Outline and explain the traditional bases on which jurisdiction may be exercised by a state and accepted

under international law. 2014 Zone A

In public international law, the concept of jurisdiction has traditionally had a strong link with the notion of
sovereignty, as the right to prescribe and enforce laws is an essential component of statehood. Jurisdiction is, as
Cassese points out, the power of central authorities of a state to exercise public functions over individuals in a
territory and is inextricably linked with the exercise of the concept of sovereignty of a state, which is the power
possessed by states and the authority to wield it over individuals living in its territory. The concept is an integral
one for it encompasses a state’s nature and extent of authority over territory, persons, aircrafts and also includes
maritime jurisdiction. Sovereignty however not only serves as an enabling concept with respect to the exercise of
jurisdiction, but also as a restraining device: it informs the adoption of international rules restricting the exercise of
State jurisdiction. States may indeed well adopt laws that govern matters that are not exclusively of domestic
concern, and thereby impinge on other States’ sovereignty. In essence, the laws of jurisdiction delimit the
competences between States, and thus serve as the basic ‘traffic rules’ of the international legal order. The question Commented [NR1]: The reality however is that some
states are better able toe xercise power beyond borders
involves an explanation of the traditional bases on which jurisdiction is exercised by a state. In order to adequately than weaker states.
asses the demand of the question the following factors will be taken into account: the accepted and mostly
uncontroversial bases for jurisdiction, territorial and nationality and protective jurisdiction, and a discussion as to
why they are accepted as such, and the more contentious bases for jurisdiction, namely, the effect doctrine as an
extension of the protective jurisdiction, passive personality and universal jurisdiction.

At the ourset, it should be notes that jurisdiction may normally manifest itself in various forms, as hilighhted by the
Lotus Case; sovereignty includes the rights to prescribe (prescriptive jurisdiction) as the state wishes. There is, Commented [NR2]: PCIJ – Lotus Case: :
“1st and foremost restriction impose by intl law upon a
however, a crucial distinction between the almost unfettered right to prescribe and the much more limited state –(unless contrary permission is provided)- state may
jurisdiction to enforce. It would be an understatement to say that an extremely significant way in which a state not exercise its power in any form in the territory of
another state.
exercises its jurisdiction that is completely and absolutely accepted under international law (as Dixon points out) is -
territorial jurisdiction i.e. jurisdiction exercised within borders or over subjects of a state. This is basic attribute of
sovereignty flows from the very existence of the state as an international legal person and implied power and Commented [NR3]: Need to note at the outset.
authority over all persons, property and events occurring within its territory. In Compania Naviera Vascongado v Commented [NR4]:
Steamship Cristina the court emphasized the absoluteness of the courts reach within the territory. This emphasis on
territoriality is a reflection of the persistent Westphalian bent of the international legal order: a system of
territorially delimited nation-States that have full and exclusive sovereignty over their own territory, and no
sovereignty over other States’ territory. The significance of this can be gauged by art 2(7) of the UN Charter by
which no other state or international legal person may trespass into the ‘domestic jurisdiction’ of the territorial
sovereign.

However, limits to territorial jurisdiction can be placed by one of two ways: (i) general principles of international
law (e.g. to refrain from carrying out acts within its territory that violate peremptory norms like slavery, genocide
etc.; to refrain from exercising territorial jurisdiction over public vessels of other states [Schooner Exchange v
McFaddon]) and (ii) by specific obligations undertaken by its own consent; these do not however affect its absolute
nature (a state may agree by treaty for another state to exercise enforcement jurisdiction for a specific purpose e.g.
UK/Netherlands Agreement 1999, or a grant of sovereignty e.g. UK sovereign military bases in Cyprus, or grant of
de facto exclusive control e.g. US Military Base at Guantanamo Bay Cuba).

Perhaps more controversial is when a state may exercise power beyond its borders and what justification can be
provided for doing so. Principles have developed that define the occasion when such an exercise of power is
regarded by the international community as legitimate. It is important however, to note the reality of power
imbalance between states and that some states can better exercise this power beyond other states. The Harvard
Research on International Law’s ‘Draft Convention on Jurisdiction with Respect to Crime’ appears to suggest that
the international community has embraced a more restrictive approach to prescriptive jurisdiction, by requiring that
the asserting State rely on a permissive principle for the exercise of jurisdiction to be lawful. Thus, exceptions that
allow for limited extraterritorial jurisdiction have been carved out as such: states may claim extraterritorial
jurisdiction on the following principles: territoriality, nationality, universal jurisdiction, protective jurisdiction, and
the passive personality principle.
