A fraud may be planned in one state and cause loss in another. Pollution may begin near a border and damage property abroad. A cyber intrusion may use infrastructure in several countries. The legal task is not simply to describe the facts. It is to identify which part of the conduct or result is territorially connected to the forum state.

This is why territorial jurisdiction cannot be reduced to a map. Geography matters, but legal character matters more. The relevant question is not only where something occurred, but which legally significant element occurred there.

1.2 Sovereignty and jurisdiction

Sovereignty and jurisdiction are closely related, but they should not be treated as synonyms. Sovereignty refers to the state’s supreme legal authority within its territory and its independence in relation to other states. Jurisdiction refers to the legal competence to prescribe rules, adjudicate disputes, and enforce decisions (Mann, 1964; Crawford, 2019).

This distinction is essential because sovereignty is broad, while jurisdiction is functional. A state may be sovereign over its territory, but each exercise of authority still takes a particular legal form. Passing a criminal statute is not the same as trying an accused person. Trying an accused person is not the same as arresting that person abroad. Each act raises a different jurisdictional question.

The Permanent Court of International Justice made the territorial structure of state authority central in the Lotus case. The Court stated that the first and foremost restriction imposed by international law upon a state is that it may not exercise its power in the territory of another state. The judgment is often associated with a permissive view of jurisdiction, but its more durable point is the territorial limit on enforcement power (Permanent Court of International Justice, 1927).

Modern doctrine is more cautious than Lotus in several areas, especially where treaty regimes have refined jurisdictional rules. Even so, the judgment remains important because it captures a basic principle. International law permits states to govern within their territory, but it does not allow one state to exercise public power inside another state as if borders had no legal effect.

Jurisdiction, then, is not a single block of power. It must be broken down into prescription, adjudication, and enforcement. That division prevents confusion. A state may have authority to apply its criminal law to a result occurring within its territory, but that does not allow its police officers to enter another state to arrest the suspect. A court may hear a case with a strong territorial link, but it may still face immunity rules or evidentiary limits. A legislature may regulate conduct connected to the territory, but practical enforcement may require cooperation.

The distinction between sovereignty and jurisdiction also protects legal certainty. Persons, companies, and public authorities need to know which legal order governs conduct, where proceedings may be brought, and which state may use coercive power. Territoriality supplies an initial answer, but only careful jurisdictional analysis can solve difficult cross-border cases.

1.3 Territorial limits

Territorial authority has an internal and an external dimension. Internally, it supports the state’s competence over persons, property, conduct, and events within its territory. Externally, it restrains other states. The same principle that allows State A to govern inside its borders prevents State B from enforcing its own public authority there without consent or another recognised basis.

This is where territorial jurisdiction protects sovereign equality. States are formally equal under international law, even though they differ greatly in power, wealth, military capacity, and political influence. Territorial limits are one way that legal equality is preserved. If one state could freely conduct arrests, searches, inspections, or seizures inside another state, territorial sovereignty would lose much of its practical meaning.

The rule is especially strict for enforcement. A state may not normally send police officers, investigators, prosecutors, tax officials, military personnel, or administrative agents into another state to perform official acts without permission. Consent may be given through treaties, mutual legal assistance, extradition arrangements, joint investigation mechanisms, diplomatic channels, or case-specific authorisation. Without such a basis, foreign enforcement risks violating international law (Crawford, 2019; Ryngaert, 2015).

The limit is not a technicality. It shapes real legal outcomes. A state may believe that a suspect abroad committed a crime affecting its territory. It may have strong evidence. It may have a valid domestic arrest warrant. None of that alone gives it authority to conduct an arrest in another state. The proper route is extradition, deportation where lawful, mutual legal assistance, or another recognised form of cooperation.

Digital evidence has made this issue harder, not obsolete. A state may investigate a cybercrime affecting victims in its territory, yet relevant data may be stored on servers abroad or controlled by a foreign service provider. The fact that the forum state has a territorial connection to the offence does not automatically settle the enforcement question. Accessing data located abroad, compelling production outside the forum, or bypassing the territorial state may raise sovereignty concerns (Maillart, 2018).

Territorial limits also interact with immunities. A foreign diplomat, state official, foreign state, warship, or international organisation may be physically present within the territory but protected against certain forms of adjudication or enforcement. The territorial link exists, but another international rule restricts what the forum state may do. This confirms that territoriality is powerful, but not absolute.

A serious analysis of territorial jurisdiction must keep these limits visible. Otherwise, territoriality can be misused as a shortcut. The correct question is not merely whether a case has a connection to the forum state. The question is which territorial element exists, what kind of jurisdiction is being exercised, and whether international law restricts that exercise.

2. Forms of territorial jurisdiction

Territorial authority operates through different legal functions. The most important are prescriptive, adjudicative, and enforcement jurisdiction. These categories are not academic decoration. They determine what a state may lawfully do at each stage of a legal process.

A state may prescribe rules for conduct or results connected to its territory. Its courts may hear disputes or criminal cases with a sufficient territorial link. Its authorities may enforce the law through coercive acts inside the territory. Problems arise when these functions are blurred. A strong basis for legislation does not automatically justify enforcement abroad. A valid court judgment does not by itself authorise seizure of assets located in another state. A domestic investigation does not erase the sovereignty of the state where evidence is found.

Subjective and Objective Territorial Jurisdiction depend on this distinction. The conduct-result analysis mainly concerns the territorial basis for applying the law and hearing cases. Enforcement raises a separate question. That separation is especially important in transnational crime, corporate regulation, cybercrime, environmental harm, and maritime incidents.

2.1 Prescriptive jurisdiction

Prescriptive jurisdiction is the authority to make laws applicable to persons, conduct, property, or events. Within its territory, a state has broad competence to prescribe rules for criminal law, civil liability, administrative regulation, taxation, public health, financial supervision, environmental protection, and public order.

Subjective territoriality gives a strong basis for prescription because the relevant conduct occurs inside the forum state. If a person makes a corrupt payment, issues fraudulent instructions, uploads unlawful material, or commits violence within the state, the state has a direct territorial basis for applying its law. The actor is operating inside the legal space of that state.

Objective territoriality gives a different basis. Here, the conduct may occur abroad, but a legally relevant result occurs inside the forum. If a person fires a weapon across a border and causes death in another state, the state where the death occurs may claim authority because the prohibited result took place there. The same structure may appear in fraud, pollution, cyber damage, and other cross-border wrongs.

The key is legal relevance. Prescriptive jurisdiction should not be based on vague effects or broad political concern. A territorial result must be connected to the rule being applied. If the law requires injury, death, loss, damage, entry, contamination, or system impairment, the place where that result occurs has genuine legal significance. If the alleged effect is remote or merely reputational, the territorial basis becomes weaker.

This is why objective territoriality must be handled with discipline. It is not a licence for unlimited regulation of foreign conduct. It is a basis for applying the law when a constituent element of the wrong occurs inside the forum state. That approach preserves the territorial logic of jurisdiction while allowing law to address cross-border harm.

2.2 Adjudicative jurisdiction

Adjudicative jurisdiction is the authority of courts or tribunals to hear and decide cases. In domestic systems, this includes criminal trials, civil claims, administrative appeals, constitutional review, and regulatory proceedings. In public international law, the key concern is whether the court’s exercise of authority rests on a sufficient territorial or legal connection.

A territorial link may support adjudication where conduct occurred in the forum, where the result occurred there, or where the case concerns property, persons, or legal duties located within the territory. Criminal courts often rely on the place of commission. Civil courts may rely on the place of harm, the place of performance, the location of property, the defendant's presence, or other connecting factors recognised by domestic law and limited by international obligations.

Adjudication also raises fairness concerns. A court may have a territorial connection, but the proceedings must still respect due process. The accused or defendant must receive proper notice. Evidence must be handled lawfully. The court must respect applicable immunities. In criminal cases, legality is central: the person must not be punished under a law that was not applicable, accessible, and sufficiently clear at the relevant time.

