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5. Jurisdiction

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Roser Puig

on 9 November 2013

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Transcript of 5. Jurisdiction

PUBLIC INTERNATIONAL LAW
2013-14
Degree in International Relations

5. JURISDICTION
territorial principle
a State has JURISDICTION over
ALL MATTERS in ITS TERRITORY

the SUBJECTIVE territorial principle allows the exercise of jurisdiction by the State in which a crime is commenced / the OBJECTIVE territorial principle gives jurisdiction to the State in which the crime has been completed

there is NO RULE of ILAW which
gives a State EXCLUSIVE JURISDICTION

an exercise of jurisdiction is EXTRA-TERRITORIAL where it provides that acts
taking place abroad may be offences
within the local jurisdiction
nationality principle
a State may exercise jurisdiction over any of its NATIONALS wherever they may be and in respect of offences committed ABROAD

the jurisdiction will not be EXERCISED until the national PHYSICALLY comes within the territory of his/her home State

it does NOT PRECLUDE the State in which the offence WAS COMMITTED from exercising jurisdiction on the TERRITORIAL principle
bases of jurisdiction
According to the Harvard Research Draft Convention of 1935, the bases on which jurisdiction
may be exercised by a State are:
- the TERRITORIAL principle
- the NATIONALITY principle
- the PROTECTIVE (or security) principle
- the UNIVERSALITY principle
- the PASSIVE PERSONALITY principle

the extent to which is accepted as part of customary international law is a matter of debate

they are NOT LISTED listed in any HIERARCHY

a State may legitimately possess
jurisdiction CONCURRENTLY
with another State
jurisdiction
to enforce
is the power to ensure through COERCIVE means
-the operation of police, etc.- that
LEGAL commands are COMPLIED with

a State CANNOT ENFORCE its prescriptive jurisdiction in the TERRITORY of ANOTHER State, except by virtue of a PERMISSIVE RULE derived from international custom or from a convention

the territorial exclusiveness of the jurisdiction to enforce is one of the most important
PRINCIPLES of international law

jurisdiction
to prescribe
is the power of the State to bring ANY MATTER
within the cognizance of its NATIONAL LAW
is called its prescriptive jurisdiction

the power to ENACT LEGAL commands BINDING upon INDIVIDUALS in the TERRITORY belonging to the State

under certain circumstances, States may also enact legislation binding upon their NATIONALS ABROAD, as well as applicable to other facts or conduct engaged in abroad and considered prejudicial to the State
jurisdiction
the POWER of central authorities of a STATE
to EXERCISE PUBLIC FUNCTIONS over INDIVIDUALS located in a TERRITORY
the absolute nature
of territorial jurisdiction
it is a fundamental rule of international law that the JURISDICTION of a State within its own TERRITORY is COMPLETE and ABSOLUTE

the State has POWER and authority over all PERSONS, PROPERTY and EVENTS occurring within its territory

this is a BASIC ATTRIBUTE OF SOVEREIGNTY and flows from the existence of the State as an international legal person

Jurisdiction is primarily EXERCISED on a TERRITORIAL BASIS, nevertheless there are EXCEPTIONS;
it CAN BE be MODIFIED either by general principles of ILAW or by specific obligations freely undertaken by the territorial sovereign (immunities, exercise of jurisdiction beyond its territory, etc.)
universality principle
under ILAW, there are CERTAIN CRIMES that are regarded
as so DESTRUCTIVE of the international order that
ANY STATE MAY EXERCISE JURISDICTION in respect of them

these include GENOCIDE, TORTURE, WAR CRIMES, PIRACY, CRIMES AGAINST HUMANITY

the specific elements of international crimes have continued to
develop through the practice of international courts and ILAW

international crimes not only allow for universal jurisdiction but also the INTERNATIONAL COMMUNITY has, since 1990s, created a series of TRIBUNALS to ASSUME JURISDICTION over them
(Statues of the ICT for the Former Yugoslavia and Rwanda;
Statute of the permanent International Criminal Court)
IMMUNITY FROM JURISDICTION
as a general rule, the jurisdiction of a State within
its own territory is complete and absolute

