State practice following the Lotus case (1927) evidenced a shift from the prohibitive to a permissive approach to jurisdiction in international law. In other words,
extraterritorial prescriptive jurisdiction is prohibited, lest a permissive rule allows the
jurisdictional assertion. That new approach, also labelled “permissive principles
approach” primarily links sovereignty with territoriality—or “territorial sovereignty”—in which a state is independent and, therefore, not bound to alien legislation that attempts to regulate the conduct of individuals in other countries. Said
differently, a state may not exercise jurisdiction in cases where it has no basis of
jurisdiction or when it is not affected by an activity.
A relevant cornerstone in this shift towards the permissive principles approach
was laid by UNCLOS. In fact, the Convention relies heavily on the principle of
territoriality, particularly in relation to the law applicable in the different maritime
zones off the coast of states.
48 Territoriality, as implemented at UNCLOS, serves
two main purposes: it prevents other states from encroaching on coastal states’
jurisdictional zones, and it prevents coastal states from unlawfully attacking other
states’ sovereignty and jurisdiction.
4.3 From Sovereignty to Progressive Jurisdiction
in the New Law of the Sea
A systematic reading of UNCLOS allows for the identification of three main actors
that are granted jurisdiction in oceanic affairs: coastal, flag and port states. Adding to
that variety of actors, the new law of sea divides the ocean into maritime zones in
which different legal regimes apply. An inevitable consequence of such plurality is
the phenomenon of concurrent or conflicting jurisdictions between these zones.
Concurrent jurisdiction may, in certain cases, deem the basic principles of territoriality and nationality not very helpful in tackling disputes. In this context, the analysis
of jurisdiction, if taken to level of details, turns into a complex and challenging
endeavor, as disputes and clashes of rights within those different maritime zones
may be governed by diverse rules on both prescriptive and enforcement jurisdiction.
The concepts of sovereignty and jurisdiction play out in a rather interesting way
in the law of the sea, whose origins could be summed up to the ancient and opposing
brought by the parties to an Annex VII Arbitral Tribunal, while, pending the composition of the
tribunal, Italy applied for provisional measures before the ITLOS, pursuant to Art. 290 (5),
UNCLOS. The case was so thorny, that the ITLOS abstained from granting the provisional
measures sought by Italy prior to the ascertainment of the exact criminal jurisdiction to trial by
Arbitral Tribunal. For more, see The “Enrica Lexie” Incident (Italy v. India), Provisional Measures, Order of 24 August 2015, ITLOS Reports 2015.
48 The codification of a 12 nm territorial sea, also known as “territorial waters”, Article 2 ff., is a sign
of the territorialist approach enshrined at UNCLOS. The Convention has also accommodated
differing interests of coastal and flag states and expanded the maritime zones over which the
formers exercise some degree of authority.
4.3 From Sovereignty to Progressive Jurisdiction in the New Law of the Sea
97
extraterritorial prescriptive jurisdiction is prohibited, lest a permissive rule allows the
jurisdictional assertion. That new approach, also labelled “permissive principles
approach” primarily links sovereignty with territoriality—or “territorial sovereignty”—in which a state is independent and, therefore, not bound to alien legislation that attempts to regulate the conduct of individuals in other countries. Said
differently, a state may not exercise jurisdiction in cases where it has no basis of
jurisdiction or when it is not affected by an activity.
A relevant cornerstone in this shift towards the permissive principles approach
was laid by UNCLOS. In fact, the Convention relies heavily on the principle of
territoriality, particularly in relation to the law applicable in the different maritime
zones off the coast of states.
48 Territoriality, as implemented at UNCLOS, serves
two main purposes: it prevents other states from encroaching on coastal states’
jurisdictional zones, and it prevents coastal states from unlawfully attacking other
states’ sovereignty and jurisdiction.
4.3 From Sovereignty to Progressive Jurisdiction
in the New Law of the Sea
A systematic reading of UNCLOS allows for the identification of three main actors
that are granted jurisdiction in oceanic affairs: coastal, flag and port states. Adding to
that variety of actors, the new law of sea divides the ocean into maritime zones in
which different legal regimes apply. An inevitable consequence of such plurality is
the phenomenon of concurrent or conflicting jurisdictions between these zones.
Concurrent jurisdiction may, in certain cases, deem the basic principles of territoriality and nationality not very helpful in tackling disputes. In this context, the analysis
of jurisdiction, if taken to level of details, turns into a complex and challenging
endeavor, as disputes and clashes of rights within those different maritime zones
may be governed by diverse rules on both prescriptive and enforcement jurisdiction.
The concepts of sovereignty and jurisdiction play out in a rather interesting way
in the law of the sea, whose origins could be summed up to the ancient and opposing
brought by the parties to an Annex VII Arbitral Tribunal, while, pending the composition of the
tribunal, Italy applied for provisional measures before the ITLOS, pursuant to Art. 290 (5),
UNCLOS. The case was so thorny, that the ITLOS abstained from granting the provisional
measures sought by Italy prior to the ascertainment of the exact criminal jurisdiction to trial by
Arbitral Tribunal. For more, see The “Enrica Lexie” Incident (Italy v. India), Provisional Measures, Order of 24 August 2015, ITLOS Reports 2015.
48 The codification of a 12 nm territorial sea, also known as “territorial waters”, Article 2 ff., is a sign
of the territorialist approach enshrined at UNCLOS. The Convention has also accommodated
differing interests of coastal and flag states and expanded the maritime zones over which the
formers exercise some degree of authority.
4.3 From Sovereignty to Progressive Jurisdiction in the New Law of the Sea
97