State Jurisdiction Notes

7. State Jurisdiction Jurisdiction General State jurisdiction refers to the power of a state under international law to govern persons and property by its municipal law (subject natural persons and things to its domestic law). Three forms traditionally: * Legislative (prescriptive jurisdiction): Create rules of general import * Judicial (adjudicative jurisdiction): Authority of the a state to subject particular persons or things to its judicial process * Executive (respectively enforcement): Authority of a state to use the resources of government to induce or compel compliance with its law Public international law limits itself to criminal not civil jurisdiction, because civil jurisdiction is subject of conflicts of law or private international law. Two possible limitations upon a state's freedom to exercise enforcement jurisdiction * The idea of double jeopardy * When a person is placed in a position where under the law of State A he is required to do something which he is prohibited from doing under the law of State B. Prescriptive Jurisdiction over Crimes 5 basic principles * Territorial Principle: Lotus Case *> Determining jurisdiction by reference to the place where the offence is committed - subjective territoriality: creates jurisdiction over crimes commenced within the state even if completed or consummated abroad. - objective territorial principle: jurisdiction is founded where any essential constituent element of a crime is consummated on the forum state's territory: Lotus Case * Nationality principle *> Determining jurisdiction by reference to the nationality or national character of the person committing the offence. - Provides the primary criterion for criminal acts in locations such as Antarctica, where the 'territorial' criterion is not generally recognised. * Passive Personality Principle *> Determining jurisdiction by reference to the nationality or national character of the person injured by the offence. - To protect nationals outside the State's territory. *> Pros and Cons: - This could lead to multiple conflicting claims to jurisdiction where an attack may lead to the deaths of the nationals of many different countries - There may be fair trial issues given the victims are nationals of the state in question and Defendant is a nonnational alleged to do the harm - Pro: seen as a way to fill in the gap and protect nationals when no other state will be able or have the motive to exercise jurisdiction *> Less grounding and inessential to any state if another basis for jurisdiction can be provided for (much weaker than other principles) * Protective Principle *> Determining jurisdiction by reference to the national interest injured by the offence - Interest in protecting itself against acts, even if performed outside of its territory and by persons that owe it no allegiance, that threaten its existence or its proper functioning as a State * Universality Principle: Attorney-General of the Government of Israel v Eichmann *> Certain activities are so universally condemned that any state has an interest in exercising jurisdiction to combat them - Concerns mainly the so-called 'core crimes' of customary international law, including slavery, genocide, crimes against humanity and breaches of the laws of war, and especially of the Hague Convention of 1907 and grave breaches of the Geneva Conventions of 1949. 1 7. State Jurisdiction As a practical matter, whilst States may protest the use of exorbitant prescriptive jurisdiction by others, unless the prescribing State attempts to enforce the jurisdiction claimed, it is unlikely that any substantive legal action will be taken. Territory Principle The fundamental source of jurisdiction. A state has absolute but not necessarily exclusive power to prescribe, adjudicate and enforce rules for conduct that occurs within its territory.This is why it is necessary to determine boundaries. Rules on boundaries * Boundary separating two states is determined by acts of the states expressing their consent to the location. Subjective territoriality * A state has jurisdiction to prosecute and punish crime commenced within the state but completed abroad. Objective territoriality * Jurisdiction is founded when an essential constituent element of a crime is consummated on the forum State's territory: Lotus Case The burden of proof lies on the State who asserts an exercise of national jurisdiction violated international law. Ex-territorial jurisdiction must be exercised with the consent of the States within whom the offence is committed: Lotus Case 1. The case concerned a collision on the high seas between a French Steamer and a Turkish collier in which the latter sank and Turkish crew members and passengers lost their lives. 2. The French steamer having put into port in Turkey for repairs, the officers of the watch were tried and convicted of involuntary manslaughter. Is Turkey is violating a principle of international law by prosecuting a foreign national? What is their basis for doing so? Held,Turkey was entitled to do so based on the territorial principle. The Lotus Case France v Turkey (1927) Vessels sailing on the high seas are subject only to international law and the laws of the flag state. Note, the case is altered by the 1982 Law of the Sea Convention, art. 97: * In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, NO penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. Only France has the jurisdiction because the nationality of the master is France and the flag of the vessel belongs to France. Burden of proof The principle of territoriality does not limit the power of a State to try crimes and, moreover, that any argument against such power must point to a specific rule in international law which negates that power. * Asserts that international law allows the exercise of national jurisdiction unless a specific prohibition on doing so is identified in in international law hence, the burden of establishing that an exercise of national jurisdiction violated international law rests upon the state or person asserting the violation * France has to show that such a violation of IL exists, rather than compelling Turkey to establish a ground for its national jurisdiction * Turkey did not act in conflict with principles of IL because France failed to establish that any of his three arguments exist. Rules of International law flow from the consent of states as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims, Therefore restrictions upon the independence of States can never be presumed. Objective territorial principle adopted -- DECISIVE matter: the place that the effects of the crime occurred Jurisdiction can be determined by looking at the elements [effects] of the crime. It is certain that courts of many countries interpret criminal law in the sense that 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 unilateral and extra-territorial use of enforcement jurisdiction is impermissible. Territoriality of criminal law is not absolute in international law. 2

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