The conduct-result distinction helps courts avoid artificial reasoning. If the forum state is the place of conduct, the court should say so. If it is the place of result, the analysis should identify the result and explain why it is legally relevant. This avoids the lazy formula that a case is “connected” to the territory without specifying the source of that connection.

Adjudicative jurisdiction may also overlap. A single cross-border event may be heard in more than one state. State A may be the place of conduct. State B may be the place of result. State C may hold the accused or key assets. International law often permits overlap, but overlap creates practical problems: parallel proceedings, inconsistent judgments, extradition disputes, and risks of double prosecution.

These problems do not destroy territorial jurisdiction. They show why courts and prosecutors need restraint, coordination, and precise reasoning. A serious territorial analysis should identify the forum’s legal connection and explain why that forum is suitable for adjudication.

2.3 Enforcement jurisdiction

Enforcement jurisdiction is the authority to give practical effect to the law through coercive or official acts. It includes arrest, detention, search, seizure, inspection, compulsory questioning, evidence gathering, asset freezing, execution of judgments, deportation measures, and other acts performed by public authorities.

This is the most territorially restricted form of jurisdiction. A state may normally enforce its law inside its own territory. It may not normally enforce its law inside another state. That rule protects sovereignty more directly than the rules on prescription and adjudication, because enforcement involves the physical or legal exercise of public power.

The difference can be seen in a simple example. State A may criminalise conduct that causes a result within its territory. Its courts may issue an arrest warrant. Yet if the suspect is in State B, officers from State A cannot simply cross the border and arrest the person. They must seek cooperation through extradition, mutual legal assistance, police cooperation, or another lawful channel.

The same logic applies to evidence. If documents, devices, witnesses, servers, bank records, or corporate files are located abroad, the forum state must consider the enforcement limits imposed by international law. It may request assistance. It may rely on treaties. It may use domestic orders directed at persons within its own territory where lawful. But it cannot ignore the territorial authority of the state where the evidence is located.

Cyber investigations expose the pressure on this rule. Data may be accessible from the forum state but stored elsewhere. A service provider may operate in several countries. The suspect may route activity through compromised devices. These facts make enforcement more urgent, but urgency does not erase territorial limits. The legal question remains whether the investigative act is being performed within the forum’s authority or inside another state’s legal space (Maillart, 2018).

Enforcement limits also show why territorial jurisdiction must be analysed in layers. The state may have a valid territorial basis to prescribe law. Its courts may have a plausible basis to hear the case. Yet coercive action abroad still needs consent, treaty authority, or another recognised legal ground. Without that separation, territorial jurisdiction becomes overstated and legally unsafe.

For this reason, enforcement jurisdiction is the point at which territoriality is most closely tied to sovereign equality. It is where international law draws the clearest line between applying law to a cross-border event and projecting public power into another state.

3. Subjective and Objective Territorial Jurisdiction

Subjective and Objective Territorial Jurisdiction is the doctrinal centre of territorial authority. The distinction separates two situations that are often confused. In the first, the state relies on conduct that occurred within its territory. In the second, the state relies on a legally relevant result that occurred within its territory, even though the conduct was performed elsewhere.

The distinction matters because a transboundary case rarely has only one legal location. A fraudulent message may be sent in one country and cause loss in another. A weapon may be fired across a border. A company may approve a payment in one state that distorts a public tender in another. A cyber operation may involve several technical locations, while the damage appears on the victim’s system inside the forum.

Territorial jurisdiction is strongest when the territorial element forms part of the offence or legal wrong. It is weaker when the forum state relies only on indirect effects, political concern, or a broad claim of regulatory interest. The discipline of the doctrine lies in asking a precise question: what legally significant element occurred inside the forum state?

The answer may point to conduct, result, or both. If the act occurred inside the state, the claim is based on subjective territoriality. If the consequence occurred there, the claim is objective territoriality. If both occurred there, the territorial claim is usually straightforward. If neither occurred there, the case should not be forced into territorial jurisdiction merely because the forum state has an interest in the matter.

The classic Lotus case remains important because it accepted a broad connection between a state and an offence with cross-border elements. Yet Lotus should not be read as a licence for uncontrolled jurisdiction. Its lasting value is narrower: international law treats territorial connection as a primary basis of jurisdiction, while foreign enforcement remains subject to strict limits (Permanent Court of International Justice, 1927; Crawford, 2019).

Modern doctrine is more careful. It recognises that a state may have a territorial basis when an element of the wrong occurs within its territory, but it also requires attention to legality, foreseeability, sovereign equality, and treaty limits. This is especially important where conduct and harm are separated by borders, corporate structures, digital systems, or maritime space (Mann, 1964; Ryngaert, 2015).

3.1 The conduct-result distinction

The conduct-result distinction is the key to the whole subject. Conduct refers to the act, omission, instruction, transaction, decision, communication, movement, or operational step that forms part of the offence or wrong. Result refers to the legally relevant consequence required by the applicable rule.

Conduct is not every background fact. It is the behaviour that the law treats as part of the wrongful act. In criminal law, this may include firing a shot, transmitting malicious code, making a corrupt payment, issuing false instructions, entering a protected system, or failing to perform a required duty. In civil or regulatory matters, it may include a corporate decision, a transaction, a disclosure, a transfer of funds, or a breach of a territorial obligation.

The result is also narrower than the ordinary consequence. A result is legally relevant only when the rule being applied treats that consequence as part of the wrong. Death, injury, property damage, financial loss, pollution, unlawful entry, system impairment, or deprivation of liberty may qualify. Mere reputational discomfort, diplomatic irritation, or a remote economic ripple should not be treated as a territorial result.

This distinction controls the classification of jurisdiction. If the relevant act takes place inside the forum state, the forum relies on subjective territoriality. If the relevant consequence occurs inside the forum state, the forum relies on objective territoriality. Some offences contain both elements and may give more than one state a legitimate claim.

A simple example shows the point. If a person in State A fires across the border and kills someone in State B, State A is the place of conduct, and State B is the place of result. Both states may have a territorial claim, but the legal basis is not the same. State A relies on the act. State B relies on death.

The same logic applies to fraud. The deception may be sent abroad, the victim may rely on it in the forum state, and the financial loss may occur through a local bank account. The analysis cannot stop at saying that the fraud was “international”. It must identify which legal element occurred in each territory.

3.2 The ubiquity approach

The ubiquity approach allows territorial jurisdiction where at least one constituent element of the offence or wrong occurs within the forum state. It reflects the reality that many wrongs are not confined to one country. Conduct and result may be divided, but each may still be legally significant.

This approach avoids an overly rigid rule that only the state of conduct may act or only the state of result may act. If a cross-border offence has elements in two states, both may have a territorial basis. The state of conduct may regulate the behaviour performed inside its territory. The state of result may regulate the harm or legal consequence suffered within its territory.

The approach is practical, but it must remain bounded. Not every factual connection is a constituent element. A preparatory conversation, a bank transfer, a server route, or a business presence may matter only if the applicable legal rule gives that fact legal significance. The analysis begins with the rule, not with a list of every country touched by the facts.

The risk is overextension. If every technical, economic, or informational contact is treated as enough, territorial jurisdiction loses its limiting function. The better view is that the territorial element must be direct, substantial, and legally relevant. This preserves the usefulness of the ubiquity approach without turning it into a general authorisation for extraterritorial regulation (Mann, 1964; Ryngaert, 2015).

Cybercrime shows the importance of that restraint. A cyber operation may pass through infrastructure located in several states, but routing alone may not identify the place of conduct or result. The relevant question is more specific: where did the offender act, where was the protected system affected, and which element of the offence occurred in the forum? Maillart’s analysis is especially useful here because it shows the limits of locating conduct in digital environments where technical indicators can be misleading (Maillart, 2018).

