Jurisdiction and sovereignty
Chapter 6
Next Report
• Minimum of 1500 words, Times New Roman, single
space, 1-inch margins from MS Word (Around 4 pages)
• Provide only your student ID number
• http://www.icj-cij.org/docket/index.php?p1=3&p2=1
• Simplify it, understand it, explain it, and add your
analysis of the case.
• Quality of paper > length of paper
• Due date: November 20th and presentations the
following week
International Law Report
1. Choose a pending case before the ICJ
2. Your report should consist of the following
sections:
• Interesting Facts and Background Information 0-5
• The Legal Rules Applicable to the Facts (consider
ICJ’s sources of law) 0-5
• Analysis – how you think the Court will use the
law 0-10
• Conclusion – And your expected conclusion of the
case 0-5
General Principles
1. Jurisdiction means the ability of a court to
exercise power in a place or upon a person or
on some property.
2. Unless an exception applies, one state cannot
exercise jurisdiction over another.
3. However, a state under prescriptive
jurisdiction, can make laws beyond their
territorial domain.
General Principles
4. States can get jurisdiction even outside of
their own territory, unless a contrary rule exists.
(Antarctica)
* Should the IRS be allowed to tax its citizens
who are earning money in Korea?
Jurisdiction to prescribe
• Prescriptive jurisdiction means the power of a
state to assert the applicability of its national
law to any person, property, event, wherever
the situation may occur.
• Every state has the right to say what they
want to say.
Jurisdiction to enforce
• But states cannot enforce its jurisdiction onto
another state.
• They can if they get permission. (Guantanamo
Bay, Cuba)
• However, states can enforce people and property
within their territorial borders. (Japanese
journalist stuck in Korea).
• They cannot enforce jurisdiction if however they
agree not too (Speeding tickets by UN diplomats)
5 types of jurisdiction
Under civil and criminal law
1. Territorial
2. Nationality
3. Universal
4. Protective
5. Passive personality
* Concurrent jurisdiction
* Double jeopardy
Territorial Jurisdiction Nationality
Jurisdiction
Universal
Jurisdiction
Protective Jurisdiction Effects Doctrine
Jurisdiction
Passive
Personality
Jurisdiction
Strong
Established
Established
Weak
Jurisdiction against
harms against
mankind
Can have jurisdiction to Jurisdiction over any
prevent harm to the
matters that produce
state
an effect in their
territory (more broad)
Strong
Objective territoriality Jurisdiction over its
(main part)
citizens
Established
Jurisdiction over
any crime where
the victim was a
national
Subjective
territoriality (some
part)
Can only be enforced For example human
when that citizen is in rights violations,
his home state
piracy, etc.
Doesn’t matter who or Again, anti-trust
Where the crime
it doesn’t matter
legislation; a foreign
or action occurred
where
company can be liable does not matter
for heavy penalties in
the U.S. for activities
taking place outside
the U.S.
Extra-territorial
(jurisdiction for
actions taken abroad;
anti-trust)
Sex offenders in
Thailand could be
punished back in the
U.S. or U.K under
statutes
Israel v. Eichmann is
an example.
Again, Israel v.
Eichmann
Fight against terrorism The point is, any
or the fight against ISIS citizen carries the
protection of the
law of his home
state
Japanese journalist
U.S. citizens liable for
unable to leave Korea taxes on income
earned abroad
Congo v. Belgium
(foreign minister
claimed immunity)
What about U.S.
Invasion of Iraq, the
second time?
What about U.S.
Invasion of Iraq, the
first time?
Exceptions apply, like
Guantanamo Bay,
Cuba or immunity for
What about U.S.
Invasion of Iraq, the
first time?
Jurisdiction over
Jurisdiction over
Korean spies that are Korean spies that are
in China as an example. in China as an
Where the event
happens does not
matter
Not recognized by
customary law
American national
raped abroad as
an example
U.S. Court Jurisdiction
• State Courts have general jurisdiction
• Federal Courts have limited jurisdiction
(Diversity of states and at least 75,000 USD in
controversy or Federal law question
• Supreme Court has appellate jurisdiction over
any Federal or Constitutional law
Sovereignty
• Sovereignty means the most extensive form of
jurisdiction under international law.
• It means full and unchallengeable power over
territory and all the persons within.
• Limitations in international law are Jus Cogens
and diplomatic privileges along with other
agreements or treaties.
• A world without sovereignty would mean
chaos.
5 factors to claim sovereignty
1. Occupation and prescription (Island of
Palmas case; U.S. had treaty, Netherlands
was actually there)
2. Apparent display of sovereignty means local
administration has established a system of
law (Manifest Destiny and Reverse Manifest
Density in California)
3. Intention to acquire sovereignty (Mens Rea)
5 factors to claim sovereignty
4. Continuous display and the critical date (the
point in time, when sovereignty is clear)
5. Peaceful display – the exercise of state power
must not be challenged by other “states.”
* Should one family be able to punish another
family’s child?
