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Jurisdiction, p. 101ff
 The power of a state to exercise jurisdiction is not
 National jurisdiction is divided into legislative jurisdiction,
also called prescriptive; adjudicative; or executive (the
latter two are sometimes called enforcement jurisdiction).
 U.S. law students have already been introduced to the
principles of jurisdictional limitation at the internal national
level in Civil Procedure classes when students study the
limits of state (such as California or New Hampshire)
jurisdiction. In order to demonstrate a basis for jurisdiction
in a US state, what needs to be shown? What U.S. law
requires such limitations?
 At the international level, for example, do you think the
French legislature could pass a law making it illegal for and
Italian to kill another Italian in Rome? Why?
Bases for State Jurisdiction
 In order for a State to exercise jurisdiction,
there must be one, or more of the following
jurisdictional bases: Territorial; Nationality;
Passive Personality (victim nationality) in
limited circumstances; Protective; or
 We shall study each of these bases.
The Territorial Principle
 When persons, organizations or activities are
within a state’s territory then that state can
legislate, adjudicate and enforce its regulations
with respect to those persons, organizations or
activities. The difficult cases arise when a state
tries to regulate persons, organizations or
activities located outside the state when the state
determines that those entities or activities have an
effect within the state. For example, when OPEC
sets the price of oil, the price set for oil has a world
wide effect. Does that mean that every nation can
regulate the activities of OPEC?
U.S. v. Aluminum Co. of America Limited
(a Canadian corporation)
U.S. Ct of Appeals 1945
 What acts, in general does the U.S. Sherman Act prohibit?
 Describe the “Alliance” that the Canadian Aluminum
Company had formed.
 What was the 1936 agreement designed to do?
 Why did the court decide that the activities of the Alliance
were in violation of the Sherman Act?
 Do you think that the Canadian, French, German, Swiss
and British companies, who had formed a company in
Switzerland, and who met in Europe to decide upon their
trading policies should be subject to US law, in light of the
fact that the laws of their own countries did not prohibit
what they were doing?
The Nationality Principle
The state may assert jurisdiction over a
person or entity on the basis of nationality,
even if the person or entity happens to be
outside the state of citizenship.
If you are a US citizen, which US laws apply
to you, because you are a US citizen, even
when you are outside the US? If you are
citizen of another country, which laws of
your country apply to you even when you
are outside your own country?
Passive Personality
(Victim Nationality) Jurisdiction
 This basis of jurisdiction permits the state to assert jurisdiction based
on the nationality of the victim of the acts prohibited but it is only
permitted in limited circumstances. For example, the U.S. could not
assert jurisdiction over the usual type of criminal murder of a US citizen
that took place outside the U.S. Nor could China assert jurisdiction over
the murder of a Chinese citizen that occurred in Paris or New York. If,
however, a plane with U.S. passengers was hijacked, the US could
make the hijacking illegal under its law, even though the criminal was
not a U.S. citizen and the hijacking had not occurred in the US.
Similarly, China could prohibit and prosecute such activities where
some of the passengers were Chinese even though all of the activities
occurred outside China and the perpetrator was not Chinese. The
question of getting hold of the perpetrator is a different issue. Merely
because a state has a good basis for the assertion of jurisdiction, that
does not give the state the right to enter another country and capture
the alleged perpetrator.
U.S. v. Fawaz Yunis, a/k/a Nazeeh
U.S. Ct. of Appeals 1991
 What was it alleged that Yunis had done?
 How did Yunis end up in the US? Why didn’t
the method of Yunis’ capture defeat the
court’s jurisdiction?
 What was the basis for US jurisdiction?
 Which other nations could have tried Yunis?
 How broad is passive personality
The Protective Principle
 Certain activities may be perceived as threatening the
security of the state and thus the state may prohibit such
activities even if they are carried on outside the state by
non-nationals of that state. For example, using the
protective principle, Sweden could pass laws prohibiting
counterfeiting of the krona by anyone, anywhere in the
world. (Note: the mere fact that a state has legislative
jurisdiction to prohibit an activity outside the state DOES
NOT permit that state to capture the alleged criminal
unless the criminal is within the state or unless the state
can otherwise get personal jurisdiction over the person,
such as through an extradition treaty. )
US v. Bin Laden
U.S. District Ct 2000
 What had the defendants allegedly done?
 Why did the court determine that the acts
and persons were within the permissible
scope of US jurisdiction? (and that the
legislation prohibiting such acts was
intended to reach foreign persons carrying
out activities in foreign states?)
