#16801 - Jurisdiction And Immunities - Public International Law

Jurisdiction and Immunities

JURISDICTION

Jurisdiction is the legal power of states to regulate persons, objects, and events.

Every state has prescriptive jurisdiction — this is the power of every state to bring any matter within the cognisance of its national law. Therefore, in principle, an unfettered power to claim jurisdiction over any matter exists (the Lotus Case). However, this is curtailed by the jurisdiction to enforce, which can only take place within a state’s own territory: even though a state has prescriptive jurisdiction in the territory of another state, it cannot enforce in the territory of another state, (the actual exercise of jurisdiction such as the operation of police, courts, etc.) (the Lotus case). Note that there may be express agreements allowing such enforcement (eg: UK/Netherlands agreement 1999, allowing the trial of Lockerbie subjects in Dutch territory, but by a Scottish court according to Scots law).

The jurisdiction of a state within its own territory is complete and absolute, over all persons, property, events … NB: the absolute nature of territorial jurisdiction can be modified by certain principles, the most important being immunity from jurisdiction, below in Part B. Jurisdiction is significant because it allows for the lawful coexistence of many sovereign actors: in a system such as international law, it is obvious why this is so essential. It determines how far a state’s authority/laws might reach — in effect, it is every state accepting that certain happenings lay outside of the bounds of their authority. Closely linked to the principles of non-intervention and sovereign equality of states, which themselves offer the foundations of the international legal order.

There are five generally accepted heads of jurisdiction: territoriality, nationality, the protective principle, universality, and passive personality. Some of these offer ‘exceptions’ to the rule in the Lotus case that a state may not exercise its power in any form in the territory of another state, as they provide for instances/set of circumstances where it is permissible for a state to do so.

1. Territoriality

The territoriality principle holds that a state has jurisdiction over offences committed in its territory. This is the central head of jurisdiction. Lord Millett in Arab Bank v Mercantile Holdings said that there was a presumption that ‘UK legislation does not apply to foreign persons or corporations outside the UK whose acts are performed outside the UK’. So states generally accept the territoriality principle. Territory includes a state’s land, maritime masses and airspace. In the seas, jurisdiction over offences committed on board a vessel lies within the flag state, except for piracy and where the offence is injurious to the coastal State (UNCLOS).

Territorial jurisdiction can be divided into objective territoriality and subjective territoriality. Under the former, the state has jurisdiction over offences completed in its territory, even though some element of it took place abroad (eg: in the Lotus case, offence completed in TR territory, as deaths took place there). Under the latter, the state has jurisdiction over all matters commencing in its territory, even if other elements/completion of it takes place elsewhere. In the PQ example we did in the tutorial, the offence of fraudulently selling some fake things online (based on a computer in UK) to the overseas, is an example of an offence committed in various places, so you would have to discuss objective/subjective territoriality — some part of offence definitely took place in the UK, so the UK would have jurisdiction, but some part of it definitely took place in the buying country, so that country would also have jurisdiction.

The position was not always like the above: for example, in the UK, a presumption against territoriality existed where the crime was not completed in the UK. A general rule was that for a crime to have been committed in UK territory, the last event constituting the offence must have taken place in the UK. But this predated the transnational crime era — it was soon realised that the fact that an individual might escape UK jurisdiction because the offence was ‘completed’ abroad even though all preliminary steps were taken in the UK would be undesirable, and legislation was amended to allow for the exercise of jurisdiction in such cases.

Territorial jurisdiction also applies in the case of occupied territories, even though states often try to avoid this as it might overburden their justice system, and the raise the possibility of compensation etc. States have claimed that while they are in occupation of territory abroad, their domestic laws, and by extension their obligations under treaty law are not applicable. ECtHR has consistently held that similar HR obligations are owed to occupied territory, if the occupier is in ‘effective control’ of the territory (Loizidou v Turkey). In the Islands of Palmas Case, Spain ceded the Philippines to the USA, who thought that the Palmas were also incluced; later, Netherlands established a peaceful presence on the island. On the question of who had sovereignty over the Islands, the court held that the peaceful and continuous display of power n the territory was as good as title. (but this is a digression from jurisdiction)

The remaining heads of jurisdiction can be seen as examples of extra-territorial jurisdiction — so may be seen as limited but recognised exceptions to the principle of ‘no jurisdiction to enforce outside your territory’.

2. Nationality

Allows for states to prosecute/regulate their own nationals even for offences committed abroad. Eg: murder/manslaughter in the UK — OAPA 1861 s9 specifically states that this is triable/punishable in the UK if the offender is UK national — it is a choice for the state tho, not an obligation. This will be so even if the offence committed was not an offence in the country it was committed in. But the rationale for the rule is generally that crimes don’t go unpunished where the territorial state is either unwilling or unable to prosecute. In Joyce v DPP, the defendant who had fraudulently acquired British nationality and broadcasted pro-Nazi propaganda in Germany was prosecuted for treason, even though the nationality was acquired fraudulently + offence took place abroad.

Sometimes issues with nationality of companies. As a response to seizure of US diplomatic staff in Tehran, US froze all Iranian assets under its jurisdiction — even those accounts held by US banks and their subsidiaries abroad. In response to martial law in Poland, introduced measures to prohibit material to be supplied in the pipeline construction project — applied to US companies and their subsidiaries, even if abroad. What is the nationality of a local subsidiary of an American company? Tricky.

3. Passive personality

Whereas nationality jurisdiction is concerned with the nationality of the offender, the passive personality is concerned with the nationality of the victim. In the Lotus Case, this was one of Turkey’s grounds for claiming jurisdiction, although the Court did not actually consider whether the principle applied. Higgins warns that the case should be looked at with caution — passive personality was not the basis of the decision; vessel was seen as Turkish territory (which is a view not adopted in any consequent int’l treaty governing collisions in the high seas).

This type of jurisdiction is the weakest claim to jurisdiction because the territorial state’s claim is much stronger in comparison, and there is doubt as to whether the passive personality jurisdiction is part of customary international law. Furthermore, it might prove problematic where an act is a crime in State (where the victim is from) but not in State B. Judge Moore in his dissent in the Lotus Case recognises this problem (and all dissenting judges also reject the passive personality principle): ‘it is unrealistic to hold that a person takes with him the protection of the law of his country and subjects those with whom he comes into contact to the operation of that law’. This head of jurisdiction was not included in the Harvard Research Draft Convention.

However, attitudes have changed: certain treaties such as the UN Torture Convention allow for this, and the USA has increasingly exercised passive personality jurisdiction with regard to terrorist attacks against US nationals abroad, justifying its actions by stating that the territorial state were unable/unwilling to prosecute terrorists — eg: US v Yunis (plane hijacking American citizens case). Higgins states that the revived interest in invoking PPP has been against the background of international terrorism, with states either by reason of political sympathy with the terrorist, or out of fear of inviting further attacks, being reluctant to exercise jurisdiction. ‘Accordingly, other states with a direct legal interest in the events and a strong political belief in the need to combat terrorism have sought to identify a possible basis for asserting jurisdiction themselves.’

Nevertheless, the offences which the victim’s state may want to exercise jurisdiction on will probably fall under one of the other heads: protective/universality, and therefore we don’t need a general rule that allows for all victim situations to be prosecuted by the victim’s state.

4. Protective principle

It is recognised that states may assert authority over matters which produce deleterious effects on the STATE irrespective of the nationality of the offender/location of the commission...