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International Law and state jurisdiction
Transcript of International Law and state jurisdiction
The case of the S.S Lotus (PCIJ, 1927)
Primary function of international law is to delimitate the 'spheres
of sovereignty' of nation-states
Hans Kelsen, Principles of International Law (1959)
'The primary function of IL is to determine the territorial
and personal spheres of validity of the national legal
orders. It is only this normative delimitation which renders
it possible that the States can be considered as coexistent side by side as equal subjects'
What is it?
Harris (227): State jurisdiction is the power of a state under international law to govern persons and property by its municipal law. It includes both the power to prescribe rules (prescriptive jurisdiction) and the power to enforce them (enforcement jurisdiction)
Power of a state apply its laws to certain conducts and/or individuals
WHO can do WHAT and WHERE?
The fundamental principle of territoriality
State jurisdiction, as a rule, is territorial
The S.S. Lotus (CPIJ, 1927)
‘The first and foremost restriction imposed by
international law upon a State is that – failing the
existence of a permissive rule to the contrary – it
may not exercise its power in any form in the
territory of another State. In this sense jurisdiction
is certainly territorial; it cannot be exercised by a
State outside its territory except by virtue of a
Permissive rule derived from international custom
or from a convention’ (Harris at 231)
The possibility of extra-territorial jurisdiction
''It does not follow [from theprinciple of territoriality] that international law prohibits a State from exercising jurisdiction in respect of acts which have taken place abroad. Far from laying down a general prohibition to the effect that states may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside its territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules' (Harris at 231)
Titles of extra-territorial jurisdiction
The 'effects' doctrine
Example: French Criminal Code
Art. 113-6: 'French criminal law shall apply
to any crime committed by a French citizen
outside the territory of the Republic'
Jurisdiction based on the nationality of the offender
Harvard Draft Convention on Jurisdiction 1935
(Harris at 230):
'It is undisputable that nothing in international law precludes a state from prosecuting and punishing one of its juristic persons for a crime committed abroad"
Malcolm Shaw, International Law (2008) at 666_7:
'States may exercise jurisdiction over aliens who have committed an act abroad which is deemed prejudicial to the security of the particular state concerned. It is a well-established concept, although there are uncertainties as to how far it extends in practice and particularly which acts are included within its net'
Example: the US and drug smugglers in the high seas (see the 1986 Maritime Drug Law Enforcement Act)
UN Convention on the Law of the Sea 1982
Art. 105: 'On the high seas, or in any other place outside the jurisdiction of any state, every state may seize a pirate ship or aircraft and arrest the persons and seize the property on board. The courts of the state which carried out the seizure may decide upon the penalties to be imposed'
Pirates arrested by NATO forces in the gulf of Aden, off the coast of Somalia
'These crimes which offended the whole of
mankind and shocked the conscience of
nations are grave offences against the law of
nations itself ("delicta juris gentium"). Therefore,
so far from international law negating or limiting the
jurisdiction of countries with respect to such crimes,
in the absence of an International Court, the
international law is in need of the judicial and
legislative authorities of every country, to give effect
to its penal injunctions and to bring criminals to trial.
The jurisdiction to try crimes under international law
is universal ‘ (Harris at 242)
Crimes against humanity
The Eichmann trial (1961)
principle confirmed in Piochet (1999) and Arrest Warrant (2002)
but contested since (see the 'Belgian saga')
US v Aluminium Co of America ('Alcoa' Case - US Second Circuit Court of Appeal 1945)
'Any state my impose liabilities, even upon persons not within its allegiance, for conducts outside its borders that has consequences within its borders which the state reprehends'
Extra-territorial jurisdiction based on the nationality of the victim of an offense
'[passive personality jurisdiction] means that the citizen of one country, when he visits another country, takes with him for his 'protection' the law of his own country and subjects those with whom he comes into contact to the operation of that law... It is evident that this claim is at variance not only with the principle of the exclusive jurisdiction of a state over its own territory, but also with the equally well-settled principle that a person visiting a foreign country, far from radiating for his protection the jurisdiction of his own country, falls under the dominion of the local law' (Harris at 235)
Very controversial title. See dissenting opinion of Judge Moore in Lotus, Harris at 235-6:
But a principle that is increasingly accepted in relation to certain crimes, in particular terrorist acts committed abroad against one's own nationals. See the case of Yunis (1982), Harris at 239-40.
Power of a state to adopt coercive measures to ensure compliance with its laws
A State may not exercise jurisdiction on the territory of another state without the latter's consent, invitation or acquiescence. Such conduct would constitute a breach of the territorial state's sovereignty.
Enforcement jurisdiction is strictly territorial
Example: Eichmann's abduction and Security Council resolution 138