SOVEREIGN immunity (refers to immunities enjoyed by foreign heads of State) and DIPLOMATIC immunity (refers to the immunities enjoyed by their official representatives) are the two PRINCIPAL EXCEPTIONS to the exercise of territorial jurisdiction
diplomatic immunity
“the institution of diplomacy, ..., has withstood the test of centuries and proved to be an instrument essential for effective cooperation in the international community, and for enabling States, irrespective of their differing constitutional and social systems, to achieve a mutual understanding and to resolve their differences by peaceful means…”

diplomatic law was the earliest expression of IRR

the customary law was codified in the 1961 VCDR; it deals with the immunities of foreign missions and foreign personnel in receiving host states
immunities relating
to property
the PREMISES of the MISSION are INVIOLABLE and AGENTS of the receiving State MAY NOT ENTER them without the CONSENT of the head of the mission

the RECEIVING State is under a DUTY to PROTECT the MISSION and it will be RESPONSIBLE under international law if it FAILS to do so

the PROPERTY and means of TRANSPORT of the mission are IMMUNE from SEARCH and seizure and the ARCHIVES and DOCUMENTS of the mission are INVIOLABLE

the PRIVATE RESIDENCE of a diplomatic agent
enjoys the SAME inviolability and protection
as the premises of the MISSION
recognition of
governments
diplomatic and consular immunities
its purpose is not to benefit the individual as such,
but to ENABLE him to CARRY OUT his designated FUNCTIONS on behalf of the State

the INDIVIDUAL is given certain PRIVILEGES within the legal system of the State to which is accredited & the RECEIVING STATE is placed under certain obligations

the legal principles of diplomatic and consular immunities are to be found primarily in the Vienna Convention on Diplomatic Relations 1961 &
on Consular Relations 1963

CONSULAR immunities & privileges are
MORE LIMITED in SCOPE
State (sovereign) immunity
immunity is where a national court would have
HAD JURISDICTION over the subject matter of a dispute,
but is NOT PERMITTED TO EXERCISE IT in a particular case
because one of the PARTIES is a foreign sovereign STATE

par in parem non habet imperium expresses the idea that
it is legally IMPOSSIBLE for one sovereign power to
EXERCISE AUTHORITY over ANOTHER SOVEREIGN power

no State may exercise jurisdiction over another State without its consent

State immunity is that it is SUPPORTED BY the PRACTICE of States

the ILC has been addressing this issue:
Draft UN Convention on Jurisdictional Immunities
of States and Their Property 2004 (not yet in force);
it represents an attempt to codify
the international law of State immunity
jurisdiction
to adjudicate
is the power to SETTLE LEGAL DISPUTES through binding decisions, or to INTERPRET the law with the binding force for all the persons and entities concerned
1) a State has authority under ILAW to apply its national laws to matters arising within and outside its territory, irrespective of the nationality of the object of that jurisdiction

2) this prescriptive jurisdiction is curtailed in practice by the fact that the enforcement of jurisdiction may take place only in a State’s own territory unless some special permission has been granted to exercise enforcement jurisdiction in an area under the sovereignty of another State

3) a State has absolute and exclusive power of enforcement within its own territory over all matters arising therein, unless that power is curtailed by some
rule of international law, either general or specific
summing up the basic principles of jurisdiction
Jurisdiction is an attribute of
a State sovereignty

