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Jurisdiction & Immunites PQ Notes
I. State Jurisdiction
A. General notion of State jurisdiction
'Jurisdiction' is the right that States have under international law to regulate - by enacting and enforcing laws - the conduct of natural and juridical persons. Note that the term is also used to describe the competence of international courts and tribunals (e.g. the contentious and advisory jurisdictions of the ICJ).
Modalities of exercise of State jurisdiction:
Prescriptive jurisdiction: power to enact laws;
Enforcement jurisdiction: power to enforce laws;
Adjudicative jurisdiction: power exercised by the courts of States in applying and enforcing laws (a hybrid between prescriptive and adjudicative jurisdiction,
depending on whether the court is saying what the law is or ordering its enforcement).
This tripartite distinction comes from the US. In most of the cases you'll only see a distinction between prescriptive and enforcement jurisdiction.
It is unclear if, to exercise jurisdiction, States must point to a positive justification for exercising jurisdiction; alternatively, is it possible States can exercise jurisdiction so long as there is no prohibition on doing so (a negative justification)? The latter was the position taken by the ICJ sometime ago.
The Case of the SS Lotus (France v Turkey) (1927) PCIJ Ser. A No.10, (1949)
o Facts: Lieutenant Demon, a French citizen, was on duty as officer of a French ship. It collided on the high seas (beyond the territory of either country) with a
Turkish ship. Demon was prosecuted in pursuance of Turkish law.
At page 18: "The French Government contends that the Turkish Courts, in order to have jurisdiction, should be able to point to some title to jurisdiction recognized by international law in favour of Turkey. On the other hand, the
Turkish Government takes the view that Article 15 allows Turkey jurisdiction whenever such jurisdiction does not come into conflict with a principle of international law"
o Verdict: The Court affirmed the Turkish view; in so doing, it listed the general prohibitions towards the exercise of jurisdiction (see below -
enforcement jurisdiction is territorial; legislative and adjudicative prescription can be extra-territorial).
At page 18: "This [the Turkish] way of stating the question is also dictated by the very nature and existing conditions of international law.
International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed."
At page 19: "In these circumstances, all that can be required of a
State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty."
But the contemporary position in the literature takes the opposite starting point: not permissibility, but prohibition.
Brownlie at 475: 'If there is a cardinal principle emerging, it is that of genuine
connection between the subject-matter of jurisdiction and the territorial base or reasonable interests of the state in question';
Sovereign equality and the principle of non-intervention;
Still, note the tension in the discussion of Lotus in the Joint Separate Opinion in
Arrest Warrant, paras 50-51. The judges in Arrest Warrant describe Lotus as an old tradition in international law. But at the same time, they establish the Lotus principle as good potential for continuing to establish new bases of jurisdiction. They are hence ambivalent about the
Lotus principle. Is it a principle 'overtaken by other tendencies' or a principle with a
Crucial in practice are the reactions of States to novel attempts to exercise extra-territorial prescriptive jurisdiction.
E.g. the 'effects doctrine' put forth by the United States, evoked to justify extrajurisdictional interference in the area of competition law (e.g., trusts). The US began to sanction European companies in Europe on the grounds that the economic harms of their actions were felt in US territories. European States have consistently opposed this doctrine.
B. Jurisdictional conflicts
Before we go into the justifications for extra-territorial jurisdiction, it should be noted that such issues only arise in situations where criminal conduct has an extra-territorial element, so it implicates more than one State. In these scenarios it is common for overlapping jurisdictions to arise.
In such cases, States usually resolve the conflict through a process of bilateral or multilateral negotiations that culminate in the triggering of their respective bilateral or multilateral extradition treaties.
The criminal courts themselves will entertain jurisdiction only where the State in question has adopted explicit domestic legislation providing for an extraterritorial exercise of jurisdiction
(for the UK's stance on the matter, for e.g., see the State Immunity Act 1978).
Finally, the jurisdiction to prosecute crime in question might be regulated by a treaty.
C. Enforcement jurisdiction
Enforcement jurisdiction is territorial - States can only enforce their laws inside their territory.
