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Jurisdiction Notes

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This is an extract of our Jurisdiction document, which we sell as part of our Public International Law Notes collection written by the top tier of Oxford students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Public International Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Generally

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Definition: State's legal power to subject persons, objects & events to its regulation
? Higgins: allocation of competence b/w states ? key question: whether particular state has competence

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Absolute Nature (i) Jurisdiction of state within its territory is complete & absolute
? rationale: state sovereignty + its existence as int. person (ii) Can be modified by the state = freely undertaken obl.
? dipl. immunity; public vessels of other states

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Concurrent Jurisdiction
? Priority dependent solely on custody Types of Jurisdiction (i) Jurisdiction to prescribe - state's power to apply the law
? Virtually unlimited, except where ltd by specific int. obl.
? 2 broad approaches: i. Prohibitive rule - state has gen. entitlement to prescribe unless specific rule prohibits it ii. Permissive rule(*general rule!) - there needs to exist a specific rule entitling state to exercise jurisdiction
= Approach significant for burden of proof + position adopted in absence of rules
- Types of Permissive Rules

1. Territoriality

2. Nationality

3. Protective principle

4. Passive personality

5. Universality (ii) Jurisdiction to enforce - state's power to induce/compel compliance & punish incompliance
? territorial: state may not exercise powers in territory of another state unless a permissive rule exists to the contrary (Lotus Case) (iii) Jurisdiction to adjudicate - state's power to subject persons to proceedings in court Territoriality

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State has prescriptive jurisdiction over all matters arising in its territory

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Issue: when an act has "taken place" in state's territory ? significance reduced by: (i) Objective territoriality - state has jurisdiction over offences completed in its territory, even if some constituent element took place abroad o Lotus Case - collision b/w French & Turk. ships, 8 Turk. crew members died, held: Turk. had jurisdiction b/c, although crime initiated on Fr. vessel, it was completed on Turk. vessel (constituent element)
? NB: current approach to ships/aircraft: jurisdiction acc to flag (ii) Subjective territoriality - state has jurisdiction over all offences & affairs which commence in its territory, even if completed abroad o Crim. Justice Act 1993 -Engl. Courts exercise jurisdiction over certain crimes when constituent element occurs in UK + intent to commit offence in UK. o S59 Terrorism Act 2000 - jurisdiction over incitement to commit terrorist offences in UK, even if crime occurs elsewhere
? Harvard Commission Draft - proposal to combine both Nationality

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State can prescribe rules over its nationals abroad
? Possible to have more than one nat.'l -grant depends on state's domestic law (birth, nat.'l of parents etc.)

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Whether state will seek extradition of national depends on: a) Domestic approach b) Nature of the offence
? Common law has a more restricted approach than civil law jurisdictions
? NB: subsidiaries of companies = different legal entities (jurisdiction based on its own incorporation, not that of parent company (Barcelona Traction Case) Protective Principle

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