The ubiquity approach does not remove the difference between prescription and enforcement. A state may claim territorial jurisdiction because an element of the wrong occurred inside its territory. It still may not conduct coercive investigative acts inside another state without consent, treaty authority, or another recognised legal basis. That separation is essential to avoid confusing legal competence with practical power.

3.3 Concurrent territorial claims

A single event may give more than one state a territorial claim. This is not exceptional. It is a normal feature of cross-border conduct. The state where the act occurred may claim jurisdiction on a conduct-based ground. The state where the harm occurred may claim jurisdiction on a result-based ground.

Concurrent claims are easy to see in cross-border violence. If the offender acts in one state and the victim is injured in another, each state has a different territorial connection. The same pattern appears in fraud, cybercrime, environmental harm, trafficking, corruption, and financial misconduct. The legal problem is not the existence of overlap. The problem is how to manage it without overreach or duplication.

International law does not generally impose a fixed hierarchy between the state of conduct and the state of result. In some cases, the place of conduct will be the better forum because evidence, witnesses, accused persons, and preparatory acts are located there. In other cases, the place of result will have a stronger interest because the concrete harm, victims, and public order consequences are local.

The strength of each claim depends on the quality of the territorial link. A state with a direct act inside its territory has a strong basis. A state with direct injury, death, property damage, financial loss, or system damage inside its territory also has a serious basis. A state relying only on remote economic effects has a weaker position.

Concurrent territorial claims can create parallel investigations, extradition disputes, competing prosecutions, and questions of double jeopardy. Those issues do not defeat territorial jurisdiction, but they require coordination. Mutual legal assistance, prosecutorial consultation, transfer of proceedings, extradition, and forum selection all help prevent the same facts from being handled in a fragmented or unfair way.

The better doctrinal approach is not to deny overlap, but to analyse it openly. Identify the conduct state. Identify the result state. Identify the evidence state. Identify the state where the accused is present. Then decide which claim is strongest for the particular legal purpose. This method keeps territorial jurisdiction precise and prevents vague references to “connection” from replacing legal analysis.

4. Subjective territorial jurisdiction

Subjective territorial jurisdiction is the conduct-based form of territorial jurisdiction. It applies when the legally relevant act or omission occurs within the forum state. It is the most intuitive form of territoriality because the actor is operating inside the state’s legal space.

This form has strong doctrinal foundations. A state has a direct interest in regulating behaviour performed within its territory. It may preserve public order, protect persons and property, supervise local institutions, and apply its criminal or regulatory law to acts carried out under its authority. The actor’s presence or operation in the territory also strengthens fair notice. A person acting inside a state can normally be expected to comply with that state’s law.

Subjective territoriality is not limited to simple physical acts. It can include instructions, decisions, omissions, corporate conduct, digital commands, financial transactions, and participation in a wider scheme, provided the legally relevant conduct occurred within the forum. The hard question is not whether the conduct had foreign consequences. The hard question is where the legally significant act took place.

4.1 Legal definition

Subjective territorial jurisdiction exists when the conduct forming part of the offence or legal wrong occurs within the forum state. The forum’s claim is anchored in the place of action, not in the place of harm. This makes the doctrine different from objective territoriality, which depends on the place of result.

The definition requires attention to the elements of the applicable rule. If the offence is committed by making a false statement, the relevant question is where that statement was made or transmitted. If the offence is committed by making a payment, the place of authorisation, transfer, or execution may matter. If the wrong consists of failure to perform a duty, the relevant place may be where performance was legally required.

Subjective territoriality is strongest where the actor is physically present in the forum at the moment of the act. A person who assaults another person, signs a fraudulent document, uploads prohibited material, issues unlawful instructions, or makes a corrupt payment inside the state falls within the classic model. The forum state regulates conduct performed under its territorial authority.

The doctrine also applies where the actor uses instruments or intermediaries. A person may act through a company, agent, computer system, bank, courier, or communication network. The use of an instrument does not remove territoriality. It changes the legal inquiry. The question becomes where the relevant human, corporate, or operational act occurred.

This definition must not be diluted. It is not enough that the forum state dislikes the conduct, suffers a remote effect, or later investigates the case. Subjective territoriality depends on conduct within the territory. If the conduct occurred abroad and only the result occurred inside the forum, the correct analysis is objective territoriality.

4.2 Conduct within the forum

The clearest examples involve physical conduct. A person fires a weapon inside the state. A company director approves a false filing at a local office. A public official accepts a bribe in the forum. A person sends fraudulent instructions using a device located inside the state. A suspect uploads unlawful material while physically present in the territory.

Each example contains the same legal structure. The relevant act occurs inside the forum state. The state does not need to rely on the place of harm to justify its authority, although harm may later occur elsewhere. The territorial link is the conduct itself.

This is especially important in transnational cases. A payment made inside State A may distort procurement in State B. A fraudulent email sent in State A may deceive a victim in State B. A command issued in State A may damage a system in State B. State A’s claim rests on the act performed inside its territory. State B’s claim, if any, rests on the result.

Conduct may also be corporate. A board decision, compliance failure, internal approval, accounting entry, payment instruction, or document certification may form part of the legal wrong. If that conduct occurs in the forum state, subjective territoriality may apply. The analysis should avoid treating the corporation as if it acted everywhere it has offices. The relevant question is where the legally significant decision or act occurred.

Digital conduct requires special care. If a person physically located in the forum sends malicious code, accesses a protected system, issues commands, or distributes unlawful content, the forum has a conduct-based claim. Yet technical indicators alone may mislead. IP addresses, routing paths, cloud infrastructure, and server locations do not always show where the offender acted (Maillart, 2018).

The legal analysis should focus on the act required by the offence. If the offence is unauthorised access, where did the access occur? If the offence is transmission of malware, where was the transmission initiated? If the offence is unlawful publication, where did the actor upload or make the content available? The answer will not always be easy, but the question must remain precise.

4.3 Omissions within the forum

Subjective territoriality can also apply to omissions. An omission is conduct in the legal sense when the person or entity had a duty to act and failed to perform that duty. The territorial question is where the duty had to be performed.

A company may be required to file information with a local regulator. An employer may have a duty to maintain safe conditions at a local workplace. A financial institution may have a duty to report suspicious transactions to domestic authorities. A facility operator may have a duty to prevent dangerous emissions within the territory. Failure to perform those duties may ground subjective territoriality because the required act belonged in the forum state.

Omissions are harder than positive acts because they do not have the same physical visibility. A person can point to where a document was signed or where a payment was made. It is less obvious where a failure occurred. The best approach is to connect the omission to the place of legal duty, not merely to the place where harm was later suffered.

This matters in regulatory and corporate cases. A parent company abroad may fail to supervise a subsidiary operating in the forum. A local branch may fail to report information required by domestic law. A manager may fail to stop unlawful conduct at a local facility. Each situation requires careful separation between the place of duty, the place of decision, and the place of consequence.

An omission should not be artificially located in the forum merely because the forum experienced harm. If the legal duty was imposed and performable abroad, the conduct element may be abroad. If the harm occurred inside the forum, objective territoriality may still be relevant. The two doctrines should not be blurred.

Subjective territoriality based on omission is strongest when the duty is clearly territorial: a local filing duty, a local safety duty, a local inspection duty, or a local reporting duty. It is weaker when the duty is general, diffuse, or imposed on an actor with only a remote connection to the territory.

4.4 Legal justification

The main justification for subjective territoriality is control over conduct inside the state. A legal order must be able to regulate acts performed within its territory. Without that authority, the state could not maintain public order, protect persons and property, administer justice, or ensure compliance with local law.

This justification is not merely practical. It is also linked to legitimacy. The actor who chooses to act inside a state enters that state’s legal space. The application of local law is easier to defend because the actor has a territorial connection to the legal order. This supports the principle of legality and the requirement of fair notice.

Evidence provides another justification. The place of conduct is often where witnesses, devices, documents, transaction records, surveillance material, and physical traces can be found. A state has a practical and legal interest in investigating conduct that occurred within its territory. This point has long supported territorial jurisdiction in criminal law (Akehurst, 1972–1973).