The Universality Principle
 All the other bases of state jurisdiction require some sort of
connection with the state asserting jurisdiction. Some
activities are considered so evil that the international
community has waived the usual requirement of a
connection with the forum state and has permitted any
state that gets hold of the alleged perpetrator of such acts
to try the person, even though the acts did not occur in the
state’s territory, the person is not a national of that state,
the victims are not nationals of that state and the state’s
security is not threatened by the activity. The types of
activities that permit universal jurisdiction are genocide,
war crimes, crimes against humanity, torture, slavery,
piracy, operating a stateless vessel.
A-G of Israel v. Eichmann
Judgment of the Supreme Court of Israel
 How did Israel get personal jurisdiction over Eichmann?
 Run through all of the possible bases of jurisdiction that
Israel might have asserted to establish jurisdiction over
Eichmann for the murder of Jews and others occurring in
Europe during WWII (1939-45).
 Which, if any, of these bases do you find convincing?
 Why did the court refuse to decline jurisdiction on the basis
of Israel’s violation of Argentina’s sovereignty? Why
shouldn’t the remedy for that violation run to the
 Which other countries might have had a better basis for
trying Eichmann? Would they have provided a better
Arrest Warrant Case
(Congo v. Belgium) 2002 I.C.J. 3
 What crimes did the arrest warrant issued by
Belgium accuse Yerodia of committing?
 What was the basis for Belgium’s assertion of
jurisdiction over Yerodia?
 Who was Yerodia and where did his alleged
crimes take place? Against whom were the
alleged crimes committed?
 The ICJ upheld the right of immunity for Yerodia
(see the ICJ immunity decision at pp. 164ff.) so it
did not discuss the basis of Belgium’s jurisdiction,
although several separate opinions did so.
Arrest Warrant Case: Joint Separate Opinion
of Judges Higgins, Kooijmans & Buergenthal
These judges thought the Court should have ruled on the legitimacy of
Belgium’s jurisdiction before considering the issue of immunity and
noted that the arrest warrant must have been based on universal
jurisdiction as the Belgian legislation permits the assertion of universal
jurisdiction for serious violations of international humanitarian law (the
laws of war) without any connection to Belgium. Other states’
legislation for prosecuting war crimes requires some connection with
the forum or indicates which treaty must have been violated. Case law
also requires a connection with the forum or a treaty violation. The
Geneva Conventions require prosecution or extradition of persons
found within their territory accused of grave violations of the
 Q: Must the accused be in the territory of the state asserting jurisdiction
to validate universal jurisdiction? Had Belgium actually asserted
jurisdiction by issuing an arrest warrant or was it simply preparing to
assert jurisdiction?
Arrest Warrant Case: Joint Separate Opinion of
Judges Higgins, Kooijmans & Buergenthal continued
 Q: Are these judges endorsing universal jurisdiction or not?
If so, in what circumstances?
 Note: In 2003, Belgium restricted its jurisdictional statute
after some members of NATO threatened to call for moving
the HQ of NATO out of Brussels.
 Q: What does this hostility to, or reluctance to address the
legitimacy of, universal jurisdiction teach us about that basis
for jurisdiction?
 What is extradition? Does it require a treaty?
 US v. Alvarez- Machain, 504 U.S. 655 (1992)
 What was it that A-M was alleged to have done?
 How did A-M come to the US?
 Why didn’t the US use the US-Mexican extradition treaty to
get custody of A-M?
 What is the rule of specialty?
 What was A-M’s central argument?
 Why didn’t that argument work?
 Do you agree with the Court’s interpretation of the USMexican extradition treaty? Why did Justices Stevens,
Blackmun and O’Connor dissent?
 Q: If you represented State X that had an extradition treaty
with the US with essentially the same language as the USMexican treaty, what language would you want inserted
into a revised treaty?
Immunity from Jurisdiction: Diplomatic Immunity:
Read The Vienna Convention on Diplomatic
Relations, Epps, Doc. Supp. p. 127ff
 Why give diplomats immunity at all?
 How broad is diplomatic immunity under the
Convention? See VCDR arts. 23, 29,31, 39(2).
 What if an ambassador murders someone while
s/he is serving as ambassador abroad? What can
the host state do? See VCDR arts. 9, 32(1).
 What about the embassy buildings, the diplomatic
papers and the diplomatic bag? See VCDR arts.
22(1), 24, 27, 30.
 Should the scope of diplomatic immunity be
narrowed? If so, how?
US Diplomatic and Consular Staff Case
(U.S. v. Iran) 1980 I.C.J. 3
 What happened to give rise to this case?
 Why was Iran responsible for the actions of the students?
