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Law Notes Public International Law Notes

Jurisdiction And Immunities Notes

Updated Jurisdiction And Immunities Notes

Public International Law Notes

Public International Law

Approximately 460 pages

Public International Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the major LLB aspects and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Canada, Hong Kong or Malaysia (University of London). See if you like them by referring to the samples below. We've also included our previous years' authors free of charge, to give you some extra materials to refer to for the tricky topi...

The following is a more accessible 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:

I. STATE JURISDICTION

A. NOTION OF JURISDICTION

‘Jurisdiction’ is the power that States have under international law to regulate the conduct of natural and juridical persons.

Ways in which jurisdiction may be exercised:

  • Prescriptive jurisdiction: power to enact laws; (eg Parliament)

  • Enforcement jurisdiction: power to enforce laws; (eg Executive)

  • Adjudicative jurisdiction: power exercised by the courts of States in applying and enforcing laws.

Prescriptive and adjudicative jurisdiction, although primarily territorial, may be based on other grounds, like nationality, while enforcement jurisdiction is strictly territorial. For example, if X commits a crime in Britain but manages to reach the Netherlands, the British courts have jurisdiction to try him, but they cannot enforce it by sending officers to the Netherlands to apprehend him. They must apply to the Dutch authorities for his arrest and dispatch to Britain. If X remains in Britain then he may be arrested and tried there, even if it becomes apparent that he is a German national.

B. ENFORCEMENT JURISDICTION

States can only enforce their laws inside their territory. This follows from the nature of the sovereignty of states. While a state is supreme within its own territorial frontiers, it must not intervene in the domestic affairs of another nation (Lotus (France v Turkey) “jurisdiction is certainly territorial. it cannot be exercised by a State outside its teritory except”

The exercise of extra-territorial enforcement jurisdiction requires some form of consent, without which it will constitute an internationally wrongful act, though it may be domestically lawful.

In Israel v Eichmann (1961), Eichmann was found in Argentina and abducted to Israel by Israeli forces -> SC of Israel held that the illegal abduction does not affect the criminal trial, the breach is only at international law so Argentina would have a claim against Israel

  • The Jerusalem court cited the English case of Ex p Elliot [1949] as an authority for the proposition that it could exercise jurisdiction over Eichmann although he had been illegally abducted from Argentina.

  • English law has since been clarified by R v Horseferry (ex p Bennett) [1994]. Lord Griffiths held that where process of law is available to return an accused to the UK through extradition procedures English courts will refuse to try him if he has been forcibly brought within the UK’s jurisdiction in disregard of those procedures by a process to which the UK’s police, prosecuting or other executive authorities have been a knowing party.

  • Lord Griffiths “‘where process of law is available to return an accused to this country through extradition procedures our courts will refuse to try him if he has been forcibly brought within our jurisdiction in disregard of those procedures by a process to which our own police, prosecuting or other executive authorities have been a knowing party.’”

C. PRESCRIPTIVE JURISDICTION

1. Territorial Principle

States may enact laws to regulate the conduct of natural and juridical persons taking place in their territory. This competence has two aspects:

  • 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. Jurisdiction is founded when any essential constituent element of a crime is consummated on the forum state’s territory

The effect of the two principles combined is that whenever the constituent elements of a crime occur across an interstate boundary both states have jurisdiction.

In Lotus (France v Turkey), a French steamer collided with a Turkish collier in international waters. The latter vessel sank and eight people died. Turkish authorities arrested the French officer of the steamer when it reached a Turkish port. The French officer was charged with manslaughter. France argued that Turkey did not have the jurisdiction to try the offence.

The PCIJ adopted the objective territoriality principle and held that while a state was not able to exercise its power outside its frontiers in the absence of a permissive rule of international law, international law does not prohibit a state from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad. Accordingly, the Court decided that Turkey had not acted in conflict with the principles of international law by exercising criminal jurisdiction.

  • Principle of law -> PCIJsaid that a State would have territorial jurisdiction, even if the crime was committedoutside its territory, so long as a constitutive element of the crime was committedin that State.

  • Lotus principle 1: A State cannot exercise its jurisdictionoutside its territoryunless an international treaty or customary law permits itto do so

  • Lotus principle 2: Within its territory, a State may exercise its jurisdiction, on any matter, even if there is no specific rule of international law permitting it to do so

  • France alleged thatthe flag State of a vessel would have exclusive jurisdiction over offences committed on board the ship in high seas. The PCIJ disagreed. It held that France, as the flag State, did not enjoy exclusive territorial jurisdiction in the high seas in respect of a collision witha vessel carrying the flag of another State

  • Held Turkey had jurisdiction in respect to the whole incident to prosecute

  • A ship in the high seas is assimilatedto the territory of the flag State. This State may exercise its jurisdiction over the ship, in the same way as it exercises its jurisdiction over its land, to the exclusion ofall other States. In this case, the Court equated the Turkish vessel to Turkish territory

  • In this case, the PCIJheld that the “… offence produced its effects on the Turkish vessel and consequentlyin a place assimilated to Turkish territory in which the application of Turkish criminal law cannot be challenged, even in regard to...

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