Subjective territoriality also protects public order. Even when the result occurs abroad, conduct within the forum may threaten the integrity of local institutions. A state has an interest in stopping its territory from being used as a base for fraud, corruption, cybercrime, violence, trafficking, or other unlawful activity directed elsewhere.

The justification becomes even stronger when the conduct involves local institutions. Use of domestic banks, companies, registries, professional services, communication infrastructure, or public offices creates a deeper connection with the forum. The state is not regulating distant foreign behaviour. It is regulating the use of its own legal and institutional space.

This does not mean that every local contact is enough. The local act must form part of the offence or wrong. A minor background fact should not be elevated into a territorial basis. The justification depends on the legal importance of the conduct, not merely on physical presence.

4.5 Main difficulty

The main difficulty with subjective territoriality is locating conduct in complex cases. Traditional examples assume a visible actor performing a clear act inside a defined territory. Modern legal disputes often involve corporate chains, digital infrastructure, remote instructions, automated processes, and intermediaries in several states.

Corporate conduct is a common problem. A decision may be discussed in one country, approved in another, implemented through a subsidiary elsewhere, and produce effects in a fourth state. Treating the entire chain as conduct in every connected state would stretch subjective territoriality too far. The analysis must identify the act that the legal rule treats as relevant.

Digital conduct creates an even sharper problem. A cyber operation may appear to originate in one country while the offender is elsewhere. A compromised device may be used as a relay. A server may process commands automatically. Cloud storage may divide data across several jurisdictions. In such cases, subjective territoriality cannot depend on technical location alone (Maillart, 2018).

Remote action also complicates the inquiry. A person may sit in State A and operate a device in State B. The legal system must decide whether the relevant conduct is the human command in State A, the technical operation in State B, or both. The answer depends on the offence, the facts, and the legal character of the act.

Intermediaries create another difficulty. A person may use an agent, courier, bank, platform, company, or automated system. The forum must decide whose conduct matters and where that conduct occurred. Attribution rules may be needed, but attribution does not replace the territorial inquiry.

The danger is analytical laziness. Courts and writers may say that a case is territorial because it has some connection to the forum. That is not enough. Subjective territorial jurisdiction requires conduct inside the forum. The correct question is always narrower: which legally relevant act occurred there?

A careful approach preserves the value of subjective territoriality. It keeps the doctrine tied to conduct, protects legal certainty, and prevents the state of conduct from being confused with the state of consequence.

5. Objective territorial jurisdiction

Objective territorial jurisdiction is the result-based form of territorial jurisdiction. It applies when conduct performed outside the forum state produces a legally relevant consequence inside that state. The territorial link is not the foreign act itself, but the result that materialises within the forum’s legal space.

This form of jurisdiction is necessary because many wrongs do not stop at the border of the state where the actor acted. A shot may be fired abroad and kill a person inside the forum. A fraudulent instruction may be sent abroad and empty a bank account in the forum. A polluting discharge may originate outside the state and damage land, water, or public health inside it. In each example, the forum state is not relying on conduct within its territory. It relies on harm or legal consequences within its territory.

Objective territoriality is powerful, but it requires discipline. It should not be treated as a general right to regulate foreign conduct merely because the forum state is affected in some broad way. The result must have legal significance under the rule being applied. If the result is remote, incidental, speculative, or only politically inconvenient, the claim becomes weak.

The doctrinal task is to identify the territorial result with precision. The analysis should ask three questions. What result does the legal rule require? Where did that result occur? Is the result direct, substantial, and foreseeable enough to justify the forum’s claim? This method keeps objective territoriality within the limits of territorial jurisdiction rather than allowing it to become an open-ended theory of extraterritorial power.

5.1 Legal definition

Objective territorial jurisdiction exists when conduct abroad produces a legally relevant result inside the forum state. The forum’s authority is grounded in the place of consequence, not in the place of action. This is the essential difference between objective and subjective territoriality.

The definition depends on the structure of the applicable legal rule. If the wrong requires death, injury, loss, damage, entry, contamination, system impairment, or another consequence, the place where that consequence occurs may ground jurisdiction. If the rule does not require such a result, objective territoriality becomes harder to justify.

This point matters because the word “result” can be misused. A result is not every consequence that follows in fact. It is the consequence that the law treats as part of the offence, civil wrong, or regulatory breach. A market reaction, diplomatic objection, reputational harm, or general political concern may be real, but it is not automatically a territorial result for jurisdictional purposes.

The classic example is cross-border violence. If a person standing in State A fires across the border and kills someone in State B, the death in State B is not a remote effect. It is the prohibited result. State B has a territorial claim because an element of the offence occurred within its territory.

The same logic applies to property damage, pollution, and financial loss. If the applicable law treats damage or loss as part of the wrong, the place where that damage or loss occurs has legal significance. Objective territoriality does not erase the relevance of the state of conduct, but it gives the state of result its own territorial basis (Mann, 1964; Ryngaert, 2015).

5.2 Result within the forum

A result within the forum may take many forms. In criminal law, it may be death, bodily injury, unlawful entry, deprivation of liberty, or property damage. In financial misconduct, it may be loss of funds, manipulation of a local account, or harm to a protected market. In environmental law, it may be contamination of water, air, soil, crops, fisheries, or public health within the territory.

The key is not the category of harm, but its legal character. Injury matters because the law protects bodily integrity. Death matters because homicide law protects life. Financial loss matters when the offence or civil wrong requires deprivation, fraud, or property damage. Pollution matters when the rule protects environmental quality, public health, or territorial resources.

Cyber cases illustrate the same point in a modern form. If malicious code is launched abroad but damages a computer system inside the forum, the system impairment may be the territorial result. If a victim’s account inside the forum is accessed and funds are removed, the loss may create a territorial result. If unlawful content is merely accessible in the forum, the analysis is more difficult. Accessibility alone should not always be equated with territorial harm.

The forum must identify the result, not merely assert that the case had an effect there. This is especially important in economic and digital matters, where almost any act may have some downstream consequence in another state. Objective territoriality needs a concrete legal anchor.

A useful test is to ask if the case would remain legally complete without the alleged result in the forum. If the result is an element of the offence or wrong, the forum’s claim is stronger. If the forum’s connection is only a background consequence, the claim requires greater caution.

5.3 Direct result

The result must be direct enough to justify jurisdiction. Directness does not require that no other facts intervene, but it does require a close legal and factual connection between the foreign conduct and the territorial consequence.

In the cross-border shooting example, the connection is direct. The act abroad causes death or injury inside the forum. In a pollution case, the connection may also be direct if contamination flows across a border and damages land or water in the neighbouring state. In a fraud case, the connection may be direct if the false instruction causes a transfer of funds from an account in the forum.

The analysis becomes weaker when the chain of consequences is long. A foreign act may affect a company abroad, which then affects investors elsewhere, which then causes economic pressure in the forum. Such a chain may be factually real, but it may not be sufficiently direct for objective territoriality. The longer the chain, the greater the risk that territorial jurisdiction is being stretched beyond its proper function.

Directness also protects legal certainty. Persons and companies should not face the law of every state that experiences an indirect consequence of their conduct. International law accepts overlapping jurisdiction in transboundary cases, but it does not require every affected state to be treated as a territorial forum.

This does not mean that complex causation defeats jurisdiction. Some wrongs naturally involve several steps. Fraud, market abuse, environmental damage, and cyber operations often move through intermediaries. The point is narrower. The territorial result must remain connected to the legal wrong in a way that is not artificial or speculative.

5.4 Substantial connection

Objective territoriality also requires a substantial connection between the result and the forum state. A minimal, accidental, or manufactured connection should not be enough. The more serious and concrete the local result, the stronger the claim.

