lawyers is that of compelling obedience to a norm. Enforcement of laws on the
international stage must be conducted with absolute caution and respect for the rule
of law. A state may not take action on the territory of another state without the
consent of the latter. States are not entitled to enforce nationally prescribed rules over
another state’s territory, unless there exists cooperation treaties and agreements
between the interested sovereign entities calling for such an interference.
42 Extraterritorial enforcement is, thus, the exception rather than the rule.
Although the concepts of prescriptive and enforcement jurisdiction are logically
independent, they are intertwined in practice.
43 It is reasonable to expect that once a
state has enacted certain regulations on a concrete matter, that same state will
undertake all efforts to compel compliance to those rules. If the regulations are
supposed to apply extraterritorially, the affected states (or the entirety of the international community) may then expect measures in order to enforce a given provision. Given the potential for conflicts arising of reiterated and multiple assertions of
extraterritorial jurisdiction to the world order, states should aim at lending the
international arena predictability and cohesion, enabling the resolution of différends
within the toolbox offered by the international rule of law.
4.2.2 Content of Jurisdiction: Civil, Criminal
and Environmental
Having assessed the different forms of international jurisdiction and some of the
most controversial issues around them, the next logical step is to clarify the possible
content of jurisdiction. In other words, the matters in relation to which sovereign
states possess power to prescribe rules and to establish procedures and sanctions.
Such content is traditionally subsumed to the fields of criminal and civil law. In a
wider perspective, however, there can be potentially as many types of jurisdiction
content-wise as the special subfields of legal system. One could speak of an
administrative, economic, environmental, or labor jurisdiction, amongst others,
apart from the civil and criminal macro-branches. The study of each of these types
of jurisdiction rationae materiae is conducted by their respective epistemic communities, which specialize in analyzing and pushing towards increased implementation of their respective fields.
44
For the purposes of this work, the three main categories of jurisdiction concerning
content are criminal, civil and environmental. It is possible, and even advisable, that
civil and criminal jurisdiction interact and be applied concomitantly with environmental provisions, or rules concerning the protection and preservation of the marine
42 It is the case of the North Atlantic Treaty provisions, concerning the status of the forces
integrating the alliance. See NATO Treaty, 199 UNTS 67, article VII, 1951.
43 O’Keefe (2004), p. 735.
44 On this view of how international law operates, see D’Aspremont (2015), p. 14.
4.2 From Sovereignty to Jurisdiction in International Law: Bases of Jurisdiction
95
international stage must be conducted with absolute caution and respect for the rule
of law. A state may not take action on the territory of another state without the
consent of the latter. States are not entitled to enforce nationally prescribed rules over
another state’s territory, unless there exists cooperation treaties and agreements
between the interested sovereign entities calling for such an interference.
42 Extraterritorial enforcement is, thus, the exception rather than the rule.
Although the concepts of prescriptive and enforcement jurisdiction are logically
independent, they are intertwined in practice.
43 It is reasonable to expect that once a
state has enacted certain regulations on a concrete matter, that same state will
undertake all efforts to compel compliance to those rules. If the regulations are
supposed to apply extraterritorially, the affected states (or the entirety of the international community) may then expect measures in order to enforce a given provision. Given the potential for conflicts arising of reiterated and multiple assertions of
extraterritorial jurisdiction to the world order, states should aim at lending the
international arena predictability and cohesion, enabling the resolution of différends
within the toolbox offered by the international rule of law.
4.2.2 Content of Jurisdiction: Civil, Criminal
and Environmental
Having assessed the different forms of international jurisdiction and some of the
most controversial issues around them, the next logical step is to clarify the possible
content of jurisdiction. In other words, the matters in relation to which sovereign
states possess power to prescribe rules and to establish procedures and sanctions.
Such content is traditionally subsumed to the fields of criminal and civil law. In a
wider perspective, however, there can be potentially as many types of jurisdiction
content-wise as the special subfields of legal system. One could speak of an
administrative, economic, environmental, or labor jurisdiction, amongst others,
apart from the civil and criminal macro-branches. The study of each of these types
of jurisdiction rationae materiae is conducted by their respective epistemic communities, which specialize in analyzing and pushing towards increased implementation of their respective fields.
44
For the purposes of this work, the three main categories of jurisdiction concerning
content are criminal, civil and environmental. It is possible, and even advisable, that
civil and criminal jurisdiction interact and be applied concomitantly with environmental provisions, or rules concerning the protection and preservation of the marine
42 It is the case of the North Atlantic Treaty provisions, concerning the status of the forces
integrating the alliance. See NATO Treaty, 199 UNTS 67, article VII, 1951.
43 O’Keefe (2004), p. 735.
44 On this view of how international law operates, see D’Aspremont (2015), p. 14.
4.2 From Sovereignty to Jurisdiction in International Law: Bases of Jurisdiction
95