Jurisdiction is certainly territorial; cannot be exercised by a state outside its territory except by except by virtue of a
permissive rule derived from international custom or a convention. (Lotus Case). In Bankovic and Others it was
noted that the greater part of criminal and civil jurisdiction exercised by states is upon the basis of the territorial
jurisdiction principle. Thus, a state will have jurisdiction over offences that are completed in its territory, even if
some constitutive element of the crime/offence took place abroad. States have adopted a flexible approach with the
assistance of two concepts which usually enable a single state to take the lead in investigation i.e. objective and
subjective territorial jurisdictions. This principle of objective territoriality can be seen from the Lotus Case where
the PCIJ decided that Turkey was entitled to exercise jurisdiction since the final constituent act of manslaughter,
death, took place on Turkish territory. In the Lockerbie case, the UK asserted its jurisdiction because the murders Commented [NR5]: US passenger aircraft crashed in
Scotland following the explsion of a bomb on board,
took place in UK. In contravention to this is the principle of subjective territoriality, which allows a state to
exercise jurisdiction where a crime has been set in motion in its territory but completed elsewhere. While the
Belmarsh case highlights UK’s self imposed presumption against subjective territoriality, s. 1-3 of the Criminal Commented [NR6]: A crime didndt ‘occour’ in the uk
territory unless the last event constituting the crime took
Justice Act 1993 and s. 59 of the Terrorism Act illustrate its move exercising this jurisdiction. In this move away, place within the UL.
in Al Akeini and Others the apex court decided that the HRA 1998 did have extra-territorial affect for regulating
public bodies abroad.Other examples of when the UK Parliament may legislate allowing the exercise of Commented [NR7]: but the it emphasized that this
question was one of construction of legislation in light of its
extraterritorial jurisdiction by way of subjective territoriality are the Civil Aviation (Ammendment) Act 1996, and purpose.
s. 62-s.63 of the Terrorism Act 2000 where certain acts of terrorism are offences even if committed abroad.
Contrary to the Belmarsh case, UK’s move towards subjective extra-territoriality can be seen
Secondly, there is a recognized right to exercise jurisdiction on the basis of nationality, as it is undisputed that a
national is subject to its civil and criminal jurisdiction of a state as a corollary of the principle of citizenship. In
Joyce v DPP, it was held that even though the perpetrator was a US citizen he had also obtained a UK passport and
therefore accepted a duty of allegiance to the Crown, as well as gain protection from it. In the Trial of Earl Russel
the UK exercised this when a UK national was convicted of bigamy even though the second marriage took place
outside of UK. International law doesn’t provide for who is a national, that is up to states.
Third, international law reflects and accepts the reality that states will act to punish deeds committed beyond their
borders which they regard as prejudicial to their security and produce deleterious affects on the state, regardless of
the nationality of the perpetrators or where the acts are committed. The protective principle legitimizes this fact. It
applies potentially to all acts that might be considered harmful to a state e.g. in DPP v Joyce one ground of Commented [NR8]: Here it differs from universal
jurisdiction BECAUSE it applies to all acts
jurisdiction was that the acts of the defendant while he was in Germany were harmful to the UK. Similarly, in the
Eichmann case it was an additional justification for the assumption of Israel’s jurisdiction, although
controversially, its difficult to see how Israel’s interest was harmed when it wasn’t into existence yet. While before
it was applied to acts such as espionage, counterfeiting, or attempts to evade immigration rules, the vital interests
of states are now widely interpreted to include terrorism and international drug offences. Examples of this principle
in action are seen in R v Sansom where jurisdiction was carried out on the basis of an extra-territorial conspiracy
which if carried out would produce effects within the UK and a similar view was taken in R v Abu Hamza and Commented [NR9]: Where it was based upon the OAPA
1861
Liangsiriprasert v US. In the latter case, the Privy Council permitted extradition of a drug smuggler who was
arrested in Hong Kong when he had done no crime according to the national law there, highlighting the need to
adapt to the new reality of crime being no longer local in origin and affect. It can be seen however that these
offences mostly would also fall under the territorial principle as one element of crimes would be in the state
asserting jurisdiction, and thus begs the question whether international law needs such a principle to exercise
jurisdiction at all? The Harvard Research Draft 1935 noted that national legislations in most states provide for this
principle in their national legislations (Anti-Apartheid Act 1988 in USA and in UK the Broadcasting Act 1990)
which means that it can be regarded as an accepted head of jurisdiction under customary international law.