Substantiality is not only about the amount of damage. It also concerns the quality of the legal connection. A single death or serious injury inside the forum is substantial because life and bodily integrity are core protected interests. A small but deliberate transfer of criminal proceeds through a local account may be substantial if the financial system is used as part of the offence. Environmental damage may be substantial because it affects territorial resources and public health.

The concept is useful because territoriality can be manipulated. A party may try to create a minor local connection to bring a dispute before a preferred court. A regulator may rely on a thin local contact to extend domestic law into foreign affairs. A prosecutor may point to a technical data route or an incidental financial movement as if it were the centre of the wrong. Substantiality helps filter those weak claims.

A substantial connection also reduces conflict with other states. The stronger the local result, the easier it is to justify the forum’s involvement. The weaker the local result, the more the forum appears to be regulating conduct that belongs mainly to another state’s legal order.

Objective territoriality must keep its territorial character. It is not enough that the forum has an interest. It must have a legally meaningful result within its territory.

5.5 Foreseeability

Foreseeability strengthens objective territorial jurisdiction. If the actor could reasonably anticipate that the result would occur in the forum state, the application of that state’s law is easier to justify. This is especially important for legality and fair notice.

In some cases, foreseeability is obvious. A person firing across a border can foresee injury or death in the neighbouring state. A person sending fraudulent instructions to a victim in another state can foresee financial loss there. A company discharging harmful substances near a frontier may foresee damage across the border.

In other cases, foreseeability is more contested. A digital act may affect systems in countries the actor did not know about. A financial transaction may move through accounts chosen by intermediaries. Online content may be accessible globally even though the publisher targeted only one audience. Treating all such consequences as foreseeable would create excessive jurisdictional reach.

Foreseeability should be assessed with legal realism. The question is not whether some consequence somewhere was imaginable. The question is whether the relevant territorial result was reasonably predictable in light of the actor’s conduct, target, technical choices, commercial structure, or known risks.

Foreseeability also helps separate objective territoriality from pure effects-based reasoning. A foreseeable result that forms part of the legal wrong has a stronger territorial character. An unforeseeable or remote effect has a weaker effect.

The requirement is not always stated as a rigid rule in international law, but it is an important limiting principle. It gives objective territoriality a fairer and more predictable structure, especially in cross-border criminal, economic, environmental, and cyber cases (Akehurst, 1972–1973; Ryngaert, 2015).

6. Territoriality and the effects doctrine

Objective territoriality and the effects doctrine are related, but they are not identical. Objective territoriality rests on a legally relevant result inside the forum. The effects doctrine may reach further, especially where a state relies on economic, regulatory, or market effects produced by foreign conduct.

The distinction matters because both doctrines can look similar in practice. A foreign cartel may affect prices inside the forum. A foreign securities fraud may affect investors in the forum. A cyber operation may disrupt local services. A foreign corporate decision may create losses in a domestic market. Each case involves an effect inside the state, but not every effect is a territorial result in the strict sense.

Objective territoriality is safest when the result inside the forum is an element of the wrong. The effects doctrine becomes more controversial when the forum claims jurisdiction based on broader consequences that are not part of the legal definition of the offence or wrong. That difference is not cosmetic. It determines how far territorial jurisdiction may be extended without becoming disguised extraterritoriality.

Public international law does not forbid all regulation of foreign conduct with domestic effects. States frequently regulate cross-border competition, securities, sanctions, data protection, corruption, and financial activity. The difficulty is not the existence of regulation. The difficulty is the legal basis used to justify it and the limits placed on it.

6.1 Result as a legal element

Objective territoriality is strongest when the result inside the forum is a legal element. This means that the offence or wrong is not complete, or not fully established, without that result. The forum is not inventing a connection. It identifies where part of the legal wrong occurred.

A homicide requires death. A fraud often requires loss or deprivation. A pollution offence may require contamination or environmental damage. A cyber damage offence may require impairment of a system, data, or service. If these results occur inside the forum, the territorial claim has a clear doctrinal foundation.

This approach has two advantages. First, it gives the forum state a legitimate reason to act. The harm is not abstract. It is part of the wrong. Second, it creates a limiting principle. The forum must identify a specific result recognised by the applicable legal rule.

The limiting principle is crucial. Without it, objective territoriality could absorb any domestic effect. A state could claim jurisdiction over foreign conduct because it influenced prices, public opinion, investor confidence, political debate, or diplomatic relations. Some of those effects may matter under specific legal regimes, but they should not automatically be treated as territorial results.

The legal-element approach also improves reasoning in complex cases. Courts and lawyers must begin with the offence or claim. They must identify its elements. Then they must locate those elements. This method is more precise than asking broadly whether the forum was affected.

6.2 Effects beyond the legal element

The effects doctrine becomes more controversial when it reaches consequences beyond the legal elements of the wrong. This is common in economic regulation. A foreign agreement, merger, payment, data practice, or commercial decision may produce consequences in a domestic market even though the main conduct occurred abroad.

Competition law is the classic field. A cartel formed abroad may raise prices inside the forum. Securities regulation provides another example. Foreign misstatements may affect investors or markets in another state. Sanctions and export controls may also rely on financial or commercial links that pass through the forum. These situations show why states want to regulate foreign conduct with local effects.

The problem is that economic effects can be broad and difficult to contain. Markets are interconnected. A decision made in one state may influence prices, investment, employment, supply chains, or consumer behaviour in many others. If every economic consequence is treated as territorial, the doctrine loses its boundary.

For that reason, effects-based jurisdiction usually needs stronger limiting factors. The effect should be substantial, direct, and foreseeable. In some fields, it should also be intended or at least clearly targeted. The more indirect the effect, the less persuasive the territorial claim becomes.

The effects doctrine may be accepted in some domestic and regional systems, but its status in general international law is more contested than ordinary territoriality. That is why it should not be presented as if it were simply another name for objective territorial jurisdiction. The two overlap, but they do not carry the same level of doctrinal security (Mann, 1964; Ryngaert, 2015).

6.3 The risk of overreach

The risk of overreach is the main reason objective territoriality and the effects doctrine must be kept separate. Territorial jurisdiction is legitimate because it is tied to territory. If every indirect consequence is treated as territorial, the doctrine stops limiting state power.

Overreach creates several problems. It undermines legal certainty because individuals and companies cannot predict which states may claim authority. It creates conflicts between legal systems because several states may regulate the same foreign conduct under different standards. It may also weaken sovereign equality if powerful states use broad effects claims to project regulatory authority into weaker states.

The problem is not only theoretical. In a global economy, almost every major transaction has external consequences. In digital networks, content, data, malware, payments, and communications can cross borders instantly. In environmental matters, harm may spread through air, water, soil, or climate systems. These facts make territorial analysis more important, not less.

A disciplined approach should ask whether the alleged territorial result is direct, substantial, foreseeable, and legally relevant. These criteria do not eliminate all hard cases. They do, however, force the forum state to justify its claim through law rather than policy preference.

The same discipline protects the credibility of territorial jurisdiction. Subjective territoriality remains tied to conduct. Objective territoriality remains tied to result. The effects doctrine, when invoked, must be treated with caution and supported by clear limits. Without that structure, territoriality becomes too elastic to perform its central function in international law.

7. Borderline cases

The distinction between conduct and result becomes most useful when the facts are not confined to one state. Borderline cases test the doctrine because they force lawyers to identify the exact territorial element relied upon by the forum. A vague statement that the dispute is “connected” to the territory is not enough. The legal analysis must identify the conduct, the result, and the form of authority being exercised.

The following examples do not create separate fields of law. They are used only to test the structure of territoriality. Each one asks the same question: is the forum state relying on an act within its territory, a result within its territory, or something weaker than either?

7.1 Cross-border violence

Cross-border violence is the clearest example of the division between subjective and objective territoriality. A person stands in State A, fires a weapon across the border, and injures someone in State B. State A is the place of conduct. State B is the place of result. Both states may have a territorial claim, but their claims rest on different elements of the offence.

