Project-

JURISDICTION BASED ON NATIONALITY AND THE

PROTECTIVE PRINCIPLE IN INTERNATIONAL LAW

BBA LLB
Semester V

Submitted by
Gaurav Kataria (22llb014)

Submitted to
Dr. Tavleen Kaur

THE NORTHCAP UNIVERSITY

GURUGRAM- 122017

INTRODUCTION

Jurisdiction is the very basic concept of international law on the means by which a state
asserts a claim to dominion over people, enforces law, and metes out justice within its
territorial confines. In a web of ever-deepening interdependence, states assert their
jurisdiction farther afield than ever-in two core principles: nationality-based jurisdiction and
the protective principle. These two principles reflect the interest of a state to manage the
activities of its citizens and to protect its national security. It seeks to discuss the legal basis,
application, relations, criticisms, and impact of these principles in modern international law.

I. Authority Based on Nationality

A. Introduction and Important Concepts Jurisdiction on the basis of nationality, also called
nationality jurisdiction, grants the state the power to exert its sovereign powers against its
nationals everywhere. This principle was borrowed from the proposition that a state has an
interest in what its nationals do because, often, their actions may have ramifications
concerning the country's reputation, security, and overall welfare.
The most general notions of nationality jurisdiction are based on sovereignty and state
responsibility. In other words, this means that a country is liable for the acts of its nationals.

B. Legal Bases

The legal basis of nationality jurisdiction is not simple since it spans national laws,
international treaties, and customary international law:

Most countries have enacted legislation that allows it to levy charges against its citizens for
crimes committed abroad, including:Under the Alien Tort Statute, U.S. citizens are not spared
from taking any person to court for committing crimes under international law.France, Italy,
and many more countries have criminal law parts that permit persons to try citizens for grave
offenses committed outside such countries.

International Agreements: The concept of nationality jurisdiction is accepted by most

international treaties. For example:There is the United Nations Convention Against
Corruption, which binds states to hold nationals accountable for the corrupt action where that
action takes place. The Rome Statute of the International Criminal Court holds a state liable
to hold citizens accountable for such international crimes as genocide and war crimes even
though these were committed elsewhere.

Customary International Law: Over the years, it is quite evident that states accept and work
under the principle of nationality jurisdiction. They begin to understand the reality that they
cannot escape from the liability of their citizens for the acts violating international law.

C. Practical Applications

1. Criminal Law

Nationality jurisdiction is very aptly working in criminal law by countries. They tend to
prosecute their nationals for the committed serious crimes abroad.

Case Study: In R v. Youssef, it was alleged that a UK national had become a member of a
foreign terrorist organization in Syria. To his disadvantage, the UK government's claim of
jurisdiction based on the nationality of the state or of the accused was upheld.

2. Civil Law

Apart from criminal matters, nationality jurisdiction can also be invoked on civil cases and
redress to nationals against nationals for wrongs committed abroad.
For example, a German national who has committed fraud in South America may be sued by
the victims of fraud in Germany on the ground that the courts of Germany have jurisdiction
there under the nationality principle.

D. Problems and Grievances

While providing a resource for the state to defend justice, nationalism jurisdiction also gives
raise a whole lot of problems:

Problems of Enforcement: Difficulty in enforcing state law against citizens who live in
another country, because the other country may not want to cooperate, or may not have an
extradition treaty.

Conflict of Laws: States may define crime differently, which poses a problem when a state
attempts to charge a person for behaviour that is legal elsewhere.

Human Rights Issues: The use of nationality jurisdiction can then violate the standards of
international human rights in that people who would be persecuted or have unfair trials are
readily returned in a country.

Diplomatic Tensions: The use of nationality jurisdiction may create diplomatic rows,
particularly if the act is considered an insult to the sovereignty of another state by a foreign
state.

II. THE PROTECTIVE RULE

A. DEFINATION AND LEGAL BASICS

The protective principle confers on a country the principle of sovereignty over foreigners for
their acts outside its territorial borders, whether such are de facto or presumed likely to
endanger the national security or well-being of the country. That is the common sense
underlying this principle, for it presupposes that a country has a right to defend itself against
acts likely to imperil its people or compromise its stability.

1. Legal Principles:

In principle, the protective principle is recognized in various legal circumstances. Some are
as follows:

National Laws
Most countries have included the protective principle in their domestic laws. This enables
them to prosecute aliens for crimes against their national security.

International Treaties: Several of the treaties clearly articulate the protection principle. For
instanceThe Convention on the Prevention and Punishment of the Crime of Genocide permits
states to do whatever is necessary against individuals whose actions are threatening
international peace and security.

2. Customary International Law

For the second time, the principle of nationality jurisdiction is more cogent than the
protective principle and though not in general recognized, is admitted under international
law-in particular concerning national security and anti-terrorism concerns.

USES OF THE PROTECTIVE PRINCIPLE

The protective principle finds wide application in cases related to national security threats,
such as:

Terrorism: States often claim jurisdiction over extraterritorially domiciled nationals who
commit acts of terrorism against their citizens, although such an act occurred outside of their
territory. The United States has brought alien nationals to justice for plotting to strike against
American interests abroad by applying the protective principle as grounds for such actions.

