Public international Law – Jurisdiction




Guest Lecturer – International jurisdiction will be assessed and we’re looking at this in the
workshop next week, do at the weekend.
Jurisdiction is highly technical but highly important. About in what ways the state can
exercise its power.
About the capacity to pass, enforce and adjudicate over the reach of laws.
Capacity seems obvious and uncontroversial but in effect when all states exercise
sovereignty jurisdiction there will be a clash.
o International law has created situations where this overlap has result in
conundrums.
o Yahoo case: Boundaries don’t become porous with the internet, they disappear –
what one does in their respective country may result in unntended consequences in
another country.
o Situation which is regulated by American law, falls within the scope of freedom of
speech.
o 1st Ammendment allows for almost unrestricted freedom of expression but many
continental European countries have more restrictions.
o What happens when someone expresses their views on the internet, contrary to
these rules?
o May amount to a crime. Yahoo = Carlifornian internet provider. Not only
incorporated in the US but made there. Effectively what happened here was in
France the local authorities determined any information displayed on the provider
affects France. French courts fined Yahoo for doing something legal in the US but
not in France.
o Prime example of jurisdictional clash – neither did anything wrong, Yahoo didn’t
break laws, France did.
o What to do? Can Yahoo seeks relieve from an American court, asking them not to
give effect to the judgment?
o Yahoo did this, and US courts they didn’t have the jurisdiction to overrule the
decision.
o Sometimes thus, the exercise of different jurisdictional principles results in clashes
that cannot be resolved.
Sovereignty:




Basic principle of international law, and classical principle on which it was built.
Public International law even today views sovereignty as this principle, according to friendly
relations, all nations are sovereign. Doesn’t make much sense to talk about a sovereign state
as each state is sovereign. If a state is not sovereign, it’s not a state.
Would argue state never loses it sovereignty, only its capacity to exercise sovereignty
(occurred in Iraq).
External aspect is capacity of each state to exclude any external interferences, if we were to
define sovereignty we may go to the OCJ Reparations case. ICJ defines sovereignty here as

distinguishing the state from institutions, and having ‘the totality of international rights and
duties recognised by international law residing in an independent territorial unit’
Legal quality inherent in statehood.
Jurisdiction – an aspect of sovereignty:
o
o
o
o
o
o
Literally means stating or speaking the law, reason why the term pops up in different
fields of law,
Jurisdiction is general is the capacity and the power of the state to impact on people and
circumstances, must keep in mind here jurisdiction is part and parcel of sovereignty –
logical consequence of the equality of states. Speaking about the actual exercise of
jurisdiction we’ll discuss the lawful exercise of a state’s jurisdiction.
Can’t have two jurisdictions operating at the same time, one or the other cannot have
both.
Can be categorised in different ways – domestic jurisdiction and international.
Within domestic jurisdiction, we speak of Montesquieu’s separation of powers,
adjudicate or judicial jurisdiction and civil and criminal jurisdiction, civil is even more
complicated. Many of these rules went out of style over conflict of international laws.
Can also make distinction between descriptive and enforceable jurisdiction – descriptive
=power to make law possessed by state bodies, and enforcement capacity exercised by
executive orders.
Domestic jurisdiction:







Can discuss process of the immunities of the states as the exercise of jurisdiction has
given way to this. Originally in classical international law, there’s the idea states
have absolute powers over their nationals and territories.
Absolute concept has resulted in horrific events – genocide, the holocaust. If a state
can do what it wants with its citizens as they are objects, states can determine what
they do with them.
Unacceptable in the modern age, there are restrictions on modern actions within
domestic jurisdictions.
Beyond the idea certain actions would be beyond the actions of the state, when a
state asserts a right it has certain consequences.
When a state determines the lengths of its territorial seed, this is not merely
territorial but must be accepted in public international law. Cannonball rule –
territorial state could control territorial seed as far as the cannonball could fly. No
longer applicable however.
When accepted it extended to 3 nautical miles, and a state seized over 5, it was a
domestic act with international consequences.
Case over claimant claiming to be a citizen of Lichenstein, lived in Guatemala and
renounced German nationality in favour of L’s. State intiated legal actions against
Germany. Revolved around diplomatic protection – ancient legal institutions over
right for a state to intiate legal action against another state if it breaches state A’s
rights. E.g. over mistreating its nationals.








Nationality becomes the link here, not a human right over protection here. State A
can initiate proceedings here over the breach of sovereignty. Any internationally
unlawful action is the breach over state A.
States may or may not initiate legal proceedings here – often do not to avoid this.
Issue over whether N was actually a citizen of Lichtenstein – problem of the court of
N receiving citizenship in questionable circumstances – paid money to Lichtenstein
in 1939. Could have been interned over being an enemy to Guatemala during
wartime.
Even though, N did receive Lichtenstein citizenship, G treated N as if he were a
German national. Asked L to exercise diplomatic protection on his behalf.
Designed ingenious solutions over right to give international protection to N, for his
nationality to have effect it should be based on a ‘genuine link’ between a citizen
and the state.
Shouldn’t merely refer to formal legal protection, but citizen should share values
with the country – not a particularly liberal approach as it restricts states ability to
adopt citizens.
Issues have arisen over this genuine link – should we give legal effects to the
existing nationality?
States still give nationality to whoever they want to however, in practice.
Legislative jurisdiction:



Already problems over extra-territorial applications of laws. As regards to certain subject
matters, e.g. taxation it shouldn’t be that big an issue but there may be problems when
someone earns money in more than one jurisdiction.
Another issue is whether local laws could be challenged based on their non-compatibility
with international law.
Could be an important issue over courts giving effect to a foreign judgment: what if a state
wanted to impose a rule over torture internationally? Interrogation techniques are
interpreted in a special way here.
Next category is Executive Jurisdiction:





Territory is not just a land mass here, ships and planes could be territory too. Executive
jurisdiction in application is most limited, cannot enforce extra-territorial laws.
Possible a state creates a law applying to its nationals but a state cannot take actions against
nationals.
Cannot go to another state’s territory. In such cases states are exercising extra-territorial
judicial jurisdiction.
Legal dispute can involve foreign element in different ways including choice of laws – legal
dispute may involve cases with important foreign elements. What happens if there’s a car
accident in England between a Romanian national and Hungarian, which law applies to the
damages if they’re ensured by German and Dutch companies?
States usually develop certain conflict resolution techniques here – don’t have the same in
criminal law. States are more willing to assert criminal jurisdiction here.
Principles of Criminal Jurisdiction:
1. First principle is over territorial sovereignty, exercise of power over a certain land
mass, very existence of the state depends on effective control here. Points of
departure over discussion of criminal jurisdiction. Because of principle of territorial
sovereignty, makes sense to leave to the country to solve their criminal cases. May
have witnesses on the soverienty, material evidence, everything’s right there. Why
would we need another state to exercise jurisdiction here?
o What many in the literature refer to as the subjective aspect – crime originated
there so issue is there.
Issues:
o
o
o
o
o
o
o
o
o
Might have situations where someone shoots over the border of country –
where is the crime committed?
Smuggling of explosive device to the board of an aeroplane begins flying to its
destination. Famous case over Lockerbie is such a scenario.
Lotus case – similar scenario over two ships flying different flags and colliding on
the high seas.
On which territory was the alleged criminal offence was committed? Could
argue crime was committed at the same time on both ships. Even if one captain
was involved in criminal negligence it was on the French ship, but damage was
done on Turkish territory.
Objective position should be over where the crime was committed, but it’s up
to the state to regulate how it exercises jurisdiction and by the early 1900s it
has been similarly exercised in all cases. Issue over clear rules of Public
International Law prohibiting this.
Court stated they could make no prohibitive rule restricting state sovereignty.
Changed in 1958 ut from a theoretical point of view doesn’t make difference,
rule prohibits singular exercise of jurisdiction in both cases.
In other situations where the crimes are committed in one country but are
finished in another both countries have the right to jurisdiction.
Objective aspect of territoriality opens the door to clashes, two states may clash
over operation of this.
Solutions to territorial arguments:
o
o
o
Channel tunnel ‘control zones’, serving for immigration and customs
services, issue over immigrants leaving France to get to England.
Israel controlled certain areas of Jordan for decades with Israeli farmers
gaining ownership over farmers losing their properties, Jordan here has
limited jurisdiction involving affairs over land owners accessing Jordanian
territory, can now be accessed if there’s a crime involving land owners.
Very special situations. Under EU law now it’s possible to engage in crosscountry pursuits of a criminal, limited intrusion into the territory of another
states restricted for law enforcement purposes.
Similar situations apply to military forces, regulating how the territorial state can
exercise its sovereignty over this.
o
o
Question over what extent military forces apply when an enemy state
exercises control over enemy nationals.
Obviously occupant exercises jurisdiction over enemy territory but this is
temporary – a state doesn’t lose its sovereignty, merely its ability to
exercise it as in Iraq.
2. Second principle is the nationality principle:
o
o
o
o
o
o
Legal link may or may not entail more than formal legal rights and
obligations are nationality may entitle the national to further rights others
don’t enjoy. Could be an issue over exercise of human rights.
Already discussed that it is up to the state over how it wishes to grant
nationality – two main ways, ius solely and ius sanguinis, law of the land and
law of blood.
Us sanguinis – usually the continental approach, parents must have been a
member of states in order for you to become a national. If you’re parents
are from different nationalities you may have two nationalities.
Based on this principle, it becomes possible for your state to rule over you
when you’re abroad – jurisdiction can still be exercised over you when you
leave.
Different countries have different approaches; UK’s only applies abroad over
really serious crimes: murder, sexual crimes, football hooliganism.
In Hungary everywhere you go when you leave, you must comply with their
laws, if in UK you are complying with two sets of laws. Cannot for example
go to Amsterdam and smoke as its illegal under Hungarian law, but this
does not apply to England.
Passive and active principles – territoriality here are basic principles. Open to
abuse, means states that don’t really have much a connection may seize the
matter. Deem this an interference with the exercise of their sovereignty.
o
o
o
o
Passed on passive personality principle if a criminal offence was committed
against its national – rarely invoked in itself, usually a support argument