State A can rely on the act performed within its territory. The offender used State A’s legal space as the place of action. State A has an interest in preventing its territory from being used as a base for violence, even if the victim is outside its borders. This is the conduct-based logic of subjective territoriality.

State B can rely on the injury within its territory. The victim, the physical harm, the public order consequence, and the protected legal interest are located there. This is not a remote effect. The injury is part of the offence. State B’s claim rests on objective territoriality because the legally relevant result occurred inside its territory (Mann, 1964; Ryngaert, 2015).

The same structure applies to other physical acts across a frontier. An explosive device sent across a border, a drone operated from one state that strikes in another, or a projectile launched across a territorial line all raise the same basic issue. One state may be the place of action. Another may be the place of harm.

The strength of the result-state claim depends on the legal character of the harm. Death, bodily injury, property destruction, and unlawful entry are concrete territorial results. They are not abstract national interests. They are protected interests affected within the forum’s territory. That is why objective territoriality is comparatively strong in these cases.

Enforcement remains separate. State B may have a territorial basis to prescribe and adjudicate because the injury occurred there. It cannot send officers into State A to arrest the offender without consent, extradition, or another recognised basis. The case illustrates the whole structure of the doctrine: territorial jurisdiction may overlap, but coercive action abroad remains restricted (Permanent Court of International Justice, 1927; Crawford, 2019).

7.2 Transnational fraud

Fraud often separates the relevant elements across several states. The false representation may be written in State A, sent through a server in State B, received by the victim in State C, and cause payment or financial loss in State D. The legal analysis must resist the temptation to call the entire scheme “territorial” in every country touched by the facts.

The first task is to identify the legal elements of the fraud. Some legal systems emphasise deception. Others require reliance, transfer of property, financial loss, dishonest gain, or damage to a protected economic interest. The territorial analysis depends on those elements. The place of deception matters if the false statement is the relevant act. The place of reliance matters if the victim’s decision is legally central. The place of loss matters if deprivation or damage is required.

If the offender sends the false instruction while physically present in State A, State A has a conduct-based claim. The fraudulent act was performed there. If the victim relies on the deception in State C, that may give State C a result-based or event-based connection, depending on the structure of the offence. If the victim’s funds are removed from a bank account in State D, State D may claim that the financial loss occurred within its territory.

This example shows why territoriality is not always a single-location inquiry. A fraud can be built from several legally significant steps. Some steps may be acts. Others may be consequences. Several states may have plausible claims, but each must identify its own territorial element.

A weak claim appears when a state relies only on a minor technical contact. A payment briefly routed through a correspondent bank, a server that merely relayed an email, or a corporate affiliate with no role in the fraudulent act may not be enough. Such links may matter for evidence or financial tracing, but they should not automatically establish the place of the wrong.

Transnational fraud also shows the need to separate jurisdiction from convenience. The state with the strongest territorial link may not always be the easiest forum. The accused may be elsewhere. Evidence may be held by banks or platforms in another state. Victims may be dispersed. These problems concern investigation, cooperation, extradition, and forum choice. They do not change the basic conduct-result analysis.

The sound method is simple. Locate the false statement, the reliance, the transfer, and the loss. Then ask which of those elements the applicable legal rule treats as essential. The forum with an essential element inside its territory has the stronger territorial claim.

7.3 Cyber conduct

Cyber conduct tests subjective territoriality because the location of the act may be difficult to identify. Traditional territorial analysis assumes that a person acts in a visible place. Digital activity often hides or fragments that place. A user may operate in one state, use a virtual private network in another, route traffic through compromised devices elsewhere, store data in several jurisdictions, and harm a system in a different country.

The first distinction is between user location and technical route. User location concerns where the human actor or relevant organisation performed the command, upload, access, transmission, or decision. Technical route concerns the infrastructure through which data is moved. The route may be important for investigation, but it does not always identify the legally relevant act.

Server location is also uncertain. A server may store data, host content, process commands, authenticate access, or merely pass traffic. Treating server location as automatically decisive would be too crude. The question is what legal role the server played in the offence or wrong. A storage server containing stolen data may matter differently from a relay server that only transmitted packets for a fraction of a second.

Data location creates another layer. Data may be stored in one state, accessed from another, controlled by a provider incorporated in a third, and used to harm victims in a fourth. A state may have a strong interest in data affecting its residents or institutions, but interest alone is not the same as territorial jurisdiction. The legal issue remains the location of conduct or a legally relevant result.

Victim-side harm is often clearer. If malicious code launched abroad damages systems in the forum, deletes data there, disables local services, or removes funds from accounts located there, the forum may have an objective territorial claim. The harm is inside the territory. The strength of the claim depends on whether that harm is an element of the offence or wrong.

Maillart’s analysis is important because it shows the limits of subjective territoriality in cybercrime. If the offence is defined as conduct, such as unauthorised access, the state must locate the act of access. That may be technically and legally difficult when origin indicators are manipulated, or infrastructure is distributed (Maillart, 2018).

Cyber cases also expose the enforcement problem. A state may have a territorial basis because the victim system was damaged within its territory. Yet the evidence may be stored abroad. Accessing that evidence, compelling a foreign provider, or entering a foreign system can raise enforcement concerns. Territorial harm does not by itself authorise coercive action in another state.

A careful cyber analysis should separate four questions: where the actor acted, where the system was affected, where the data is located, and where enforcement measures would occur. Blurring those questions is one of the fastest ways to turn territorial analysis into legal overreach.

7.4 Transboundary harm

Transboundary harm includes pollution, industrial accidents, hazardous activities, and other physical processes that begin in one state and cause damage in another. These cases illustrate the relationship between conduct in the state of origin and result in the affected state.

The state of origin may have a conduct-based connection. The industrial activity, discharge, failure of safety controls, negligent operation, or regulatory omission may occur there. That state has the authority to regulate the facility, operator, licence, inspection regime, and local conduct. If a criminal or civil rule attaches to the harmful activity itself, subjective territoriality may support jurisdiction.

The affected state may have a result-based connection. Pollution may damage rivers, soil, crops, fisheries, air quality, public health, or private property within its territory. If local damage is a required element of the claim or offence, the affected state has a plausible objective territorial basis. The result is not abstract. It is physical harm in the forum.

The Trail Smelter arbitration is often cited for the principle that a state must not knowingly allow its territory to be used in a way that causes serious injury in another state. It is not a simple jurisdiction case, but it remains useful for understanding the legal importance of transboundary harm and territorial consequences (Trail Smelter Arbitration, 1941; Shaw, 2021).

Causation is decisive in this field. Pollution and industrial harm may move through air, water, soil, weather systems, supply chains, or human exposure. A state claiming objective territoriality must show more than anxiety about possible damage. It must connect the foreign activity to a concrete result within its territory.

Substantiality also matters. Minor, uncertain, or scientifically speculative effects are weaker grounds for jurisdiction. Serious contamination, measurable property damage, public health injury, or damage to territorial resources provides a stronger territorial basis. The more concrete the harm, the more persuasive the result-state claim.

Transboundary harm also demonstrates why territorial jurisdiction and state responsibility should not be confused. A state may regulate a harmful result within its territory. Separately, the state of origin may incur international responsibility if its conduct breaches an international obligation. The two analyses may overlap factually, but they are not the same legal question.

8. Limits of territorial jurisdiction

Territorial jurisdiction is powerful because it rests on sovereignty over a defined legal space. Its strength also explains its limits. A state may regulate conduct or results connected to its territory, but it may not treat that connection as authority to project public power wherever it wishes.

The main limits concern enforcement abroad, immunities, treaty rules, and competing proceedings. These limits do not negate territorial jurisdiction. They define its legal boundaries. They also prevent territoriality from becoming a broad excuse for extraterritorial control.

8.1 No foreign enforcement

The clearest limit is the prohibition on enforcement inside another state without consent or another legal basis. Prescriptive jurisdiction and adjudicative jurisdiction do not automatically carry enforcement authority abroad. This is one of the basic rules of sovereign equality.