The Case of the SS Lotus (France v Turkey) (1927) PCIJ Ser. A No.10, (1949)
o Verdict: remember that the court was affirming Turkey's approach - exercises of jurisdiction are valid under international law so long as they do not contradict it. In so doing, they enunciated the prohibitions under international law to exercises of jurisdiction.
o At page 18: "Now 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". This seems to limit valid enforcement to within the territory of the State.
o At page 19: "It does not, however, follow that international law prohibits a
State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to
States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion, which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable." This seems to allow the State to make laws and adjudicate cases which pertain to persons and acts outside their territory. As a result, the exercise of extra-territorial enforcement jurisdiction requires some form of justification or consent, without which it will constitute an internationally wrongful act. That does not necessarily affect the position under domestic law in cases of unlawful abduction of criminals:
Attorney-General of the Government of Israel v Eichmann (1961)
o Facts: Adolf Eichmann was Head of Section for Jewish Affairs charged with all matters related to the implementation of the Final Solution to the Jewish
Question during Hilter's reign. In May 1960, the Israeli intelligence service,
Mossad, abducted Eichmann from his hiding place in Argentina and transferred him to Jerusalem to face an Israeli court.
o Verdict: by relying on The Case of the SS Lotus, the Israeli supreme court held it has adjudicative jurisdiction. Read paragraph 9 of the judgment.
For the position under UK law, see R v Horseferry Road Magistrates' Court (ex parte
Bennett)  1 A.C. 42 HL
o Facts: The defendant, a citizen of New Zealand who was alleged to have committed criminal offences in England, was traced to South Africa by the
English police and forcibly returned to England. There was no extradition treaty between the two countries, and although special arrangements could be made for extradition in a particular case under section 15 of the Extradition
Act 1989 no such proceedings were taken
Verdict: (1) there was an existing extradition regime but (2) this regime was not followed, hence the Court refused to try the defendant.
o At page 62: "Extradition procedures are designed not only to ensure that criminals are returned from one country to another but also to protect the rights of those who are accused of crimes by the requesting country. Thus sufficient evidence has to be produced to show a prima facie case against the accused and the rule of speciality protects the accused from being tried for any crime other than that for which he was extradited. If a practice developed in which the police or prosecuting authorities of this country ignored extradition procedures and secured the return of an accused by a mere request to police colleagues in another country they would be flouting the extradition procedures and depriving the accused of the safeguards built into the extradition process for his benefit. It is to my mind unthinkable that in such circumstances the court should declare itself to be powerless and stand idly by…"
D. Prescriptive jurisdiction
As with enforcement jurisdiction, the competence of States to enact laws to regulate the activities of natural and juridical persons taking place in their territory is uncontested.
Subjective territoriality: power to regulate conduct initiated inside the territory but completed outside;
Objective territoriality: power to regulate conduct initiated outside the territory but completed inside.
o Note: in The Case of the SS Lotus, the Court relied on the principle of objective territoriality to hold that Turkey had jurisdiction to arrest Lieutenant
Demon (enforcement jurisdiction). The argument assumes that the Turkish vessel is a part of Turkish territory; this assumption would not hold any water today.
There are 5 justifications for extra-territorial prescriptive jurisdiction. Some of them are uncontroversial, others are very controversial. The least controversial bases of extra-territorial prescriptive jurisdiction are:
The nationality principle: a State may exercise prescriptive jurisdiction over their nationals when they are abroad if they commit certain crimes;
The protective principle: a State may exercise prescriptive jurisdiction over conduct that affects 'vital interests' of that State.
Is the category of 'vital interests' an open-ended category that lends itself to abuse?
The following three bases of extra-territorial prescriptive jurisdiction are more controversial. (iii)
Passive personality: States are entitled in certain circumstances to prosecute for crimes committed against persons bearing their nationality. There is increasing acceptance towards this doctrine, but it is a stretch to say that it is fully accepted under current international law.
The argument was first raised in The Case of the SS Lotus (France v Turkey)
(1927) PCIJ Ser. A No.10, (1949)
After the issue of approach (positive or negative justification to exercise of jurisdiction) France forwarded three arguments,
summarised at page 22: "(1) International law does not allow a
State to take proceedings with regard to offences committed by foreigners abroad, simply by reason of the nationality of the victim;
and such is the situation in the present case because the offence must be regarded as having been committed on board the French vessel…" (the passive personality principle)
The court did not deal with the issue of passive personality.
Because it saw the Turkish vessel as a part of Turkish territory, it held that there was no need to deal with passive personality because Turkey had territorial jurisdiction. At page 22: "the Court does not think it necessary to consider the contention that a
State cannot punish offences committed abroad by a foreigner simply by reason of the nationality of the victim. For this contention only relates to the case where the nationality of the victim is the only criterion on which the criminal jurisdiction of the
State is based. Even if that argument were correct generally speaking-and in regard to this the Court reserves its opinion-it could only be used in the present case if international law forbade
Turkey to take into consideration the fact that the offence produced its effects on the Turkish vessel and consequently in a place assimilated to Turkish territory in which the application of Turkish criminal law cannot be challenged, even .in regard
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