International law of jurisdiction determines how far, ratione loci and ratione
materiae, the laws and rules of a state may reach.
27 One of the main goals of that is to
enable a peaceful coexistence between sovereign state in the international arena via
creating obstacles to excessive and unbalanced exercises of power.
28 Limiting the
state’s coercive powers is, therefore, one much celebrated feature of jurisdiction,
particularly if one understands jurisdiction as a source not only of rights, but also of
duties.
29 States are not free to do whatever they want, nor to exercise authority
unrestrictedly. There must be “linking points”, or bases of jurisdiction.
30 When
analyzing the manifestations of jurisdiction, international lawyers include territoriality, nationality, universality and the protective principle.
31 Those bases require a
brief explanation on their content and scope.
International jurisdiction is historically informed by the concepts of territoriality
and nationality. A key presumption to the study of the topic is that the regulatory
authority of the state is essentially territorial and relative to its own nationals. The
primary source is territoriality, according to which states exercise power over
persons, things or events within their territories.
32 The argument in favor of territoriality is reinforced by the domestic legal presumption against the extraterritorial
application of legislation—which is valid in several national legal orders worldwide.
A bit of the problematic exercise of extraterritorial jurisdiction and the problems
involved in the (sometimes) tense relationship between international and national
law are further addressed below.
Another basis of jurisdiction is nationality, i.e., the personal identity of the
parties. In these cases, power can travel beyond borders and remains intimately
connected to people. These two “linking points” between state and regulatory power
27 Article 2 (1), UN Charter and the principle of “one state, one vote”—famous expression of
sovereign equality in the international sphere, albeit from a formal perspective.
28 Blakesley ponders that international law on jurisdiction is less developed than the domestic law
on jurisdiction, or in other words, that the advance of the law on jurisdiction has been promoted in
the past decades mostly by domestic court decisions. International law in this sense has given a
limited contribution. See Blakesley (1999), p. 37. An interesting query would be to assess the
causes for this Distanzierung of international law from issues relating to state jurisdiction.
29 For more on the shift from the traditional view that conceived jurisdiction as ascribing mainly
rights to states, to an understanding of international jurisdiction that focuses increasingly on
individual rights, and therefore, increasingly levies duties on states, see Mills (2014), p. 230. For
the purpose of this work, to analyze the environmental jurisdiction of coastal states in the law of the
sea, there seems to be little relevance of the emerging influence of rights and powers of individuals
to the overall functioning of the law of the sea, as the main actors continue to be sovereign states and
international organizations.
30 Most common basis for the exercise of extraterritorial jurisdiction are treaties, in which states
agree to cooperate and secure the effective subjection of offenses to the law. See Staker
(2014), p. 315.
31 Ryngaert (2015), p. 114.
32 See Staker (2014), p. 317. A controversy lies on the claim that states have regulatory powers over
the events that were not triggered nor finished, but merely produced “effects” within their territories.
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4 Sovereignty and Jurisdiction in the Law of the Sea
materiae, the laws and rules of a state may reach.
27 One of the main goals of that is to
enable a peaceful coexistence between sovereign state in the international arena via
creating obstacles to excessive and unbalanced exercises of power.
28 Limiting the
state’s coercive powers is, therefore, one much celebrated feature of jurisdiction,
particularly if one understands jurisdiction as a source not only of rights, but also of
duties.
29 States are not free to do whatever they want, nor to exercise authority
unrestrictedly. There must be “linking points”, or bases of jurisdiction.
30 When
analyzing the manifestations of jurisdiction, international lawyers include territoriality, nationality, universality and the protective principle.
31 Those bases require a
brief explanation on their content and scope.
International jurisdiction is historically informed by the concepts of territoriality
and nationality. A key presumption to the study of the topic is that the regulatory
authority of the state is essentially territorial and relative to its own nationals. The
primary source is territoriality, according to which states exercise power over
persons, things or events within their territories.
32 The argument in favor of territoriality is reinforced by the domestic legal presumption against the extraterritorial
application of legislation—which is valid in several national legal orders worldwide.
A bit of the problematic exercise of extraterritorial jurisdiction and the problems
involved in the (sometimes) tense relationship between international and national
law are further addressed below.
Another basis of jurisdiction is nationality, i.e., the personal identity of the
parties. In these cases, power can travel beyond borders and remains intimately
connected to people. These two “linking points” between state and regulatory power
27 Article 2 (1), UN Charter and the principle of “one state, one vote”—famous expression of
sovereign equality in the international sphere, albeit from a formal perspective.
28 Blakesley ponders that international law on jurisdiction is less developed than the domestic law
on jurisdiction, or in other words, that the advance of the law on jurisdiction has been promoted in
the past decades mostly by domestic court decisions. International law in this sense has given a
limited contribution. See Blakesley (1999), p. 37. An interesting query would be to assess the
causes for this Distanzierung of international law from issues relating to state jurisdiction.
29 For more on the shift from the traditional view that conceived jurisdiction as ascribing mainly
rights to states, to an understanding of international jurisdiction that focuses increasingly on
individual rights, and therefore, increasingly levies duties on states, see Mills (2014), p. 230. For
the purpose of this work, to analyze the environmental jurisdiction of coastal states in the law of the
sea, there seems to be little relevance of the emerging influence of rights and powers of individuals
to the overall functioning of the law of the sea, as the main actors continue to be sovereign states and
international organizations.
30 Most common basis for the exercise of extraterritorial jurisdiction are treaties, in which states
agree to cooperate and secure the effective subjection of offenses to the law. See Staker
(2014), p. 315.
31 Ryngaert (2015), p. 114.
32 See Staker (2014), p. 317. A controversy lies on the claim that states have regulatory powers over
the events that were not triggered nor finished, but merely produced “effects” within their territories.
92
4 Sovereignty and Jurisdiction in the Law of the Sea