A state may enact a law applying to conduct or result connected to its territory. Its courts may issue warrants, orders, judgments, or penalties. Yet those measures cannot be executed in another state through unilateral official action. Arrests, searches, seizures, inspections, interrogations, compulsory production, and evidence gathering abroad normally require cooperation.

Lotus is often remembered for its permissive language on jurisdiction, but the judgment also stated a core restriction: a state may not exercise its power in the territory of another state. That principle remains central. Modern international law may debate the scope of prescriptive jurisdiction, but enforcement jurisdiction is much more tightly territorial (Permanent Court of International Justice, 1927; Crawford, 2019).

The practical route is cooperation. Extradition may be needed to secure the presence of a suspect. Mutual legal assistance may be needed for documents, testimony, searches, bank records, or digital evidence. Joint investigation arrangements may allow coordinated action. Diplomatic consent may authorise specific measures. Without such a basis, unilateral enforcement abroad risks breaching international law.

The rule applies even where the forum has suffered serious harm. A state whose citizens were injured, whose bank accounts were emptied, or whose systems were damaged may have a strong territorial claim. That does not allow its officers to operate in another state as if they were at home.

Cyber investigations are the hardest modern example. Data may be reachable from inside the forum, but legally or physically located abroad. A provider may have a local office, while the relevant server sits elsewhere. Remote access may look less intrusive than physical entry, but it can still affect another state’s sovereign interests. The enforcement question must be analysed separately from the territorial basis of the offence (Maillart, 2018).

8.2 Immunities

Immunity may restrict adjudication or enforcement even where a territorial link exists. This is an important correction to any simple theory of territorial authority. Presence inside the territory does not always mean the forum may exercise the full range of public power.

Diplomatic agents are the clearest example. A diplomat may commit an act inside the receiving state, yet diplomatic immunity may prevent criminal jurisdiction and certain enforcement measures. The receiving state may declare the diplomat persona non grata, request a waiver, or pursue diplomatic remedies, but it cannot ignore the immunity regime (Vienna Convention on Diplomatic Relations, 1961).

State immunity raises a different problem. A foreign state or state entity may be connected to conduct or property in the forum, but immunity may bar proceedings or enforcement unless an exception applies under the relevant domestic and international rules. Modern practice often distinguishes sovereign acts from commercial acts, but enforcement against state property remains especially sensitive (United Nations, 2004; Crawford, 2019).

Officials may also benefit from personal or functional immunities, depending on their status and the nature of the act. The details are complex and vary by office, forum, and alleged conduct. The key point for this article is narrower: territoriality does not automatically defeat immunity.

Immunities do not mean that no wrong occurred. They do not erase the territorial connection. They operate as procedural or status-based limits on what the forum may do. A state may have territorial jurisdiction in principle, but immunity may prevent the case from moving forward or block enforcement.

This distinction improves legal clarity. Territorial jurisdiction answers one question: is the case sufficiently connected to the forum’s territory? Immunity answers another: may the forum exercise adjudicative or enforcement power against this person, state, or entity? Both questions must be answered.

8.3 Treaty limits

Treaties may refine, expand, coordinate, or restrict territorial jurisdiction in specific fields. This is one reason modern analysis cannot rely only on general doctrine. Territoriality supplies the foundation, but treaty regimes often determine how that foundation operates.

The law of the sea is a major example. UNCLOS divides maritime space into zones with different legal consequences. Internal waters, territorial sea, contiguous zone, exclusive economic zone, continental shelf, and high seas do not give the coastal state the same powers. The territorial sea is subject to coastal-state sovereignty, but that sovereignty is limited by rules such as innocent passage. The high seas are governed by different principles, including flag-state jurisdiction and specific treaty rules (United Nations, 1982).

Aviation law also refines territorial authority. The Chicago Convention recognises complete and exclusive sovereignty over national airspace, while creating a treaty framework for international civil aviation. Aircraft jurisdiction, safety regulation, and international air services cannot be understood through territorial sovereignty alone (Chicago Convention, 1944).

Cybercrime instruments show another form of refinement. The Budapest Convention relies on territorial jurisdiction as a central basis, but it also creates cooperation mechanisms because cyber offences often involve infrastructure, data, suspects, and victims in different states. The treaty framework confirms that territoriality remains important, while also showing that unilateral action is often insufficient (Council of Europe, 2001).

Extradition and mutual legal assistance treaties are equally important. They do not usually create the territorial element of an offence, but they determine how states cooperate when suspects, witnesses, evidence, or assets are abroad. In practice, many territorial claims depend on these instruments for enforcement.

Treaty limits can also narrow what general territorial reasoning might otherwise suggest. A state may have an intuitive territorial interest, but a treaty may allocate authority differently or impose procedural conditions. The correct approach is to begin with the territorial link, then check the special regime.

8.4 Competing proceedings

Competing proceedings arise when more than one state has a plausible territorial claim. This is common in cross-border offences. One state may be the place of conduct. Another may be the place of result. A third may hold the accused. A fourth may hold evidence or assets.

International law does not generally create a universal hierarchy between the state of conduct and the state of result. The better forum depends on the legal elements, seriousness of harm, location of evidence, presence of the accused, interests of victims, procedural capacity, treaty obligations, and fairness.

Parallel proceedings can create serious problems. They may lead to duplication, inconsistent findings, conflicting penalties, extradition disputes, or unfair pressure on the accused. In criminal matters, double prosecution raises particular concern, although the scope of ne bis in idem differs across legal systems and treaty regimes.

Coordination is the practical answer. Prosecutors may consult. States may transfer proceedings. Evidence may be shared. Extradition may be refused or granted based on forum choice. One state may defer to another where the other has a stronger territorial connection or better capacity to prosecute. These mechanisms reduce conflict without denying the existence of overlapping jurisdiction.

Comity may also help, though it should not be treated as a complete legal rule. It operates as a principle of restraint and respect in cases of overlapping authority. A state with a thin territorial link should be cautious when another state has a much stronger connection to the conduct, result, accused, or evidence.

The final point is methodological. Competing proceedings should not be handled through vague balancing alone. The analysis should identify each state’s territorial basis. State A may rely on conduct. State B may rely on the result. State C may rely on the presence of the accused under the domestic procedure. Once those bases are clear, coordination becomes a legal and practical exercise rather than a contest of unsupported assertions.

Also read

• Principles Of Jurisdiction In International Law

• The Lotus Principle Explained in Contemporary International Law

• Principle of Territorial Integrity in International Law

• Principle of Sovereign Equality of States

• Corfu Channel Case Analysis: Sovereignty, Evidence, and Intervention

• Jurisdictional Gaps in Subsea Data Cables

• Immunity of State Officials in International Law

• Rome Statute of the International Criminal Court 1998

9. Method for legal analysis

Territorial jurisdiction should be analysed through a sequence of questions, not through broad assertions about connection, interest, or harm. The method matters because transboundary cases often contain several territorial elements at once. A single dispute may involve conduct in one state, loss in another, evidence in a third, and an accused person in a fourth.

The purpose of the method is to avoid two errors. The first is under-inclusion: denying jurisdiction simply because part of the case occurred abroad. The second is overreach: treating every factual contact with the forum as territorial jurisdiction. A sound analysis must identify the legal rule, locate the relevant conduct, locate the legally relevant result, test the territorial nexus, and separate jurisdiction from enforcement.

9.1 Identify the legal rule

The first step is to identify the legal rule being applied. Territorial analysis cannot begin with geography alone. It must begin with the offence, civil wrong, regulatory duty, or legal claim. Only then can the lawyer identify which facts matter.

The relevant rule may require conduct, result, harm, status, intent, knowledge, protected interest, or a combination of these elements. A homicide rule requires death. A fraud rule may require deception, reliance, transfer, loss, or dishonest gain. A pollution rule may require discharge, contamination, risk, damage, or breach of a permit. A cybercrime rule may focus on access, interference, interception, data damage, or system impairment.

