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Jurisdiction And Immunities Notes

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

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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 -> PCIJ said that a State would have territorial jurisdiction, even if the crime was committed outside its territory, so long as a constitutive element of the crime was committed in that State. Lotus principle 1: A State cannot exercise its jurisdiction outside its territory unless an international treaty or customary law permits it to 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 that the 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 with a 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 assimilated to 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 of all other States. In this case, the Court equated the Turkish vessel to Turkish territory
? In this case, the PCIJ held 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 to offences committed there by foreigners." Turkey had jurisdiction over this case

2. Extraterritorial prescriptive jurisdiction States rely on the following principles to justify their exercise of extra-territorial prescriptive jurisdiction and hence regulate conduct bearing no connection with their territory. (a) Nationality Principle (Not controversial) A State may exercise prescriptive jurisdiction over their nationals when they are abroad. However, common law countries tend to restrict the crimes over which they will exercise jurisdiction over their nationals abroad to very serious ones. In the UK this has generally been limited to treason, murder and bigamy committed by British nationals abroad. The territorial and nationality principles (as well as the increasing incidence of dual nationality) create parallel jurisdictions and possible double jeopardy, hence the need for limitations on the nationality principle by confining it to serious offences. O'Keefe (2004) argues that the person over whom the state purports to exercise its prescriptive jurisdiction must have been a national at the time of the offence. Otherwise, it is argued, a violation of the principle of nullum crimen sine lege could occur. However, state practice is varied, with some states providing for nationality jurisdiction over persons who subsequently acquire their nationality (e.g. Swedish Penal Code, ch2, s2).

(b) Protective principle (Not controversial) Ie protects vital interests of the state Nearly all states assume jurisdiction over aliens for acts done abroad which affect government functions and the vital interests of the state, such as counterfeiting of currency or official documents or attacks on diplomats.Eg Israel v Eichmann (1961) - where protective principle affirmed
? But problem was that Israel was not even in existence when Holocaust took place
? Invoked: 1. Protective principle and 2. Universality principle
? SC of Israel held that the State of Israel had a right to punish the accused under the protective principle as his alleged crime involved an intention to exterminate the Jewish people, and thus concerned the vital interests' of the State of Israel - this is not require any further justification

The Commentary to the Harvard Research Draft Convention suggested that use of the protective principle was justifiable as a basis for jurisdiction because of 'the inadequacy of most national legislation punishing offences committed within the territory against the security, integrity and independence of foreign states'. An example of the general acceptance of the protective principle is found in the doctrine of the contiguous zone. Article 33 Convention of the Law of the Sea 1982

1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; (b) punish infringement of the above laws and regulations committed within its territory or territorial sea.

2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. In Joyce v DPP [1946], HL decided that it could exercise jurisdiction over a German national who held a British passport. The German national was held to be guilty of treason when he broadcast propaganda for Germany in wartime. Being in possession of a British passport, and having availed himself of the protection which it conferred, he owed allegiance to the Crown and was liable for a breach of that duty. The fact that treason occurred outside the territory of the UK was of no consequence, since states were not obliged to ignore the crime of treason committed against them outside their territory.

Insofar as the protective principle rests on the protection of concrete interests it is sensible enough, but the interpretation of the concept of 'protection' may vary widely. For example, the protective principle was invoked in Israel v Eichmann in relation to the Jewish victims of the accused, despite the fact that Israel was not a state when the offences in question occurred. The court held that the State of Israel had a right to punish the accused under the protective principle as his alleged crime involved an intention to exterminate the Jewish people, and thus concerned the vital interests' of the State of Israel. The categories of what may be considered a vital interest for the purposes of protective jurisdiction are not closed. For example, the US asserts jurisdiction over foreigners on the high seas on the basis of the protective principle, arguing that the illegal trade in narcotics is sufficiently prejudicial to its national interest (US v Gonzalez). No criteria exist for determining such interest beyond a vague sense of gravity. While the protective principle is not often invoked explicitly in connection with the extension of jurisdiction over terrorists, the fact that the object of many terrorist acts is to coerce governments may explain the willingness of States to accept both a broadening of the bases of jurisdiction over such activity and a strengthening of obligations to suppress such activity.?