However, a stretch of this principle can be seen in the ‘effects doctrine’ where states have enacted legislation
designed to give themselves jurisdiction over any matters that produce an effect in their territory, like the anti-trust
legislation in USA, under which, a foreign company having partial operations in the USA may become liable to
heavy penalties for engaging in anti-competitive practices even if those practices take place outside of the US
(Laker v Sabena Airways). These would of course lead to disputes with states whose nationals are subject to such
harsh laws, and many have enacted blocking legislations to meet this threat e.g. UK the Protection of Trading
Interests Act 1980. In ensuring that the controversy is kept at bay, the Third Restatement of the Foreign Relations Commented [NR10]:
Law of the US 1987 noted that states hoped that the affect of this US legislation should be asserted under the
effects doctrine only if its purpose was to actually interfere with US commerce. Thus, while US national courts
should have been cautious in exercising this very controversial jurisdiction, in Hartford Fire Insurance v California
USSC the court did just the contrary; the court rejected the plea of the defendants asking the US to decline
jurisdiction since the acts, while the did have an affect in USA, were lawful in the state where they initiated (UK)
and international comity clearly favored this. An even more notorious aspect of the ‘effects’ doctrine can be seen Commented [NR11]:
through the Helms-Burton Act 1996 over Cuba and the D’Amto Act 1996 (Iran/Libya). These acts of extra- Commented [NR12R11]:
territorial jurisdiction are seen as controversial on the internal plane as it arises as can be seen since USA is Commented [NR13]: In Timberlane Lumber Co v Bank of
America court explained that it would have been better to
particularly active in creating grounds of extra-territorial jurisdiction and this has undoubtedly been used to further accept a conflict and the need to balance US interests with
US economic and foreign policy goals, not just for protective reasons. These acts have been bitterly resented and those of international comity, but simply chosen to balance
them in favour of the USA.
criticized by most states. Further, since it is for the states to decide what are its ‘vital interests’, extraterritorial
jurisdiction under the protective principle can be exercised purely for partisan or political reasons. Dixon points out
the need for negotiation and self restraint amongst trading partners to ensure that issues are minimized: EU-US
relations have indeed been stabilized by a large extent because of the US agreement to suspend part of the Helms-
Burton agreement. Thus, while it is important that a state should be able to adequately protect itself it is also
important that there shouldn’t be too many areas of concurrent jurisdiction which would lead to clashes between
e.g. a state that has custody and a state that wants custody of that person. The Harvard Research Draft in art. 14
proposes a solution which does give states some extraterritorial competence, but as Dixon points out, it is too Commented [NR14]: In cases where an act is lawful
under the state where it takes place, but unlawful by the
restrictive in todays world where the international community, with the effects of globalization and worldwide law of another state claiming jurisdiction, the latter state
onslaught of terrorism, is becoming more integrated. should n ot be able to prosecute aliens, only nationals.

The traditional base for the acceptance of extra-territorial jurisdiction is the passive personality jurisdiction
principle, which has mostly been used as an additional ground for exercising jurisdiction. This principle focuses on
the identity of the person involved in a criminal offence, but unlike the perpetrator, this focuses on the victim of a
crime and is usually framed in terms of a state asserting the right to punish aliens for crimes committed abroad
against its nationals.Thus, a state would have jurisdiction over all crimes abroad in which the victim was their
national. In the Lotus case, Turkey claimed jurisdiction on the additional ground that the persons killed were
Turkish nationals, but the court did not comment on the validity of this principle in international law, nor did it do
so in Questions relating to the Obligation to Prosecute or Extradite 2009 case. But it was raised in national cases
such as the Cutting Case 1887 and US v Yunis (highlighting the trend now of common law countries also Commented [NR15]: Lebanese national was prosecuted
in US for his alledged part in hijacking an aircraft.
accepting it as a basis of jurisdiction). In recent times, this principle has increased in importance especially since Connection for USA was the no. of passengers aboard that
France,Belgium, Turkey and Italy have asserted it in relation to their victims. The obvious lack of comment on part were US nationality.
of the ICJ does raise doubts as to whether this principle is in fact an excepted basis for exercising jurisdiction, even
if it was identified as such by the Harvard Research team. There are two reasons for objection to this principle
Dixon points out, firstly, that such matters as falling under this head would also fall under the other four heads
already and secondly, the practical affect of this jurisdiction provides an extension to the principle of jurisdiction
since all those people who come into contact with the national are themselves subject to the laws of his nationality.