This first step prevents vague reasoning. It is not enough to say that a case concerns fraud, cybercrime, pollution, or cross-border injury. Each legal category must be broken into its elements. Territorial jurisdiction depends on where those elements occurred.

The legal rule also determines the difference between an essential element and a background fact. A server route, bank transfer, corporate meeting, email receipt, or public effect may be relevant in one legal framework and marginal in another. The same fact can have different jurisdictional weight depending on the rule being applied.

This is why doctrinal analysis must precede factual mapping. A lawyer who maps the facts before identifying the legal elements risks treating every location as equally important. That approach weakens territorial reasoning and makes overreach more likely.

9.2 Locate the conduct

The second step is to locate the conduct. Conduct may consist of a physical act, omission, instruction, communication, transaction, corporate decision, payment, access, transfer, or operational step. The task is to identify where the legally relevant behaviour occurred.

In simple cases, this is straightforward. A person signs a false document inside the forum. A suspect sends fraudulent instructions while physically present there. A company makes a corrupt payment through a local account. A person uploads unlawful content using a device located within the state. In those examples, the forum has a strong conduct-based claim.

Harder cases require more precision. Corporate conduct may involve a decision in one state, implementation in another, and harm elsewhere. Digital conduct may involve a user in one state, servers in several others, and a victim system in a different jurisdiction. Financial conduct may pass through intermediaries, correspondent banks, and automated platforms. The legal task is to locate the act that the applicable rule treats as relevant.

Omissions need separate treatment. A failure does not occupy space in the same visible way as a physical act. The best approach is to identify where the legal duty had to be performed. A local reporting duty, safety duty, inspection duty, filing duty, or compliance obligation may locate the omission within the forum.

The location of conduct should not be inferred from harm alone. If the act occurred abroad and only the consequence occurred in the forum, the analysis belongs under objective territoriality. Confusing the two weakens the distinction at the centre of the doctrine.

9.3 Locate the result

The third step is to locate the result. A result is not every consequence of the conduct. It is the legally relevant consequence required by the applicable rule. The result may be death, injury, loss, property damage, pollution, system impairment, unlawful entry, deprivation of liberty, or damage to a protected legal interest.

This step is especially important in objective territorial jurisdiction. The forum state must identify the result that occurred within its territory and explain why that result matters legally. A general assertion that foreign conduct “affected” the forum is not enough.

The clearest cases involve physical harm. If a person is injured inside the forum, property is destroyed there, or pollution damages territorial resources, the result is concrete. Financial cases require closer analysis. The place of loss may be the victim’s account, the place where funds were transferred, the location of the affected asset, or another place recognised by the legal rule.

Cyber cases require similar care. Damage to a protected system inside the forum may be a territorial result. Deletion of local data, impairment of a domestic service, unauthorised access to a protected local account, or removal of funds from a local account may also matter. Mere accessibility of online content in the forum is weaker unless the applicable rule gives that accessibility legal significance.

The result must also be separated from the evidence. A document, server, witness, bank record, or device may be located in the forum, but evidence location does not necessarily establish the place of the wrong. Evidence may influence forum choice and investigation, but it does not replace the conduct-result analysis.

9.4 Test the territorial nexus

The fourth step is to test the territorial nexus. A territorial connection should be direct, substantial, foreseeable, and legally relevant. These criteria are not mechanical formulas. They are safeguards against turning territoriality into an unlimited theory of jurisdiction.

Directness asks whether the conduct and the territorial result are closely connected. A shot fired across a border that causes injury inside the neighbouring state is direct. A chain of economic consequences passing through several markets before affecting the forum is weaker. The longer and more uncertain the causal chain, the less persuasive the territorial claim becomes.

Substantiality asks whether the connection is real rather than artificial. Serious injury, measurable loss, damage to property, contamination, system impairment, or unlawful entry gives the forum a stronger claim. A trivial technical contact or manufactured local link should carry less weight.

Foreseeability supports legality and fair notice. The actor should be able to anticipate, at least reasonably, that the conduct may produce the relevant result in the forum. This is clear in cross-border violence, targeted fraud, and foreseeable environmental harm. It is more complex in cyber and financial cases, where systems and transactions may move through jurisdictions not chosen or known by the actor.

Legal relevance is the controlling criterion. The territorial fact must matter under the legal rule being applied. A local effect that has no role in the offence, wrong, or regulatory duty should not be inflated into a territorial basis. This is the main safeguard against disguised extraterritoriality (Mann, 1964; Ryngaert, 2015).

9.5 Separate jurisdiction from enforcement

The final step is to separate jurisdiction from enforcement. A state may have a territorial basis to apply its law or hear a case, but that does not mean it may exercise coercive power abroad. This distinction is essential in international law.

Prescriptive jurisdiction concerns the authority to make law applicable to a territorial element. Adjudicative jurisdiction concerns the authority of courts to decide the case. Enforcement jurisdiction concerns official acts such as arrest, search, seizure, inspection, interrogation, compulsory production, asset freezing, or execution of judgment.

The legal limits differ. Territorial conduct or territorial result may support prescription and adjudication. Coercive action in another state normally requires consent, treaty authority, mutual legal assistance, extradition, joint investigation arrangements, or another recognised basis. Without such a basis, enforcement abroad risks violating the sovereignty of the territorial state (Permanent Court of International Justice, 1927; Crawford, 2019).

This distinction matters in ordinary criminal cases, financial investigations, cybercrime, environmental harm, and corporate regulation. A state may have a strong claim because the result occurred in its territory. Yet the suspect may be abroad, the evidence may be abroad, or the relevant data may be controlled through foreign infrastructure. The territorial basis for the offence does not automatically solve those enforcement questions.

A proper method keeps the analysis in layers. First, identify the rule. Second, locate conduct. Third, locate the result. Fourth, test the nexus. Fifth, ask what kind of jurisdiction the state is exercising. This approach gives territorial jurisdiction its full legal force while preserving the limits imposed by sovereign equality.

Conclusion

Subjective territorial jurisdiction and objective territorial jurisdiction remain central to public international law because they connect state authority to territory in two different ways. The first is conduct-based. It applies when the legally relevant act or omission occurs inside the forum state. The second is result-based. It applies when conduct abroad produces a legally relevant consequence inside the forum state.

The distinction is simple in form, but demanding in application. Modern disputes rarely fit within one territorial space. Violence, fraud, pollution, corporate misconduct, cyber operations, financial transactions, and digital evidence often cross borders. A serious legal analysis cannot rely on general statements about connection. It must identify which element of the wrong occurred inside the forum.

Subjective territoriality is strongest where the actor performs the relevant conduct within the state. It supports public order, legality, fair notice, and access to evidence. Its main difficulty appears when conduct is fragmented through corporate structures, intermediaries, remote commands, or digital systems.

Objective territoriality is strongest where the result inside the forum is direct, substantial, foreseeable, and legally relevant. It allows the state of harm to act when a protected interest is injured within its territory. Its main danger is overextension. If every indirect effect is treated as a territorial result, territorial jurisdiction loses its limiting function and becomes disguised extraterritorial regulation.

The effects doctrine should be handled with caution for that reason. It may overlap with objective territoriality, especially in economic and regulatory fields, but it is not identical to it. Objective territoriality rests most securely on a result that forms part of the legal wrong. Broad effects-based claims require tighter justification because they can project domestic law into foreign legal orders.

The final limit is enforcement. Territorial jurisdiction may justify the application of law or the hearing of a case, but it does not authorise unilateral coercive action inside another state. Arrests, searches, seizures, compulsory evidence gathering, and execution measures abroad require consent or another recognised legal basis. This is where territoriality most clearly serves sovereign equality.

The better view is not that territorial jurisdiction is weak. It is powerful because it remains the primary link between state authority and legal space. Its legitimacy, however, depends on precision. The forum must identify the territorial element, classify it as conduct or result, test its legal significance, and respect the enforcement limits imposed by international law.

References

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