ILAW confines itself to criminal rather than civil jurisdiction

ILAW does NOR prescribe rules REQUIRING the EXERCISE of jurisdiction

ILAW concerns itself principally with the propriety of the exercises of State jurisdiction

the EXERCISE of jurisdiction remains
within a STATE’s DISCRETION
passive personality principle
it is concerned with the IDENTITY of the VICTIM

a State would have jurisdiction over all crimes where the VICTIM was a NATIONAL, IRRESPECTIVE of the PLACE where the crime was committed or the nationality of the OFFENDER

there is some doubt whether it is part of customary ILAW; it is not generally accepted by some States

is as a potential head of jurisdiction,
predominantly in response to perceived failures
by States holding alleged war criminals
to bring them to trial
protective (security) principle
a State may exercise jurisdiction in respect of offences which, although occurring
ABROAD and committed by NON-NATIONALS,
are regarded as INJURIOUS
to the STATE'S SECURITY

the essence is that a State may assert its authority over matters which produce a deleterious effect on “the State”, irrespective of where those acts take place or by whom they are committed

this jurisdiction subsumes any matter
HARMFUL to the particular State
quasi-universal jurisdiction
only international crimes “proper” are susceptible to universal jurisdiction
under CUSTOMARY ILAW
(irrespective of whether or not a State is party to any international agreement)

however, there is nothing to preclude OFFENCES currently REGULATED by way of CONVENTION from crystallizing into customary international law

(Examples: Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation 1971; Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 1974; 1979 International Convention against the Taking of Hostages; ...)

such agreements are EFFECTIVE only between CONTRACTING PARTIES
doctrine of restrictive immunity
for MANY YEARS, the practice of States was to
grant foreign sovereigns ABSOLUTE immunity
from the jurisdiction of their courts

restrictive immunity recognizes that the State may
ACT in a VARIETY of CAPACITIES and that it should have IMMUNITY ONLY when it is ACTNG as a STATE

distinction between acts jure imperii & jure gestionis

acts JURE IMPERII are acts of a sovereign nature in respect of which the State is immune
acts JURE GESTIONIS are commercial acts in respect of which the State is subject to the jurisdiction
of the territorial sovereign

States may develop its OWN CRITERIA
for distinguishing between them
immunity and violations of international law
immunity is a powerful concept in ILAW

in cases where the subject is a sovereign, immunity from national courts extends to acts contrary to the national law of that State and contrary to ILAW itself, even to rules of jus cogens

it simply PRECLUDES a NATIONAL COURT from trying the matter; there will STILL BE INTERNATIONAL RESPONSIBILITY, either for the State or for the individual.

that responsibility can be enforced in
international forum
(ICJ or the ICC)
head of State
a former head of State could only be
IMMUNE for acts which fell within
his FUNCTIONS as a HEAD of State

an individual or State could not claim immunity in respect of ACTS which are PROHIBITED by international CONVENTION and to which the State concerned is a contracting party of it

on leaving office, a (now) ex-head of State enjoys CONTINUING IMMUNITY in respect of ACTS done
while in office if those acts were part
of his OFFICIAL FUNCTIONS

PRIVATE ACTS done while in office LOSE
immunity once the head of the State
CEASES to be the head of State
immunities relating to the person
the most extensive immunities are accorded to the
head of mission and his diplomatic staff,
with a descending scale for other categories

the person of a diplomatic agent is INVIOLABLE and he may NOT BE ARRESTED or subjected to any other form of detention

a diplomat is completely IMMUNE from the CRIMINAL JURISDICTION and from the civil & administrative jurisdiction (with exceptions) of the RECEIVING STATE

the right of immunity carries with it an obligation: the duty of all persons enjoying immunities and privileges to respect the laws of the receiving State

the sending State may WAIVE the right to IMMUNITY

a host State has the right to declare a member of
the diplomatic mission a
PERSONA NON GRATA
freedom of communication
the RECEIVING State is under an
OBLIGATION to ensure FREEDOM of MOVEMENT for all members of the mission

all CORRESPONDENCE relating to the mission and its functions is INVIOLABLE and the DIPLOMATIC BAG must not be opened or detained

the degree of scrutiny to which the diplomatic bag may be subject has remained controversial and is a SENSITIVE ISSUE
(the ILC has adopted the 1989 Draft Articles on the Status of the Diplomatic Courier and
the Diplomatic Bag Not Accompanied
by the Diplomatic Courier)
Full transcript