State Jurisdiction To Pass And Enforce Its Municipal Law - International Law

State jurisdiction is the judicial, legislative and administrative competence of a state under international law to govern persons and property.

• This relates to the power of states to enforce their own municipal law.

• There is no distinction in IL between civil and criminal jurisdiction.

Prescriptive jurisdiction

Prescriptive jurisdiction is the capacity of a state to define/assert its municipal law in respect of any issue. This jurisdiction is unlimited, subject to international law to which the state has consented.

Enforcement jurisdiction is the capacity of a state to enforce compliance with its municipal law. A positive basis for enforcement jurisdiction must be shown. Here, it is likely that [state] may argue that it can enforce its laws based on [in general order of hierarchy]:

• Territorial jurisdiction

• Nationality jurisdiction

• The protective principle/effects doctrine

• Passive personality jurisdiction

• Universal jurisdiction.

A state may exercise jurisdiction over all activities occurring within its own territory (limited only by IL such as state and diplomatic immunity).

• Territory includes land, dependent external territories, airspace, ships and aircraft registered in the state, the territorial sea, and (for defined purposes) the contiguous zone, exclusive economic zone and the continental shelf.

• Territorial sovereignty extends to 12 nautical miles (UNCLOS and customary law), and sovereign rights for specified purposes extend to up to 200 nautical miles in an exclusive economic zone (UNCLOS).

Enforcement in the territory of another

A state has presumptive enforcement jurisdiction in its own territory, but may not enforce its law in the territory of another state without its consent (eg, SC declared Israel violated Argentinian sovereignty by abducting Eichmann).

• States may exercise jurisdiction in the territory of another for specified purposes when a co-operative jurisdictional arrangement has been negotiated.

Concurrent territorial jurisdiction

States may have the right to exercise concurrent territorial jurisdiction; however, a country in which the individuals who breached the law are present will have the practical ability to enforce its jurisdiction (Lotus case).

• So long as one of the constituent elements of the offence occurs within the territory, a state may exercise jurisdiction over the act.

• The state where the injury took effect is said to have a subjective territorial jurisdiction, while the state where the act occurred has an objective jurisdiction.

  • Where there is a dispute over the exercise of jurisdiction, the courts are likely to ask with which state the offending act has the most substantial connection.

A state has jurisdiction over the acts of its nationals wherever their acts take place.

• Nationals will also be subject to the laws of the state where the act takes place.

• States have traditionally preferred not to expose their nationals to prosecution for their acts overseas (except for treason, murder and bigamy, or offences against national security).

  • Australia has implemented law punishing child sex crimes taking place overseas: Crimes Act s 50AD.

Is [X] a national of [state]?

1. IL traditionally leaves the grant of nationality to the domain of the state.

2. State practice is to grant nationality on two main grounds: when the child is born nationals or where the child is born in the territory of the state. Also grant nationality to spouse of a national/ through process of naturalisation.

3. If a state brings a claim against another state on behalf of its national, it may be required that the state bringing the claim show there was a ‘genuine connection’ between it and the individual and that there was good faith, at least in cases of dual nationality (Nottebohm case). However, international tribunals have not supported the ‘genuine connection’ test proposed by the ICJ.

The protective principle states that states may assert jurisdiction over the extra-territorial acts of non-nationals where their acts have had negative effects on that state. This is controversial and has only been relied upon in exceptional circumstances relating to illegal immigration, currency offences and treason.

Under passive personality jurisdiction, a state may assert jurisdiction over a non-national for acts taking place elsewhere if he or she injures nationals of the state; that is, the ‘victim’ of the act is a national. This is controversial (see, eg, the Cutting incident).