enable the possibility of overlap between two or more states’ jurisdiction.
33 Thus, the
generally accepted rule is that jurisdiction may not be exercised extraterritorially,
except for situations in which there is a clearly identifiable link between the object of
jurisdiction and the “reasonable interests” of the state in question.
34 It is, therefore,
inevitable that situations of multiple jurisdictional competence occur on the international stage, and the new law of the sea is prodigious in such sort of overlaps.
4.2.1 Forms of Jurisdiction: Prescriptive, of Enforcement
and Adjudicative
The concept of jurisdiction is twofold, for it may regard form and content. In
contemporary literature, there are few types of formal jurisdiction, which relate to
all branches of government: (i) to establish rules: legislative jurisdiction or prescriptive competence; (ii) to establish procedures: judicial jurisdiction or adjudicative
competence; and (iii) to impose consequences: enforcement jurisdiction.
35 Prescriptive, adjudicative and enforcement jurisdiction are independent among themselves,
but deeply intertwined. In other words, although a treaty provision may contain
competence to enact legislation without the corresponding enforcement powers, it is
reasonable to expect that state parties will take enforcement measures to implement
33 In cases of conflict, states could resort to some general principles, such as the principle of
reasonableness—not widespread recognized as a principle of international law. Lawyers must
also investigate special agreements between the states involved in an eventual overlap of regulatory
powers.
34 Crawford (2012), p. 457. The term “extraterritoriality” is per se confusing, as it could imply that a
state exercises jurisdiction in a certain situation without any territorial link, although the expression
is used for cases in which states have some territorial link. According to Ryngaert (2015), p. 7, “the
term “extraterritorial jurisdiction” is only accurate if it refers to assertions of jurisdiction over
persons, property, or activities which have no territorial nexus whatsoever with the regulating
State”. If most, that sort of jurisdiction would be a “not exclusively territorial” one. Due to the
misconceptions that the expression may cause, the author suggests legal operators to avoid using the
term extraterritorial jurisdiction.
35 Oxman (2007) online. On the adjudicative jurisdiction, it suffices to say that it relates to the
jurisdiction of courts. Sometimes though, international courts exercise a counterintuitive prescriptive role, as in those cases where the wording of a treaty is not clear. Here, tribunals may conjure up
the mens legislatoris, or the intent of the legislator, in particularly complex cases. In the realm of the
law of the sea, the ITLOS has been called to determine the precise content of the expression
“reasonable bonds”, to be paid by flag states who had their vessels and crew arrested, in cases of
prompt release. Art. 73 (2) UNCLOS refers only to the obligation of flag states to post a “reasonable
bond or other security” prior to the prompt release of arrested vessels. The Tribunal’s role was to
define criteria for a bond to meet the qualifier of reasonability, such as: gravity of offenses; penalties
imposable by the law of the detaining State; value of the detained vessel; value of cargo seized. See
The “Monte Confurco” Case, (Seychelles v. France), Order of 27 November 2000, ITLOS Reports
2000, 80, paras 73 ff.
4.2 From Sovereignty to Jurisdiction in International Law: Bases of Jurisdiction
93
33 Thus, the
generally accepted rule is that jurisdiction may not be exercised extraterritorially,
except for situations in which there is a clearly identifiable link between the object of
jurisdiction and the “reasonable interests” of the state in question.
34 It is, therefore,
inevitable that situations of multiple jurisdictional competence occur on the international stage, and the new law of the sea is prodigious in such sort of overlaps.
4.2.1 Forms of Jurisdiction: Prescriptive, of Enforcement
and Adjudicative
The concept of jurisdiction is twofold, for it may regard form and content. In
contemporary literature, there are few types of formal jurisdiction, which relate to
all branches of government: (i) to establish rules: legislative jurisdiction or prescriptive competence; (ii) to establish procedures: judicial jurisdiction or adjudicative
competence; and (iii) to impose consequences: enforcement jurisdiction.
35 Prescriptive, adjudicative and enforcement jurisdiction are independent among themselves,
but deeply intertwined. In other words, although a treaty provision may contain
competence to enact legislation without the corresponding enforcement powers, it is
reasonable to expect that state parties will take enforcement measures to implement
33 In cases of conflict, states could resort to some general principles, such as the principle of
reasonableness—not widespread recognized as a principle of international law. Lawyers must
also investigate special agreements between the states involved in an eventual overlap of regulatory
powers.
34 Crawford (2012), p. 457. The term “extraterritoriality” is per se confusing, as it could imply that a
state exercises jurisdiction in a certain situation without any territorial link, although the expression
is used for cases in which states have some territorial link. According to Ryngaert (2015), p. 7, “the
term “extraterritorial jurisdiction” is only accurate if it refers to assertions of jurisdiction over
persons, property, or activities which have no territorial nexus whatsoever with the regulating
State”. If most, that sort of jurisdiction would be a “not exclusively territorial” one. Due to the
misconceptions that the expression may cause, the author suggests legal operators to avoid using the
term extraterritorial jurisdiction.
35 Oxman (2007) online. On the adjudicative jurisdiction, it suffices to say that it relates to the
jurisdiction of courts. Sometimes though, international courts exercise a counterintuitive prescriptive role, as in those cases where the wording of a treaty is not clear. Here, tribunals may conjure up
the mens legislatoris, or the intent of the legislator, in particularly complex cases. In the realm of the
law of the sea, the ITLOS has been called to determine the precise content of the expression
“reasonable bonds”, to be paid by flag states who had their vessels and crew arrested, in cases of
prompt release. Art. 73 (2) UNCLOS refers only to the obligation of flag states to post a “reasonable
bond or other security” prior to the prompt release of arrested vessels. The Tribunal’s role was to
define criteria for a bond to meet the qualifier of reasonability, such as: gravity of offenses; penalties
imposable by the law of the detaining State; value of the detained vessel; value of cargo seized. See
The “Monte Confurco” Case, (Seychelles v. France), Order of 27 November 2000, ITLOS Reports
2000, 80, paras 73 ff.
4.2 From Sovereignty to Jurisdiction in International Law: Bases of Jurisdiction
93