requirements for the exercise of regulatory powers. The core of this discussion is
international criminal law, in which states have recognized jurisdiction more as a
matter of duty than of right.
187
Aware of the complexity of the concept of sovereignty and jurisdiction, this part
has, nonetheless, attempted at facilitating the understanding of the relationship and
the differences between both.
188 Jurisdiction (domestic and internationally) is the
operationalization of the principle of sovereignty. International jurisdiction, attributed to states by treaties, represent the expression of sovereignty by means of state
consent. Besides, there is not an absolute jurisdiction (prescriptive, adjudicative and
of enforcement), i.e. the state cannot exercise power in absolute and unlimited ways.
Secondly, jurisdiction is determined in order to prevent the state from exercise
abusive powers over its own or foreign individuals. Grasping this will be of use
for the analyses of the problems set out at the introduction of this paper with regard
to the law of the sea.
Sovereignty and jurisdiction are there to stay, despite the temptation to believe
that internationalism will prevail and that the international body of rules will render
the concept of territoriality, extraterritoriality and nationality obsolete. Even if a
global administrative law emerges,
189 individual states will continue to be key actors
in global governance schemes and the international regulation of activities. The
matter is, thus, one of delineating jurisdiction with clarity, so as to achieve as much
legal security and predictability as possible in the international relations.
Unilateral and excessive exercise of jurisdiction by states or international organizations can be problematic, especially if one considers that global problems
usually call for collectively worked solutions, to be cast in local terms and tackled
locally. In this context, unilateralism may lead to political and economic abuse, as
well as regulatory anarchy, a situation which benefits just a few. A solution to that
problem could be a rule of reason and, as with every issue in international law,
compromise between conflicting interests, the law of the sea and “territorial pressures” from coastal states being no different. Unilateral assertion of powers over
larger maritime areas offshore are also widespread known in the law of the sea
literature as “creeping jurisdiction”. In short, this practice would amount to “ocean
enclosure movement”
190 in which coastal states have unlawfully expanded territorial
jurisdiction to the detriment of the overriding principle of freedom of the seas.
187 Id. 211.
188 A most interesting case that points out to the distinction between sovereignty and jurisdiction is
the Lease Agreement of 1903 for the Guantanamo Naval Base in Cuba to the United States. The
agreement confers the United States “complete jurisdiction and control” over the Base, but retains
Cuban sovereignty over the territory where the Base is located. In the Rasul v. Bush case, the United
States Supreme Court decided that the detention of prisoners in the Guantánamo Base was legal
and, due to the Lease Agreement, US federal courts had jurisdiction to entertain cases concerning
the Base.
189 For further reading on the concept of global administrative law, see generally Krisch (2010).
190 Alexander (1983), p. 561.
6.5 Partial Conclusions
183
international criminal law, in which states have recognized jurisdiction more as a
matter of duty than of right.
187
Aware of the complexity of the concept of sovereignty and jurisdiction, this part
has, nonetheless, attempted at facilitating the understanding of the relationship and
the differences between both.
188 Jurisdiction (domestic and internationally) is the
operationalization of the principle of sovereignty. International jurisdiction, attributed to states by treaties, represent the expression of sovereignty by means of state
consent. Besides, there is not an absolute jurisdiction (prescriptive, adjudicative and
of enforcement), i.e. the state cannot exercise power in absolute and unlimited ways.
Secondly, jurisdiction is determined in order to prevent the state from exercise
abusive powers over its own or foreign individuals. Grasping this will be of use
for the analyses of the problems set out at the introduction of this paper with regard
to the law of the sea.
Sovereignty and jurisdiction are there to stay, despite the temptation to believe
that internationalism will prevail and that the international body of rules will render
the concept of territoriality, extraterritoriality and nationality obsolete. Even if a
global administrative law emerges,
189 individual states will continue to be key actors
in global governance schemes and the international regulation of activities. The
matter is, thus, one of delineating jurisdiction with clarity, so as to achieve as much
legal security and predictability as possible in the international relations.
Unilateral and excessive exercise of jurisdiction by states or international organizations can be problematic, especially if one considers that global problems
usually call for collectively worked solutions, to be cast in local terms and tackled
locally. In this context, unilateralism may lead to political and economic abuse, as
well as regulatory anarchy, a situation which benefits just a few. A solution to that
problem could be a rule of reason and, as with every issue in international law,
compromise between conflicting interests, the law of the sea and “territorial pressures” from coastal states being no different. Unilateral assertion of powers over
larger maritime areas offshore are also widespread known in the law of the sea
literature as “creeping jurisdiction”. In short, this practice would amount to “ocean
enclosure movement”
190 in which coastal states have unlawfully expanded territorial
jurisdiction to the detriment of the overriding principle of freedom of the seas.
187 Id. 211.
188 A most interesting case that points out to the distinction between sovereignty and jurisdiction is
the Lease Agreement of 1903 for the Guantanamo Naval Base in Cuba to the United States. The
agreement confers the United States “complete jurisdiction and control” over the Base, but retains
Cuban sovereignty over the territory where the Base is located. In the Rasul v. Bush case, the United
States Supreme Court decided that the detention of prisoners in the Guantánamo Base was legal
and, due to the Lease Agreement, US federal courts had jurisdiction to entertain cases concerning
the Base.
189 For further reading on the concept of global administrative law, see generally Krisch (2010).
190 Alexander (1983), p. 561.
6.5 Partial Conclusions
183