Abstract: In the era of globalization and digitization, the extraterritorial jurisdiction of public law is not only a controversial issue in international law, but also a key issue for China to address the improper extraterritorial application of foreign law and build a legal system for the extraterritorial application of Chinese law. It is urgent to clarify the boundaries and limitations of the extraterritorial jurisdiction of public law. The US has taken a unilateral path to expand its public law extraterritorial jurisdiction, especially in the field of export control, by arbitrarily expanding extraterritorial jurisdiction rules and standards, breaking through the widely recognized traditional jurisdictional principles in international law. Based on the different objectives and functions of the jurisdiction of prescription, judiciary, and enforcement, combined with existing principles of international law and state practice, the extraterritorial jurisdiction of public law should be limited within a reasonable and moderate range. Extraterritorial jurisdiction of prescription should be based on the principles of sovereign equality and non-intervention, with the principle of genuine link as the substantive requirement and the principle of proportionality as the core constraint. The extraterritorial jurisdiction of the judiciary should apply the presumption against extraterritoriality. If the presumption is broken, it is still necessary to follow the principles of international law, with the principle of actual connection as a requirement and the principle of international comity as a constraint. Extraterritorial jurisdiction of enforcement should adhere to the principle of strict territoriality: direct law enforcement should be based on state consent; indirect law enforcement within a territory should be based on the principle of reasonableness, and mutual assistance in law enforcement should be based on the principle of reciprocity.

Keywords: export control; extraterritorial jurisdiction; extraterritorial jurisdiction of public law; extraterritorial application; the principle of proportionality

 

Author: Wang Huiru, assistant research fellow, CASS Institute of International Law; lecturer, Law School of the University of CASS

Source: 6 (2025) Wuhan University International Law Review.