401. CATEGORIES OF JURISDICTION

 

Under international law, a state is subject to limitations on

(a) jurisdiction to prescribe, i.e., to make its law applicable to the activities, relations, or status of persons, or the interests of persons in things, whether by legislation, by executive act or order, by administrative rule or regulation, or by determination of a court;

(b) jurisdiction to adjudicate, i.e., to subject persons or things to the process of its courts or administrative tribunals, whether in civil or in criminal proceedings, whether or not the state is a party to the proceedings;

(c) jurisdiction to enforce, i.e., to induce or compel compliance or to punish noncompliance with its laws or regulations, whether through the courts or by use of executive, administrative, police, or other nonjudicial action.

 

Comment:

 

a. Aspects of jurisdiction. This section and the chapters that follow do not divide exercises of authority by a state into discrete conceptual categories. Rather, they identify different aspects of the exercise of authority that, because they employ different means and have different consequences, have led to different rules of international law. The limitations on a state's authority to subject foreign interests or activities to its laws differ from those that govern the state's jurisdiction to adjudicate, and the limitations on a state's authority to enforce its law through administrative, executive, or police action differ in some respects from those that apply to enforcement through its courts. Although the aspects of jurisdiction here set forth resemble the traditional division of governmental authority into legislative, judicial, and executive powers, the exercise of jurisdiction does not fit neatly into such categories. See Introductory Note to this Part. Jurisdiction to enforce through nonjudicial means depends on jurisdiction to prescribe the law sought to be enforced, but it may be exercised under certain conditions when there is no jurisdiction to adjudicate. See s 431.

b. Jurisdiction under international and United States law. International law deals with the propriety of the exercises of jurisdiction by a state, and the resolution of conflicts of jurisdiction between states. The domestic law of the United States addresses the propriety of exercises of jurisdiction by legislative, executive, administrative, or judicial bodies, both federal and State, under the United States Constitution, the State constitutions, and State and federal law. In general, domestic law is construed, when fairly possible, so as not to conflict with international law. See s 114 and s 403, Comment g.

c. "Subject matter jurisdiction." "Subject matter jurisdiction," in common usage in other contexts, is not used in this Restatement. This term sometimes refers to the constitutional authority of a governmental body, for example, the authority of Congress under the United States Constitution to legislate on a subject (principally under Article I, Section 8), or the authority of a State of the United States to legislate within constitutional limitations on State authority (Article I, Section 10). The term is also often used in judicial decisions to describe other limitations on governmental authority, including those involving the reach of United States law, addressed in this Restatement as jurisdiction to prescribe. Jurisdiction to prescribe with respect to transnational activity depends not on a particular link, such as minimum contacts ("use of the mails," or "crossing state lines"), which have been used to define "subject matter jurisdiction" for constitutional purposes, but on a concept of reasonableness based on a number of factors to be considered and evaluated. See ss 402-403. For use of the term "subject matter jurisdiction" in the contexts of jurisdiction to adjudicate and recognition of foreign judgments, see s 421, Comment j and s 482, Comment d.