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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
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
? 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
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
State has prescriptive jurisdiction over all matters arising in its territory
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
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.)
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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