its laws.
36 It is one of the most relevant attributes of international law to determine
which state has jurisdiction and in which respect.
Of those formal categories, prescriptive jurisdiction corresponds to the competence to make the laws and rules of a state applicable to activities, relations or status
of persons, be via ordinary legislation, administrative regulation, or executive order.
For the early political thinkers of modern time, particularly Jean Bodin, the peculiar
and essential mark of sovereignty was the right to make law—then understood as the
sheer command of the sovereign.
37 That idea has stood the test of time and, until
nowadays, the power to command is still an essential mark of sovereignty. Commands in modern democracies are usually expressed in terms of laws that are passed
by the legislative branch of a certain territory, in an attempt to shape behavior of the
governed citizens. Questions of prescriptive jurisdiction regularly relate to the
geographical reach of a state’s laws, where those laws may be expected to produce
effects.
38
States may well exercise abusive prescriptive jurisdiction concerning a plethora
of issues. Take, for instance, the case in which a state would pass legislation enabling
the exercise of criminal power by its authorities in another state’s territory. That state
prescribing jurisdiction to act extraterritorially would certainly be faced with heated
protests in the international community. However, the mere passing of legislation
unilaterally extending jurisdiction over other territories and peoples is unlikely to
generate right to compensation or to trigger any substantive legal action. To merely
enact abusive legislation is not the same as to enforce such legislation. However, if
that abusive rule is enforced, then it is safe enough to say that the enforcing state will
have most likely committed an international wrong, which may generate consequences on the international level.
39
Enforcement jurisdiction, on the other hand, means the power
to enforce or compel compliance or to punish non-compliance with its laws or regulations,
whether through the courts or by use of executive, administrative, police, or other
nonjudicial action.
40
To enforce, from old French enforcier, based on the Latin expression in fortis,
which meant “to drive by physical force”.
41 The concept’s current meaning amongst
36 An example, to refer to the law of the sea, is jurisdiction of the coastal state in the contiguous
zone. According to Art. 133 UNCLOS, the coastal state may only “exercise control” necessary to
prevent and punish violations of domestic legislation related to customs, taxation, immigration and
sanitation. Even though the Convention does not expressly mention the prescriptive competence
(to legislate), in practice the domestic laws enacted by the coastal state may be enforced in
accordance with UNCLOS, what would indirectly amount to a jurisdiction to legislate in the
contiguous zone. For a different view, see Tanaka (2012).
37 Tooley (1952), p. 24.
38 Ryngaert (2015), p. 9.
39 Crawford (2012), p. 477.
40 SS Lotus, PCIJ Reports, Series A, No 10, 1927, 18–19.
41 Online Etymology Dictionary. Enforce. Available at: http://www.etymonline.com/index.php?
term¼enforce. Accessed 07 April 2020.
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4 Sovereignty and Jurisdiction in the Law of the Sea
36 It is one of the most relevant attributes of international law to determine
which state has jurisdiction and in which respect.
Of those formal categories, prescriptive jurisdiction corresponds to the competence to make the laws and rules of a state applicable to activities, relations or status
of persons, be via ordinary legislation, administrative regulation, or executive order.
For the early political thinkers of modern time, particularly Jean Bodin, the peculiar
and essential mark of sovereignty was the right to make law—then understood as the
sheer command of the sovereign.
37 That idea has stood the test of time and, until
nowadays, the power to command is still an essential mark of sovereignty. Commands in modern democracies are usually expressed in terms of laws that are passed
by the legislative branch of a certain territory, in an attempt to shape behavior of the
governed citizens. Questions of prescriptive jurisdiction regularly relate to the
geographical reach of a state’s laws, where those laws may be expected to produce
effects.
38
States may well exercise abusive prescriptive jurisdiction concerning a plethora
of issues. Take, for instance, the case in which a state would pass legislation enabling
the exercise of criminal power by its authorities in another state’s territory. That state
prescribing jurisdiction to act extraterritorially would certainly be faced with heated
protests in the international community. However, the mere passing of legislation
unilaterally extending jurisdiction over other territories and peoples is unlikely to
generate right to compensation or to trigger any substantive legal action. To merely
enact abusive legislation is not the same as to enforce such legislation. However, if
that abusive rule is enforced, then it is safe enough to say that the enforcing state will
have most likely committed an international wrong, which may generate consequences on the international level.
39
Enforcement jurisdiction, on the other hand, means the power
to enforce or compel compliance or to punish non-compliance with its laws or regulations,
whether through the courts or by use of executive, administrative, police, or other
nonjudicial action.
40
To enforce, from old French enforcier, based on the Latin expression in fortis,
which meant “to drive by physical force”.
41 The concept’s current meaning amongst
36 An example, to refer to the law of the sea, is jurisdiction of the coastal state in the contiguous
zone. According to Art. 133 UNCLOS, the coastal state may only “exercise control” necessary to
prevent and punish violations of domestic legislation related to customs, taxation, immigration and
sanitation. Even though the Convention does not expressly mention the prescriptive competence
(to legislate), in practice the domestic laws enacted by the coastal state may be enforced in
accordance with UNCLOS, what would indirectly amount to a jurisdiction to legislate in the
contiguous zone. For a different view, see Tanaka (2012).
37 Tooley (1952), p. 24.
38 Ryngaert (2015), p. 9.
39 Crawford (2012), p. 477.
40 SS Lotus, PCIJ Reports, Series A, No 10, 1927, 18–19.
41 Online Etymology Dictionary. Enforce. Available at: http://www.etymonline.com/index.php?
term¼enforce. Accessed 07 April 2020.
94
4 Sovereignty and Jurisdiction in the Law of the Sea