#14984 - Jurisdiction And Immunities - Public International Law

‘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.

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.’”

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 offences committed there by foreigners.” Turkey had jurisdiction over this case

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 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).

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.

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...