Espionage: States may bring a person to justice for espionage-related acts that can jeopardize
its national security, even if such an act did not occur within the borders.

Drug Trafficking: Country-to-country trafficked drugs that cause danger to the health of the
people can also invoke the claim to jurisdiction under the protective principle.

C. CASE STUDIES

United States v. Ali is a case of a man outside U.S. but was alleged to aid and abet a known
terrorist organization against the United States. The case was presided over by the U.S. court
that held the U.S. government had a right to assume dominion because it presented a regional
entity where national security must be preserved.

United States v. Ponce: In this case, the facts revealed alleged narcotic trafficking by an alien
endangering the health of U.S. persons and the community. Protective principle was used to
assert sovereignty, whereby the state demonstrated its seriousness towards fighting
international drug trafficking.

D. ISSUES AND LIMITATIONS

Although the principle of abstention is a very important tool of states while protecting their
interest, this principle still has certain limitations:

Ambiguity and Misuse: The protective principle is defined in such ambiguous terms that
cause multiple opinions on what may constitute a threat to national security. Such ambiguity
brings concerns about possible misuse to attack political opponents or violate human rights.
Sovereignty Issues: Applying sovereignty on the protective principle can be a technical way
of violating some other country's rights, hence causing diplomatic tensions and issues.

International Cooperation: International cooperation was the only way the protective
principle could often be applied effectively, which, in this case, was frustrated by geopolitical
tensions or varying standards of applicable law.

III. Interplay of the Principles

A. Complementarity

Jurisdiction based on nationality and the protective principle are often complementary to one
another as a means of resolving international law issues:

Working Together in Use: Both ideas present a wish by a state to keep citizens and land safe.
For example, a citizen with criminal activities outside of the country could be charged under
both ideas if such crimes threatened national security.Doctrines can also reinforce each other.
Nationality jurisdiction enables countries to hold their citizens liable for activities that may
also use the protective principle.

B. Issues and Problems

Jurisdictional Conflict of Laws: In this case, a state can exercise jurisdiction under nationality
while another country can claim jurisdiction under the protective principle. This situation will
create vagaries and conflicts in law that may bog down the relations between the states.
Assertions of supremacy are problems of alienage under both principles. The states reach out
to their extraterritorial domains by assuming their laws to apply upon the people of other
countries for acts performed abroad to the territories of those countries. This process will then
lead to criticisms for imperialism or extension beyond its limits.

C. DIPLOMATIC EFFECTS

The connection of national laws with the rule of protective principle has a few impacts on
diplomacy.
International Cooperation: In enforcing both principles appropriately, it would require the
support of the country. Two countries or many countries can work together in terms of
prosecution concerning crimes that involve crossing borders. Conflict Resolution Talking and
negotiation are very key in solving the conflicts occasioned by competing claims over
territories. International organizations, such as the United Nations, have a very important role
in helping to settle these arguments.

Criticisms and Weaknesses of the Principles: Criticism of Nationality Jurisdiction

Affirmative discrimination to individuals: It has been said that nationality rules operate
disproportionately against individuals. Special persons, the weak, and the marginalized are
most affected. The chances of their unfair prosecution have increased and raise issues relating
to fairness and justice.

Due Process: Those tried under nationality laws may have unfair trials, especially those
cases that stem from strong political opinions. Concerns about the fairness of a court process
can mean the erosion of faith in the prosecution. Selective Enforcements: States may opt to
enforce the rules of nationality discriminatory in nature. This is often as a result of political
motives rather than a true commitment to justice.

Limitations of the Protective Principle Unclear rules and overstepping: unclear rules of
the protective principle can lead to overstepping, whereby states can assert authority for
actions which are not a real threat to national security. This fosters fear and oppression. Risk
of Abuse Even though some states will abuse the protection principle in going after political
opponents or foreign people when their activities are not a real threat, this brings forth
important concerns about human rights.

International Law Conflicts: conflicts with international law can arise because using the
protective principle may infringe upon the rights of other people or the independence of other
countries.

CONCLUSION

Jurisdiction based on nationality as well as the protective principle forms an important part of
international law. These will indicate that countries are concerned with protecting their
citizens and national security. The two principles will continue to give countries the power to
enforce their laws outside of their borders; however, they also raise problems of enforcement
and legal conflicts, as well as human rights concerns. As globalization continues to influence
the legal order, these principles remain important to policymakers and legal experts
worldwide and other interested parties. They will have to balance an assertion of jurisdiction
with respect for rules established under international law in order to serve justice,
accountability, and the rule of law in an ever-more-interconnected world. Summarily,
jurisdiction based on nationality and the protective principle may be applied to the
maintenance of order and security but these themselves require some profound self-
contemplation on the legal rules and cooperation among other nations and protection of
fundamental human rights. The way these principles are evolved with time will decide the
fate of international law and the relations between countries concerning changing
circumstances.