when the court declares its jurisdiction, example of 2002 Mexican national
convicted of sexual assault committed on a Mexican ship in M’s territorial
waters.
Prima facie, Mexico should have had jurisdiction but defendant was arrested
on US soil so it was more practical for him to be tried there.
2005 delegation of Italian MOJ and journalists:
US soldiers mistook them for soldiers and shot at them, resulting in Italian
minister being seriously injured and one journalist died. Italian court finally
stated there was an issue over status – up to the US to assert jurisdiction.
o
o
o
o
US has stronger jurisdiction over the case – must be a balance over
jurisdictional links but there was no criminal prosecution even though Italy
stated it would let US deal with the issue, no justice was served. Despite
strong competence it was not exercised – reason why other states may
claim jurisdiction in such cases.
In practice might be accepted in some cases.
Anti-security act in the UK. Even more controversial is the protective
principle. Up until now we were reviewing territorial issues, no matter how
controversial they were still based on links to basic elements of the states,
now we’re reviewing more esoteric idea.
Protective principle is invoked in situations where vital state interests are
compromised. E.g. getting rid of the opposition may be said to be in wider
state interest but to other may be a political witch-hunt – there is thus, a
prohibition on criminal issue.
Protective principle may be invoked here. Why shouldn’t Britain exercise criminal jurisdiction if it
can?
o
o
o
o
Protective principle usually invoked with other principles of jurisdiction,
problem is it doesn’t need to have effect on state territory, doesn’t need
to be felt although there’s a large element of subjectivity here.
Example from Shaw: Lord Hoho, original an American who fraudulently
acquired a British soil but he was not and didn’t have British citizenship.
Started worked as a German propagandist, obviously seen as a public enemy
in Britain.
In legal proceedings the principle didn’t have a role to play. Speaking about
an allegiance to Britain – even if not a real national by holding a British
passport he’s holding an allegiance to Britain – war treason cannot be
committed against another country by another citizen, Britain had to prove
he had quasi-nationality. Not a good example from Shaw, but there’s little
else to evidence the protective principle.
3. Universality – exercised very little in proceedings, maybe exercise a dozen times a
year, only a hundred or so cases in the last few decades.
o
o
o
o
Revolutionary in severing the need for a link to the state – possible for a state to
try a non-national who has committed a crime abroad.
Why can a state exercise jurisdiction here? So called principles of universal
jurisdiction, states usually don’t do this. International Law Commission had
universal jurisdiction on its agenda.
Occurs over hideous crimes, Rome statute stated these crimes of genocide etc
they shock the conscience of mankind as a whole.
Crime of piracy is on this level, perhaps because of the economic disruption it
causes. Functional thing originally because it affects inter-state commerce. But
there would not be Hollywood blockbusters about genocidrists as positive
figures?
o
o
o
o
o
o
o
o
o
o
o
o
o
Started as a result of the importance of inter-state commerce. Here, must
include war and genocide crimes, give us war-crimes as an issue. Crime of
aggression is an extremely political notion here, no principle applying it here.
Aggression in itself isn’t relied on as a basis this under for international law.
Issues:
Why start criminal proceeding if there are no interests for your state?
Symbolic act, to show the world you will punish such crimes, states will usually
start proceedings if there’s a remote chance of them catching the person.
By 1939 US told Belgium they’d move the headquarters of NATO to a different
country if they didn’t invoke the International Act (see slides).
Universality concerns international crimes such as genocide requiring countries
which didn’t want to try the perpetrator, complicit in the commission of
international crimes.
In literature also spoke about treaty based universality. All countries have now
ratified Geneva Conventions here, ratifying issues over violations of
international law so we can now refer to universality as treaty-based.
Don’t have any real evidence, any court has relied only on universality –
Nuremburg trials. Many we say this was based on universality but tribunal has
cryptic reference to jurisdiction – occupying power did together what they could
have done alone.
Eichman trial based on many principles. Had to justify jurisdiction here.
Mentioned principles in various ways. In practice they don’t like to rely on one
principle.
In practice thus, there are very few cases. Germany – allows for universal
jurisdiction in criminal court but they’ve never actually had a case!
Are other treaties providing for jurisdiction – not universally ratified but provide
for jurisdiction between states (see slides).
Pinochet – not based on universality but on torture convention, Pinochet
actually ratified the torture convention in Chile used against him but P was
never extradited to Spain due to ‘bad health’ but returned to Chile to live for
another ten years.
Possible bars to jurisdiction:
o
o
o
o
Illegal abduction, Eichman abducted from Argentina. Security council has
condemned council for adopting this. Certain jurisdiction which state ‘tainted’
evidence cannot be used in proceedings, if you’ve tortured someone to gain a
confession you’ve poisoned the evidence with unlawful activity.
In Eichman case they stated there were separate issues over sovereignty with
Argentina, but there was also the issue of individual criminal responsibility.
Court stated this depended on extradition laws. If they specifically exclude laws
they can happen here.
Millojvich taken despite diplomatic protection.
May be situations preventing jurisdiction, act must be applicable in both states.
Universial Civil Jurisdiction: Read at home