#3540 - Jurisdiction - Public International Law

Generally

• 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

1. Jurisdiction of state within its territory is complete & absolute

• rationale: state sovereignty + its existence as int. person

2. Can be modified by the state = freely undertaken obl.

• dipl. immunity; public vessels of other states

• Concurrent Jurisdiction

• Priority dependent solely on custody

Types of Jurisdiction

1. Jurisdiction to prescribe – state’s power to apply the law

• Virtually unlimited, except where ltd by specific int. obl.

• 2 broad approaches:

1. Prohibitive rule – state has gen. entitlement to prescribe unless specific rule prohibits it

2. 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

2. 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)

3. 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:

1. Objective territoriality – state has jurisdiction over offences completed in its territory, even if some constituent element took place abroad

• 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

2. Subjective territoriality – state has jurisdiction over all offences & affairs which commence in its territory, even if completed abroad

• Crim. Justice Act 1993 –Engl. Courts exercise jurisdiction over certain crimes when constituent element occurs in UK + intent to commit offence in UK.

• 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:

1. Domestic approach

2. 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

• State can exercise jurisdiction over acts committed abroad by non nations when they are contrary to its national security and/or vital interests

• Some writers merge it with effects doctrine = but should keep separate

1. Protective principle – protection of national security interests

2. Effects doctrine – protection of economic interests

• But could merge = e.g. state A counterfeits currency of state B to cause inflation = economic attack which doctrine applies....

• Covers any matters which produce a delirious effect on the state/are harmful, irrespective of where/who commits them = covers any matter harmful to the state

• Contrast w/ universal jurisdiction, which covers only certain offences

• Yousef v US – US had jurisdiction to prosecute people who conspired to plot bombs on place bound for Philippines as a practice run for attack on US/

• Joyce v DPP – US nat.’l fraudulently applied for UK passport, broadcasted propaganda on German radio, UK prosecuted for treason, since act harmful to UK.

• AG of Israel v Eichmann – E, Head of Gestapo, resp. for Final Solution (murder of 600,000 jews). Abducted by Israeli agents from Argentina w/out consent. Prosecuted in Israel for war crimes: protective principle (‘linking point’: crime intended to exterminate Jews = implied jurisdiction)

• Difficult to see how Israel’s “vital interests” were harmed since not a state at the time

• Linking Point Doctrine (Mann) – state has legislative jurisdiction if its contract w/set of facts is so close, substantial, direct & weighty that legislation re them is in harmony with IL – mere political, economic, commercial, social interest in themselves are insufficient

• Easily politicized...

Passive Personality

• State’s jurisdiction on the basis of nationality of the victim (all crimes committed against its nationals, regardless of nationality of perpetrator & location of the crime)

• Primarily ground for crim. jurisdiction – possible extension to duty type situations (tort, trusts)

• Cutting Case – Mexico sought jurisdiction over US nat.’l for crim. libel which happened in US, b/c V was Mexican; US disagreed

• Lotus Case– discussed it but no conclusion as to validity

• NB: court equally divided (happened 2 times in ICJ history – + Nuclear Weapons Case)

• NB: principle omitted from Harvard Draft Convention

• Recent acceptance in some contexts – HR/Terrorism Treaties (Art 5 Conv. against Torture)

• US v Yunis (No2) - D, Lebanese, hijacked Jordanian airline @Beirut airport, 2 US nat.’l abroad, blew it up; arrested by FBI onboard a yacht in int. waters, convicted in US court for hostage taking + piracy; jurisdiction = Hostage Taking Act & Anti Hijacking Act + passive personality + universality.

• Pinochet Case– Spain sought extradition of P from Chile on the basis of passive personality

• Lotus Case– US (US Terrorist Prosecution Act) & France (Art 113-117 French Penal Code)used to object but now accepts passive personality

• Most states refrain from saying it conclusively but plausible to argue it constitutes customary IL interesting question: whether any state could show it’s remained a persistent objector

Universal Jurisdiction

• Certain crimes are so destructive for international order that any state may exercise jurisdiction, regardless of where/by who committed

• Key consideration: nature of the offence (e.g. piracy on high seas = jurisdiction to avoid impunity)

1. International Tribunals – universal jurisdiction conferred by Treaty

2. National courts – customary IL (principal controversy/concern of the topic)

• Distinguish

1. Obligation to exercise universal jurisdiction

• Arts 49,50, 129, 146 Geneva Convention

• Arguably, not part of customary IL – not applicable to non parties

2. Right to exercise universal jurisdiction

• Arrest Warrant Case–Higgins et all: Gen. Conv. inaccurately termed ‘universal jurisdiction’ – a principle of obligation, whereas Belgium argues it has a right to issue & circulate arrest warrants based on univ.jur.

• Quasi Universal Jurisdiction?

• Arrest Warrant Case (Congo v Belgium) – B issued arrest warrant in absentia for Cong. Min. for grave violations of HR/war crimes on the basis of univ. jurisdiction (enacted under nat.’l law for such offences); since Min. not in Belgium, arrest warrant transmitted to Interpol; Congo contested jurisdiction on the basis lack of jurisdiction in IL + dip.immunity(successful – 13/3).

Higgins et al: no provision for ‘true’ universal jurisdiction in treaties; only ‘quasi’.

1. Geneva Conv. 1949 – obligation to search for persons who committed grave breaches & bring them, regardless of nat.’l, b/f own courts or hand to another contracting party but could be interpreted as obl. to search for offenders on own territory only = no true univ.jur.

2. Art 4(1) Hague Conv., Art 5 Conv. against Torture – broad extraterritorial jurisdiction + provision for state in whose territory D is found to prosecute/extradite = obligatory territorial jurisdiction over persons/acts committed elsewhere – no true univ.jur.

• No established practice of universal jurisdiction = all cases envisage some form of link + agree with Oppenheim: no clear principle but indications of gradual evolution

President Guillaume: customary IL recognises only piracy as true case of univ.jur. + int. conv. provide for subsidiary univ.jur. (obl. to extradite or prosecute) but universal jurisdiction in absentia is not known to IL. Univ. jur. = judicial chaos, encouragement of arbitrariness for benefit of powerful, a step backwards in IL. Extraterritorial crim. jurisdiction exists only where:

1. D/V is a nat.’l

2. crime threatens nat.’l security

3. piracy or subsidiary univ.jur. in a treaty

• Roger O’Keefe: universal jurisdiction is not a unitary concept: prescriptive & enforcement division. No universal jurisdiction in absentia – rather, jurisdiction to prescribe in absentia (Guillaume’s bad terminology). ‘True’ universality = silly terminology; all that’s required is that D is subsequently present in state’s territory.

• Antonio Cassese – no absolute universality in customary IL but only ‘conditional universality’ (moderate conception of universality as default jurisdiction) – it’s only triggered when territorial/nat.’l state fails to act + prosecuting state shows sufficient link with the offence. No prohibition on further development but only possible when IR become more geared towards realisation of universal values.

• George Fletcher– universal jurisdiction is unwise & unjust; it reverses the hierarchy of interests at play in trial from D V state community TO V state D...