U.S. sovereignty gained by
treaty, war, discovery,
Island of Palmas Case
• Palmas (Miangas) is an island of little economic value or strategic location.
It is two miles in length, three-quarters of a mile in width, and had a
population of about 750 in 1932, when the case was decided. Palmas lies
between Mindanao, the southernmost part of the Philippines, and the
Nanusa Islands, the northernmost part of Indonesia other than Palmas.
• In 1898, Spain ceded the Philippines to the United States in the Treaty of
Paris (1898) and Palmas lay within the boundaries of that cession to the
U.S. In 1906, the United States discovered that the Netherlands also
claimed sovereignty over the island, and the two parties agreed to submit
to binding arbitration by the Permanent Court of Arbitration. The question
before the arbitrator was whether the Island of Palmas (Miangas), in its
entirety, was a part of the territory of the United States or the
Netherlands.
• The legal issue presented was whether a territory belongs to the first
discoverer, even if they do not exercise authority over the territory, or
whether it belongs to the state which actually exercises sovereignty over
it. (Which way do you think the law should be?)
Conclusion of the Palmas decision
• Under the Palmas decision, three important rules for
resolving island territorial disputes were decided:
• Firstly, title based on contiguity has no standing in
international law.
• Secondly, title by discovery is only an inchoate title.
• Finally, if another sovereign begins to exercise
continuous and actual sovereignty, (and the arbitrator
required that the claim had to be open and public and
with good title), and the discoverer does not contest
this claim, the claim by the sovereign that exercises
authority is greater than a title based on mere
discovery.
More ways to gain sovereignty
• Accretion is when land is extended naturally
by land reclamation or by result of soil
deposits
• Avulsion is when there is new land due to
volcanic activity (Jeju Island was created from
avulsion)
• Judicial decisions can determine who gets the
territory (Island of Palams Case)
• Principle of self-determination p. 171 (Tibet)
Accretion
Violations of sovereignty
• U.S. capture of Bin Laden in Pakistan (did not
ask Pakistan for permission)
• Israel vs. Eichmann (did not ask Argentina for
their permission)
• U.S. activity in Libya
• Russian troops in Ukraine
* Why does this happen? Same as with IL in
general, enforcement is difficult
Discovery
• Think of Christopher Columbus’s supposed
discovery. He only had an inchoate title to
territory under Spanish law
• Cession and treaty is a way to transfer
territory (Alaska and Hong Kong)
• Shockingly, until 1945, use of force was an
acceptable form to acquire territory (think
about the nature of European colonization)
Discovery
• European countries “discovered” new lands all
over the Americas and in the South Pacific
• Any civilization existing that wasn’t Christian
was deemed to have no rights to the land
• Seemingly, European countries under their
laws of discovery divided up the world or
attempted to.
Other places
• Outer space is owned by mankind (however the U.S.
dominates space technology with China and Russia
following)
• Antarctica (South Pole) has been claimed by many
nations with signed territories (it has resources)
• The Arctic (North Pole) is mostly frozen sea and is said
to also be owned by mankind despite Russia’s claim to
it (no resources but strategically important for military
operations)
• Airplanes and ships belong in jurisdiction to the states
in which they are registered.
Relationship between Discovery,
Sovereignty, and Jurisdiction
• Principles of discovery led to European
colonization of the Americas (Nothing rarely
discovered now)
• After discovery, sovereignty is established
(mostly by occupation and the setting up of a
local government)
• After sovereignty is established, its courts can
exercise jurisdiction
• Isn’t it all slightly similar to the movie Avatar?
Questions to ponder?
• How come China or India did not colonize or
discover the world, even though they were the
economic powerhouses for most of modern
history?
• What allowed European countries to be the ones
to establish governments, laws, and systems of
living all over the world? Why not other cultures
or races?
• IL, common law, civil law, among other systems
all stem from Europe. Why not the other way
around?
One explanation from
Guns, Germs, and Steel
Summary of Guns, Germs, and Steel
• Europeans have geography blessed enough to
have large animals.
• Large animals were domesticated for farming,
which increased caloric intake.
• Plentiful food led to job specialization. This led
to development of steel and weapons.
• Also, being close to animals led to germs.
• Weapons and germs are two key factors that
allowed Europeans to colonize native lands.
International Law Report Modification
• You may choose to find an international law
issue around the world and assume ICJ
jurisdiction instead of choosing a present case.
• If you choose this route, you will not be able
to benefit from the facts and record of law,
that is already established by the ICJ.
• The positive benefit is that you can explore a
topic that is of interest to you.
Grading Criteria
• Interesting Facts and Background Information
0-5
• The Legal Rules Applicable to the Facts
(consider ICJ’s sources of law) 0-5
• Analysis – how you think the Court will use
the law 0-10
• Conclusion – And your expected conclusion of
the case 0-5
Tips on Report
• Remember the ICJ would not even hear a case
unless two countries thought they had a
chance of winning.
• So do not make your paper clearly one-sided.
• Show that some factors or laws favor one side,
but more factors or laws favor the other side.
• Times New Roman and single-space please!