Principle of territoriality as a base of jurisdiction in law of the sea

The principle of territoriality is derived directly from the territorial element
of the State and denotes the sum of its legal competences, its ‘plenary’
jurisdiction, summa potestas. As such it is further complemented by
instances where the State exercises prescriptive jurisdiction over activities
initiated in its territory but completed outside its territory (‘subjective territorial
jurisdiction’) or activities completed within its territory although initiated
outside its territory (‘objective territorial jurisdiction’). The latter has given rise to significant legal controversy when the US courts assumed jurisdiction in antitrust litigation over activities which, though neither actually
initiated nor completed in the US, produced nevertheless “effects” within US
territory Although later mitigated in (fluctuating) practice, the effects
doctrine gave rise to repeated assertions of extraterritoriality, usually on political
grounds – in the most recent example, in the context of economic
sanctions initially against Cuba (by virtue of the Helms-Burton Act) and
later against Iran and Libya (by virtue of the D’Amato-Kennedy Act). The
response by the international community was invariably negative, feeding a circle of reaction and counteraction in many States and principally in its major economic and political partner, the European Community and the
European Union. The (quasi-) normalisation of the commercial transactions
adversely affected by the controversy was later achieved by an exercise in
‘positive comity’ involving a series of agreements between the parties. The
political aspects, however, were to reach new heights, even becoming a
regular feature in the UN General Assembly agenda, before a mutually restraining
compromise was reached.

The end of this particular episode did not deter any further irruptions of
extraterritoriality. Thus, in a typical example, the 2001 Patriot Act authorised
the US Government to seize funds held by a non-US bank in the United
States, if a customer account maintained overseas in the non-US bank is subject
to forfeiture proceedings under the US money laundering legislation;
yet, the bank is still contractually liable to its depositor outside the United
States. The multiplication of such instances caused a reaction by the international
business community: In 2006 the International Chamber of Commerce
produced a Policy Statement on Extraterritoriality and Business, prepared
by a Task Force on Extraterritoriality, whereby it
“… encourages policy-makers, including legislators and regulators, as well as
courts, to recognise international comity and principles of moderation and respect
for other States’ interests when enacting legislation, enforcing rules or
otherwise exercising jurisdiction”.
Nevertheless, the extent of the territorial jurisdiction does not coincide
with the territory of the State. Typically, it acquires a functional nature when
it extends to the contiguous zone, where the State can exercise jurisdiction in
relation to customs, fiscal, sanitary and immigration matters; or in order to
“protect objects of an archaeological and historical nature found at sea” .

The State may also assert jurisdiction in the exclusive economic zone over
the exploration for and exploitation of the living and non-living resources,
including energy sources; over the establishment and use of artificial islands
and structures, including exclusive and full civil and criminal jurisdiction
over them irrespective of whether they are situated in the exclusive
economic zone or the continental shelf; marine scientific research; and
the protection and preservation of the marine environment.
It would be wrong, however, to assume that within its borders the State
can do as it likes: In spite of the general rule of article 2 paragraph 7 of the
UN Charter, the domestic jurisdiction of States is necessarily restricted by
considerations of international law, e.g. human rights protection rules or humanitarian
law concerns, let alone the contractual granting to or waiver of
rights in favour of another State. Indeed, whether a particular issue falls
within the ambit of domestic jurisdiction is itself a question of international
law, as both the Permanent Court of International Justice and the International
Court of Justice had occasion to affirm. Thus, the assumption of jurisdiction
on the territoriality principle, although justly considered one of the
foundation stones of jurisdiction, remains far from unchallenged.
In contrast, the assertion of territorial jurisdiction in cases of enforcement
jurisdiction is universally accepted – and in this respect the notorious dictum
in the S.S. Lotus case holds true:

“the first and foremost restriction imposed by international law upon a State is
that – failing the existence of a permissive rule to the contrary – it may not exercise
its power in any form in the territory of another State. In this sense jurisdiction
is certainly territorial; it cannot be exercised by a State outside its
territory except by virtue of a permissive rule derived from international custom
or from a convention.”
Such contractual arrangements are rather frequent in practice – and thus
the categorical character of exclusive jurisdiction assumed by the PCIJ has
certainly been mitigated. They include, typically, Status of Forces Agreements
(SOFA); the rather more “traditional” form of cooperation – in the
words of the Eritrea-Ethiopia Boundary Commission –: exchange of customs
personnel; and even practical arrangements in occupied territories.
Indeed, the whole idea of an ‘area of freedom, security and justice’ in the
European Union is based on the mutual acceptance of each member State’s jurisdiction over the territory of another – thus creating what I call a ‘millefeuille effect’ of parallel and overlapping jurisdiction. The same principle applies
in the ‘area of shared responsibility’ in matters of transnational criminal
justice currently under development by the Council of Europe.
It is also important to note that enforcement jurisdiction is also recognised
on the basis of actual control over territory, including control through the actions
of State officials. In view of the human rights obligations incumbent
upon all States, such extraterritorial jurisdiction may well evolve into a powerful
weapon allocating – or even redistributing – jurisdiction and its corollary,
State responsibility.

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