Sovereignty and Jurisdiction
Sovereignty and Jurisdiction
Sovereignty and Jurisdiction
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.
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What power do states have to make
rules?
Sovereignty Jurisdiction
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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’
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Nationality Jurisdiction
Protective jurisdiction
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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.
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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
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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.
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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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