3.3.4 Jurisdiction

By Emilie van den Hoven

On this page

1. Working definition
2. Examples of how ‘jurisdiction’ is used
3. The meaning of ‘jurisdiction’ in terms of MoE, affordance and LPbD

Working definition

1. Jurisdiction refers to legal power and to where such power is applicable 

2. It may refer to:

   1. the sovereign’s competence to legislate, adjudicate, and enforce;  
   2. the territory or domain over which a state holds jurisdiction in the first sense. 
   3. the competence of a specific court to adjudicate, which is defined by material and/or procedural conditions 
3. Note that since the Peace of Westphalia (1648) jurisdiction depends on sovereignty, which in turn is defined by territorial jurisdiction 

4. The circular interdependence relates to the two sides of the same coin:  

   1. internal sovereignty provides for national jurisdiction and vice-versa 
   2. external sovereignty defines international jurisdiction and vice-versa 
   3. internal sovereignty cannot exist without external sovereignty and vice-versa 

5. Jurisdiction can in principle be based on: 

   1. territory (modern law is aligned with territorial jurisdiction)  
   2. personal status (birth, kinship, membership of a religion)  
   3. subject matter (criminal jurisdiction, private law jurisdiction) 
   4. the effect of an action that gives rise to a legal claim (e.g. in tort law) 

6. In the current world order, we can distinguish:

   1. national jurisdiction
   2. international jurisdiction 
   3. supranational jurisdiction 

7. As to national jurisdiction we can distinguish: 

   1. internal jurisdiction, that is, the competence to legislate, adjudicate, and enforce the law within the state; 
   2. extraterritorial jurisdiction, that is, the competence of one state to legislate, adjudicate, or enforce its law on the territory of another state. 
8. International jurisdiction depends on the sources of international law 
9. The relationship between potentially overlapping jurisdictions is itself subject to the jurisdiction of a national court (e.g. international private law) or an international court (notably in international public law) 
10. The question who gets to decide on jurisdiction is often called: Kompetenz-Kompetenz; it refers to the question of what entity has jurisdiction to decide jurisdiction. 

Examples of how ‘jurisdiction’ is used

As the working definition demonstrates, jurisdiction is a complex notion that is used in a variety of ways depending on the situation and context. Examples of jurisdiction in context are:

• Supranational jurisdiction entails that member states of a supranational organization have decided to cede part of their sovereign competences to the organization in question.

  • E.g. EU Regulation 2019/631 sets CO2 emission standards for new passenger cars and vans, meaning every member state will have to abide by its provisions and implement it directly into national law as a binding legislative act of European Union Law.
  • Issues regarding implementation of or compliance with such Regulations or other EU legislation are justiciable and can be brought to the Court of Justice of European Union that will have general or exclusive competence to adjudicate on those matters.

• A citizen of the Netherlands drives her car over the border to deliver stolen goods in Germany. Both the Netherlands (extraterritorially, e.g. on the basis of citizenship/nationality of the defendant) and Germany (e.g. on the basis of territory where the criminal act was committed or completed) can claim and exercise jurisdiction over the case.

Because jurisdiction is a ubiquitous and multifaceted concept in law, the following section will focus on territorial jurisdiction.

The meaning of ‘jurisdiction’ in terms of MoE, affordance and LPbD

Historically, the concept of jurisdiction precedes that of ‘territory’ and that latter concept has therefore often been explained in terms of the former.¹ This raises the question of how jurisdiction came to be grounded in territory and became such an important architectural feature in law’s current mode of existence — several authors have argued that to explain this historical shift we have to turn to a specific technology and its associated affordances: cartography. This argument is convincingly made by Ford who posed in his ‘History of Jurisdiction’ that territorial jurisdiction is a relatively recent invention and that it is an affordance of the technology of modern cartography without which the modern demarcation of defined territories that enable jurisdiction would not have developed.² Ford highlights 4 typical characteristics of modern, territorial jurisdiction: (1) authority is exercised primarily by area, rather than by status or family; (2) the clear demarcation of territory is not ambiguous or contested (except in crisis or transition); (3) territory is abstractly and homogenously conceived, meaning that jurisdiction implies authority over an empty geographic space, defined by latitude and longitude, not by its ‘contents’; and, lastly, that (4) cartographic mapping produces a “gapless” map of political territories.³ The combination of these factors, he argues, grounded the Westphalian system of mutually exclusive territorial jurisdictions and thus afforded external sovereignty.⁴ Jurisdiction ‘reduces space to an empty vessel for government power’⁵ and these spaces were filled by government that could exercise power over that geographically demarcated area, which is why territorial jurisdiction, according to Ford, can be considered ‘the midwife of the administrative state’.⁶

It is interesting to note that historically jurisdictions overlapped and competed and were not dependent on the idea of sovereignty or statehood.⁷ However, jurisdiction is deeply connected to the concept of the sovereign state because, in short, sovereignty concerns the ultimate state authority that can create or alter or terminate legal relationships and obligations within a defined territory.⁸ Internal and external sovereignty are two sides of the same coin — they are mutually constitutive.⁹ The former entails the establishing of the modern state within defined territorial borders where the sovereign can legislate, adjudicate and govern and the latter amounts to the sovereign having the power to do all those things within its territory to the exclusion of all other entities or actors (also known as the principle of non-interference). The two are dependent on each other because without external sovereignty no internal sovereignty could be exercised in the face of continuous threat of interference by foreign powers and without internal sovereignty there would be no need for external sovereignty. Territorial jurisdiction and sovereignty are thus clearly interconnected and are consequently often defined in terms of each other, and scholarship struggles with determining which of the two concepts has logical precedence. Many definitions of sovereignty can thus also be found in international legal scholarship that define it in terms of territorial jurisdiction. As was for example usefully demonstrated by this non-exhaustive overview composed by Richard Builder:¹⁰