The principle of aut dedere aut iudicare (the legal obligation of states under international law to prosecute persons who commit serious international crimes where no other state has requested extradition) in relation to terrorists may be attributed customary law status, as it can be found in most treaties relating to the fight against international terrorism, such as the International Convention for the Suppression of Terrorist Bombings and the International Convention for the Suppression of the Financing of Terrorism. Such conventions also establish a universal treaty obligation to fight terrorism. The Friendly Relations Declaration, which reflects customary law, states that '[e]very State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.'

Questions about the protective principle remain:
? Is the category of 'vital interests' an open-ended category that lends itself to abuse?
? Would the principle allow State A to exercise criminal jurisdiction over the officials of State B in respect of their actions in the execution of an unfriendly policy (e.g. embargo) of State B towards State A? Enforcement may be practically impossible.

(c) Passive Personality (More controversial) States are entitled in certain circumstances to prosecute for crimes committed against persons bearing their nationality.
- Eg International terrorism completely accepted cf petty theft?
This may take place in the context of international terrorism. In US v Yunis (No.2), a Lebanese citizen was apprehended by US agents in international waters and was prosecuted in the US for alleged involvement in the hijacking of a Jordanian airliner. The only connection between the hijacking and the US was the fact that several American nationals were on that flight. The District Court accepted that the passive personality principle provided an appropriate basis for jurisdiction in the case. It has been accepted by the international community in the sphere of terrorist acts and other international crimes, such as organised attacks on a state's nationals by reason of their nationality or to assassinations of a state's diplomatic representative or other officials. It was also noted by Higgins, Buergenthal and Kooijmanns in their Joint Sep Op to Arrest Warrant (DRC v Belgium) that passive personality jurisdiction is now reflected in the legislation of "various countries, and today meets with relatively little opposition, at least so far as a particular category of offences is concerned."
- NOTE -> this would used in the context of Terrorism - quoted USA Antiterrorism Act
? At most can be extended to something of similar magnitude eg genocide but not something as trivial as stealing a pen Aut dedere aut iudicare provisions in most criminal law treaties authorize the use of passive personality jurisdiction as between states parties (e.g. Art 5(1)(c) Convention Against Torture) The passive personality principle has been much criticized:?

It may intrude on the right of another State to prescribe and enforce applicable standards of conduct in its territory or to its nationals, and on the rights of individuals who cannot be expected to know the criminal laws of every State whose nationals travel abroad, or even to suspect that they are subject to arrest and prosecution by a foreign State. De Vabres criticized the passive personality jurisdiction as a solution that would not correspond to the way the judicial system is domestically organized, would not close an enforcement gap, and would lack any social aim of repression. Instead, it merely increase competency conflicts between States.

(d) Treaties As regards crimes that present transnational challenges or otherwise are of concern to the international community, several treaties have been concluded which regulate issues of jurisdiction. These treaties fulfil two purposes:?

clarifying on what bases States are entitled to exercise criminal jurisdiction; imposing obligations aut dedere aut judicare (either extradite or prosecute), such as Art 5 Convention against Torture 1984:

1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over [the crime of torture] in the following cases: (a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; (b) When the alleged offender is a national of that State; (c) When the victim is a national of that State if that State considers it appropriate. (passive personality)

2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him... (this is the aut dedere aut judicare obligation)

These treaties provide for the exercise of state jurisdiction but not for universal jurisdiction per se, as the operation of the aut dedere requirement is limited to States Parties, which explicitly authorize each other to exercise jurisdiction over crimes committed by their nationals or on their territory. This may be considered quasi-universal/subsidiary jurisdiction. Obligation to Prosecute or Extradite (Belgium v Senegal) (ICJ held in favour of Belgium that Senegal had to prosecute or extradite person) illustrates what it means to establish and exercise jurisdiction. Belgium contended that Senegal was in breach of its obligation to investigate and prosecute under the Convention against Torture. The ICJ confirmed that the obligations to establish universal jurisdiction for the crimes set down by the Convention, to investigate the relevant facts, and to prosecute are all 'elements of a single conventional mechanism' - parties agreed that torture regarded by CIL as international crimes, independent of the Torture Convention.Establishing universal jurisdiction has a deterrent character and has to be implemented as soon as the State becomes bound by the Convention. Compliance with this is a necessary condition for the realization of the other two obligations. A delay in the adoption of the necessary legislation in order to prosecute suspects for acts of torture necessarily affects the implementation of the obligations to investigate and prosecute these suspects

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