 Which provisions of the VCDR (and the VCCR) were
found to have been violated by Iran?
 Why did the Court not accept Iran’s argument that US
interference in the internal affairs of Iran (allegedly through
the CIA’s engineering the overthrow of the government
headed by Dr. Mossadegh in 1953 and then substituting
the Shah) justified the embassy and consulate seizures?
Knaab [representative of Waltrick’s estate] v.
Republic of Georgia
U.S. District Court 1998
 If a foreign diplomat commits a serious crime, can
the host state ever prosecute the diplomat?
 Who was Makharadze? How was it possible that
he had been convicted of crimes in the U.S.?
 What is the gist of Knaab’s complaint?
 Why did the court dismiss the complaint even
though Makharadze was no longer a diplomat and
the Republic of Georgia had waived his immunity
for the criminal case?
Case Concerning Armed Activities on the Territory of
the Congo
(Democratic Republic of Congo v. Uganda)
2005 I.C.J.--- (Uganda’s second counter-claim)
What was Uganda’s claim?
 Does the VCDR apply during armed
conflict? Does this make sense?
 How could Uganda represent the claims of
both Ugandan citizens and noncitizens?
Consular Immunity
 Read the Vienna Convention on Consular
Relations, Epps Doc. Supp. p. 141ff
 How is the scope of consular immunity
different from the scope of diplomatic
 Could a consular officer be prosecuted for
murder or drug dealing if the consul’s state
refused to waive his/her immunity?
Head of State and Other Ministers’ Immunity
Regina v. Bow Street Magistrates Ex Parte
Pinochet, House of Lords, UK 1999
Who was Pinochet?
How did he get to the UK?
What did Spain have to do with the case?
What crimes did Spain accuse Pinochet of
 What was the basis for Spain’s jurisdiction? Is
such a basis for jurisdiction a good idea?
Head of State and Other Ministers’ Immunity
Regina v. Bow Street Magistrates Ex Parte
Pinochet, House of Lords, UK 1999 continued
What is an extradition treaty?
What is the double criminality principle in
extradition treaties? How does the UK apply the
double criminality provision?
What was the scope of immunity accorded to
Pinochet? What law establishes this immunity?
Finish this sentence: The UK court upheld
immunity on all claims against Pinochet
Why was Pinochet never sent to Spain?
Pinochet died in 2006 before the Chilean cases
were concluded.
Arrest Warrant Case
(D.R.Congo v. Belgium)
2002 I.C.J. 3
 What crimes was Yerodia alleged to have committed?
 On what basis did Belgium assert jurisdiction over
 Finish this sentence: The Court upheld immunity from
Belgian jurisdiction for Yerodia because ……….
 On what sources of law did the Court rely?
Arrest Warrant Case
(D.R.Congo v. Belgium)
2002 I.C.J. 3 continued
 Why was Belgium not permitted to be a persistent
 Why did the ICJ not find the statutes of Nuremberg, the
ICTY, ICTR and ICC, which accord individual culpability to
persons even if they hold high government positions,
 Suppose Belgium wanted to try Yerodia for torture
occurring before he became FM. Would he still have
immunity? When would his immunity cease?
 If the Pinochet case came before the UK or any other
national courts today, do you think that the Arrest Warrant
Case would require the court to accord Pinochet immunity?
What remedy did the Court order?
 There is a blistering dissent in this case by Judge ad hoc
Christine Van den Wyngaert.
Immunity of International
 Before a major international organization,
particularly a governmental international
organization, will be willing to locate offices or
headquarters within a particular state, the
organization will want to enter into a treaty with the
host state spelling out certain immunities from the
jurisdiction of the host state for persons employed
by the organization or traveling to the organization
to take part in its activities. For example, the U.S.
has such a treaty with the United Nations
regarding the UN headquarters in New York.
Sovereign Immunity and
The Act of State Doctrine
 What is Absolute Foreign Sovereign Immunity and What is
Restrictive Foreign Sovereign Immunity and what theory
underlies these concepts?
 What view of foreign sovereign immunity in US courts is
favored by Legal Adviser Tate? Why does he take this
 Many developed states now have legislation governing the
scope of immunity for foreign sovereigns in their courts.
For example the U.S. Congress has passed The Foreign
Sovereign Immunities Act of 1976 which adopts the
restrictive theory of foreign sovereign immunity.
 What is The Act of State Doctrine?
Problem p. 177-178
 First read The Nottebohm Case
(Liechtenstein v. Guatemala) 1955 I.C.J.4 at
pps. 270-275.
 Then read the problem on pps. 177-178.
 Next, answer questions 1 and 2 on p. 178.
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