I think that the term sovereignty is very generally used to mean simply a state’s right to do as it wishes, particularly within its own territory, free of external constraint or interference. But here are some more scholarly definitions:

• The American Heritage Dictionary defines sovereignty as ‘supremacy of authority or rule as exercised by a sovereign or sovereign state’ or, alternatively, as ‘complete independence and self-government.’
• Max Huber, as Arbitrator in the 1926 Island of Palmas case, wrote that: ‘Sovereignty in the relations between states signifies independence. Independence in regard to a portion of the globe is the right to exercise there, to the exclusion of any other states, the function of a state.’
• Judge Alvarez, in his individual opinion in the Corfu Channel case, wrote that: ‘By sovereignty, we understand the whole body of rights and attributes which a state possesses in its territory, to the exclusion of all other states, and also in its relations with other states.’
• Helmut Steinberger, in the Encyclopedia of Public International Law says that: ‘Sovereignty denotes the basic international legal status of a state that is not subject, within its territorial jurisdiction, to the governmental, executive, legislative, or territorial jurisdiction of a foreign state or to foreign law other than public international law.’
• Professor Lou Henkin, in How Nations Behave, writes that the principle holds that: ‘[E]xcept as limited by international law or treaty, each state is master of its own territory.’
• And at the recent ASIL meeting, Professor Tom Franck suggested, interestingly and much more broadly, that a going definition of sovereignty is the loci of the formation of rights and duties generally recognized as establishing and implementing entitlements, distributions and obligations.

As stated above, the notion of territory provides a global mapping of sovereign entities that defines and determines external sovereignty as well as internal sovereignty. The clear demarcation of territory is also articulated as a precondition for external sovereignty as stipulated in the Montevideo Convention on Rights and Duties of States (1933) that is also a rule of customary international law.¹¹ This entails that conventionally conceived a defined territory is one of the preconditions for the recognition of sovereign authority (and associated rights and capacities) in the international legal context and, as a rule of customary international law, is binding upon all states.  Actors who do not meet the requirement of territory do not qualify for statehood under international law and can be sidelined and left without any formal legal power. As Fleur Johns points out, territory and territorial sovereignty are still the ‘primary basis for marking out the earth’s surface and organizing its inhabitants in law’ and is predominant as an ‘architecture of association’.¹² As Swiss diplomat and international lawyer Emer de Vattell said in 1758: ‘to remove every subject of discord, every occasion of quarrel, one should mark with clarity and precision the limits of territories’.¹³

Having demonstrated the importance of territory for the sovereign jurisdiction, let us zoom in on the technology that made it all possible: cartography. The emergence of cartographic practice has been very important in the development of human society.¹⁴ It is debatable whether the progression from text to cartography was quite as linear as the standard Enlightenment narrative suggests but it is clear that maps have indeed played a key role: they were first used to visualize national borders in the 17th century and provided the ‘cartogenetic infrasture’ that has ‘inscribed — and circumscribed — the conditions of possibility for a statist ‘ground map’.¹⁵ In his paper ‘The Visual Conquest of International Law’ Nikolas Rajkovic discusses how territory has wrongly been exalted as geographic or geological objectivity, as a brute fact of geology, rather than as the product of a particular value-laden technology.¹⁶ The goal of his paper is important: to question the widespread presumption that the practice of mapping and dividing our earth into defined and exclusive territorial patches of land that, literally, ground our legal space is inevitable. Rajkovic is deeply wary of what he calls cartography’s geo-teleology or in other words how cartography as a technology afforded a quintessentially state-centered notion of territory and the inscription of the state that has come to define to a large extent law’s current mode of existence.¹⁷ Rajkovic cites a host of sources from critical scholarship that evaluate cartography and practices of mapping (take Latour: ‘On such an empire — the empire of cartography, the world order. The all-encompassing Globe — the sun never sets…’¹⁸ or what William Rankin calls our dominant geo-epistemology in the face of changing spatial practices¹⁹). But it is beyond the scope of this working paper to say whether this technology is good or bad. The point is to say it is in fact a technology and therefore it is never neutral. Given this, it is important to draw attention to its specific affordances and the legal protection by design it facilitates. In short, the point is partly, to follow Rajkovic in his use of Wittgenstein’s metaphor, to expose cartography, and the printing press and text more generally, as the ‘invisible scaffolding’ of intelligibility and ultimately cognition when it comes to law.²⁰ However, these technologies are both more and less than mere scaffolding. Less in the sense that law can conceivably be built without them, albeit not automatically with the same legal protections, as we endeavor to construct different architectural infrastructures that are less dependent on these specific technologies (but will inevitably be dependent on others). Simultaneously, it is more than scaffolding in that modern mapping provided us, as Rajkovic calls it, with a cartogenerative infrastructure: in the process of depicting the world, for better or for worse, cartography (re)made that world.

For good or for ill, it is thus clear that territorial jurisdiction is the product of specific technologies (cartography and the printing press) and that it is also closely aligned with sovereignty. However, it is by no means a direct or causal line from these technological embodiments to the legal protection by design associated with text-driven law: the rule of law, democracy, and the protection of fundamental rights. The fact that these technologies afford these things does not mean that they are straightforward or guaranteed, as is clear from the very nature of affordances, but it does mean that they could not have existed in their current form without these technologies.

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References

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