Sovereignty and Jurisdiction

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Sovereignty and

Jurisdiction
Leo Bernard, ANCORS

What is sovereignty?
“Sovereignty in the relations
between States signifies
independence.
Independence in regard to a
portion of the globe is the
right to exercise therein, to
the exclusion of any other
State, the functions of a
State.”
(Island of Palmas case,
Netherlands v US, 1928)

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Sovereignty
• Sovereignty is the exclusive right to exercise supreme
political authority (legislative, judicial and executive)
over acts and events within a territory.
• Since it is the exclusive right, it means that no other
State can have formal political authority within that
State.
• Therefore, sovereignty is closely associated with the
concept of political independence.
• This right is usually described as “territorial
sovereignty”.

Sovereignty Claims
• Classical international law developed doctrines by which
States could make a valid claim of sovereignty over territory.
• During the period of Western colonial expansion new
territories and islands were subject to claims of sovereignty
by discovery and occupation.
• Sovereignty could also be transferred to another State by
conquest (use of force) or by cession.
• If the Western colonial powers recognized a ruler in an
overseas territory as the sovereign, they would often enter
into a treaty of cession with the ruler by which sovereignty
over the territory would be ceded in to the Western colonial
power.
• Problems often developed because the peoples in those
territories did not fully understand the Western European
concepts of sovereignty and cession.

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Territorial Sovereignty
• States have sovereignty over their land territory and
over the airspace above their land territory.
• The land territory includes off-shore islands if they are
naturally formed areas of land which are above water
at high tide.
• Among the attributes of sovereignty is the right to
exclude foreigners from entering the territory, which is
traditionally referred to as the right to exclude aliens.
• Thus, the entry into its territory or airspace by the
armed forces of another State without consent is a
prima facie breach of international law.

Consent to International Rules

• Sovereign equality of States means that


International law applies only on the basis of
consent
• There is no higher authority or legislature
• Horizontal structure of legal system
• … so how can international law rules be made?

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What power do states have to make
rules?

• Ie. when and where is a State able to make and


apply its own laws?
• This is a question of Jurisdiction: the ability of a
State to make and enforce laws through its
national legal institutions.
• Two types of jurisdiction:
• Prescriptive – the power to regulate an activity or
behaviour
• Enforcement – the power to enforce rules – ie to arrest,
try, convict and punish for infringements

Sovereignty Jurisdiction

Exclusive Right to Jurisdiction is the


Exercise Supreme power of a State to
Political Authority govern its persons and
(legislative, judicial and property by its national
executive) over acts and laws
events within a territory

States have sovereignty


over their land territory, Prescriptive Enforcement
airspace above their land Jurisdiction Jurisdiction
territory

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Bases of jurisdiction under International Law

• Territory

• Nationality

• Protective

• Universal

• Passive Personality

Territorial Jurisdiction
• ‘A nation possesses and exercises within its
own territory an absolute and exclusive
jurisdiction’

• The ‘effects doctrine’ - claim jurisdiction over


activities outside its territory which have an effect
within its territory

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Nationality Jurisdiction

• A state retains jurisdiction over its national


wherever they are:

• Most civil law countries extend their criminal law


to cover their nationals while abroad.

• Common law countries usually extend their


criminal laws to the actions of their nationals while
abroad only in exceptional cases such as
offences against the State and terrorist acts.

Protective jurisdiction

• Jurisdiction over acts committed outside their


territory that are prejudicial to its security, such
as treason, espionage, and certain economic
and immigration offences.

• Almost all States claim jurisdiction under the


protective principle

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Universal jurisdiction
• It is accepted that there is a narrow category of
crimes over which States may assert jurisdiction
based upon the universality principle.

• All States have jurisdiction over offenders, no


matter their nationality and no matter where the
offence was committed.

• There is universal jurisdiction over crimes such


as genocide and war crimes, giving any State
which the right to assume jurisdiction.

Passive personality jurisdiction


• The most controversial basis for jurisdiction is the
passive personality principle, which establishes
jurisdiction based on the nationality of the victim.
• Very few States attempt to extend the reach of their
criminal laws to situations where there only link to
the crime is that their national was the victim.
• However, there is a recent trend to base jurisdiction
based on the passive personality principle when a
State’s nationals are the targeted by terrorists.
• Modern counter-terrorism treaties establish
jurisdiction among State Parties based on the
presence of the offender within their territory.

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Principle of Territorial Jurisdiction
All States have both prescriptive and enforcement jurisdiction over
all persons, property and events occurring within its territory

Principles of Extraterritorial Jurisdiction under


International Law

Nationality Passive Protective Universal


Personality Personality Jurisdiction
States are States are
allowed to States are allowed to States are
prosecute its allowed to prosecute a allowed to
nationals for prosecute a limited range of prosecute
crimes for foreigner for a crimes certain crimes
crimes crime committed committed by committed by
committed outside its foreigners foreigners
anywhere in the territory against outside its outside the
world one of its own territory where State’s territory
nationals the crime and having no
prejudices its impact on the
vital interests State

How does this work in the Maritime space?


• Territory – land territory is the basis of maritime
zones
• Nationality - states have jurisdiction over
individuals and ships that hold their nationality
(for ships, this is the state they are ‘flagged’ to)
• Other bases
• Universal – eg Piracy

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Concurrent Jurisdiction
• If two or more States have jurisdiction over a
particular offence, they are said to have concurrent
jurisdiction.
• In such cases the State which is most likely to
prosecute the offender is the State which has
custody over him.
• No State may exercise jurisdiction in a place under
the territorial sovereignty of another State.
• States enter into bilateral treaties to provide for the
extradition of alleged offenders from one State to
another.

Immunities from Jurisdiction


• The principle of sovereign equality of States requires that
the official representatives of one State should not be
subject to the laws of another State.
• For example, the law of the sea provides that warships on the
high seas are subject only to the jurisdiction of the flag State.
• Warships may never by intercepted and boarded by another
State, even if they commit acts contrary to the laws and
regulations of the coastal State.
• However, if a warship violates the right of innocent passage, it
may be escorted out of the territorial sea by warships of the
coastal State.
• The principle of State immunity or sovereign immunity
provides that foreign sovereigns enjoy immunity from the
jurisdiction of other States.

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Diplomatic Immunity
• The principle of diplomatic immunity provides that the
diplomatic agents of the sending State have complete
immunity from the criminal jurisdiction of the receiving
State.
• The immunity of the diplomatic agent is not personal to
the diplomatic, but belongs to the State.
• Therefore, the immunity of a diplomat can be waived by
the sending State.
• Also, the receiving State has the right to expel any
diplomatic agent from its country by declaring them
persona non grata.

Foreign Embassies
• A foreign embassy is under the territorial sovereignty of
the receiving State, and the laws of the receiving State
apply to acts within the embassy.
• However, diplomatic relations law provides that the
premises of an embassy or diplomatic mission as well as
its records and archives are inviolable.
• This means that the authorities of the receiving State
cannot enter a foreign embassy without the express
permission of the head of mission, even in the case of an
emergency.
• Similarly, “diplomatic bags” are inviolable and cannot be
opened by the receiving State.
• This is necessary to ensure that the embassy officials can
communicate with their home country in secrecy.

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Questions?

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