Jurisdiction of States in Public International Law

JURISDICTION OF STATES IN PUBLIC INTERNATIONAL LAW Jurisdiction power, authority, competence of the State under international law to regulate
or otherwise impact upon people, property and circumstances when can a State (primarily its domestic courts) lawfully take action with respect to persons, things and events? International aspect: when can organs/courts of one State lawfully act over a citizen, corporation or organisation of another State? issues of STATE SOVEREIGNTY (State is not subject of authority of others) and EQUALITY OF STATES (States cannot infringe on sovereignty of others) existence of sufficient connection or genuine link between the State and event/person over which it wants to claim jurisdiction.
Depending on the nature of that link, there are several acknowledged principles based on which jurisdiction can be exercised.
JURISDICTION
OF
STATES
IN
CRIMINAL MATTERS
JUDICIAL, LEGISLATIVE AND ADMINISTRATIVE COMPETENCE Five bases of criminal jurisdiction: Territorial principle, Nationality principle, Protective principle, Passive personality principle and Universality principle 1. TERRITORIAL principle The State can exercise jurisdiction over persons and events within its territory Most important Universally recognised Consequence of territorial sovereignty Practical advantages (investigation, availability of witnesses)
Subjective and objective territorial principle
For events that begin in one state and are completed in another (e.g. firing a shot on one side of the border and killing a person on the other side) both states will have jurisdiction: the state where the even commenced based on the subjective territorial principle and the state where the act was completed based on the objective territorial principle (also called the effect doctrine) Lotus Case1, ICJ: offences, the authors of which at the moment of commission are in the territory of another State, are nevertheless to be regarded as having been committed in the national territory, if one of the constituent elements of the offence, and more especially its effects, have taken place there. The Lotus case - expansion of the territorial principle is not illegal in international law: Far from laying down a general prohibition to the effect that States may not extend the application of their law and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules. As regards other cases, every state remains free to adopt the principles which it regards as best and most suitable. Convention on the Suppression of Counterfeited Currency Convention for the Suppression of Illicit Traffic in Dangerous Drugs
2. NATIONALITY principle (ACTIVE PERSONALITY principle) The State can exercise jurisdiction over its nationals anywhere in the world Important in circumstances where borders are less significant (EU, travel) Universally accepted
3. PROTECTIVE principle The State can exercise jurisdiction over crimes that affect its important interests (national security) Accepted to an extent but some States can interpret their security too broadly (e.g. Ayatollah Khomeinis fatwa against Salman Rushdie for his Satanic Verses in 1989) Not to be confused with diplomatic protection (right of a state to intervene or raise a claim against a state on behalf of its nationals)
Facts of the case: Collision on the high seas between and Turkish and French ship. As a result of the collision the Turkish vessel sank and a number of crew members and passengers drowned. The French ship put into port in Turkey and a number of French crew members were arrested and tried and convicted of manslaughter. France objected to Turkeys exercise of jurisdiction and case went to PCIJ.
4. PASSIVE PERSONALITY principle The State can exercise jurisdiction over persons and evens provided the victim is its national Not widely accepted (e.g. US and UK used to object to it but are using it more for terrorism) If a national of a state has been a victim of a crime in another state, it does not necessarily concern the general interests of the home state
5. UNIVERSAL JURISDICTION principle The State can exercise jurisdiction over certain crimes regardless of territory, nationality of perpetrator or victim no connection required Controversial if applied for all crimes Accepted for most serious crimes (war crimes, piracy, hijacking, terrorism) which threaten international community as a whole (e.g. Eichmann trial)
The Congo v. Belgium case (International Court of Justice, 2000) Which principle to choose? The most persuasive one.

Jurisdiction of States in Public International Law

Uploaded by

Copyright:

Available Formats

Jurisdiction of States in Public International Law

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Jurisdiction of States in Public International Law

Uploaded by

Copyright:

Available Formats

JURISDICTION OF STATES IN PUBLIC INTERNATIONAL LAW Jurisdiction power, authority, competence of the State under international law to regulate

Subjective and objective territorial principle

You might also like