Wade Mansell however, points out that in some instances not only is this base for jurisdiction but acceptable but is
also desirable, but only if the defendant comes lawfully (under extradition proceedings) to the country asserting
jurisdiction.
Lastly, is the universal jurisdiction principle, the essence of which is that any state may exercise jurisdiction over
crimes considered destructive irrespective of the territory the act takes place in, or the nationality of the perpetrator.
This principle extends to genocide, torture, war crimes, crimes against humanity etc. An early example is Re Piracy
Jure Gentium which in committing the crime of piracy, an individual places himself beyond the protection of the
state, as piracy was considered hostis humani generi (an enemy of all mankind). In DPP v Doot Lord Wilberforce
was of the opinion that drugs related offences warranted universal jurisdiction and in US v Yunis a US court
indicated that both air piracy and hostage taking were crimes on which any state could exercise its jurisdiction
under international law. In the much controversial AG of Isreal v Eichmann case in which the german general was Commented [NR16]: Challenged the jurisdiction of the
court because
charged and convicted under a 1950 Isreali Act, case where it proclaimed that ‘the jurisdiction to - unlawfully abducted
try crimes under international law is universal’, and it stated that the “state prosecuting them acts as agent of the - charged with crimes that didn’t exist at the time he
supposedly committed them
international community, administering international law”. A US court in Demjanjuk v Petrovsk validated this - isreal didn’t exist as a state at that time
controversial ruling by declaring it irrelevant that Israel didn’t exist at the time the gross atrocities were committed.
Surprisingly, in US v Yousef the court was of the view that terrorism was not a crime susceptible to universal
jurisdiction. Within the UK, attempts have been made of arresting foreign dignitaries including Henry Kissinger
and Robert Mugabe, but now the Police Reform and Social Responsibility Act 2011 stipulates that such a warrant
for arrest may only be passed by the Director of Public Prosecutions. Further, s. 134 of the Criminal Justice Act Commented [NR17]: Wade Mansell points out:
international treaties use vs universal jurisdiction use.
puts the Convention Against Torture into effect, by which case such prosecutions may take place, as opposed to by 1. Treaties
the principle of universal jurisdiction. 2. Courts like ICC
3. Other principles also fit this
In spite of the fact that after the Eichmann case the international community overwhelmingly had a positive
response to this base of jurisdiction, it has been since considerably controversial and its use has not been
extensive. One of the reasons for this is that universal jurisdiction is inextricably linked the judicial bodies that
might have universal jurisdiction over individuals (such as the Nuremberg and Tokyo War Trials). It is clear that
these bodies, e.g.s of the most recent being the Yugoslavian and the Rwandan War Crimes Tribunals, and the most
significant perhaps being the International Criminal Court. These bodies are not intended to supplant a state’s
existing right of jurisdiction over persons (art. 17 Rome Statue), but it is argued that the existence of these bodies
might precipitate the collapse of the principle of universal jurisdiction. It may be analyzed that these bodies are a
less controversial and perhaps a more unbiased way in which to deal with the most serious crimes of concern to the
international community’. (art. 5 Rome Statute).
While national courts have been active in recognizing this controversial principle, the ICJ has not yet considered
the precise scope of this principle, which adds to its contest even as an accepted principle of jurisdiction. In the
Case concerning the Arrest Warrant of Sept 11 2000 the court assumed that universal jurisdiction was established
Commented [NR18]: Universal Jurisdiction and
as a matter of customary international law. However, in a joint separate opinion including that of Judge Higgins, Customary Intl Law:
pointed out that states who have exercised the universal jurisdiction principle have done almost entirely in many argue customary intl law to be a part of common la –
so argument that state may not need to transcribe a treaty
situations where there has been a tie of some kind to that state. E.g. the individual was a national or the event into domestic law. e.g. Case of General Pinochet –
occurred on the territory of the sate or affected the states interests. There are thus few examples of ‘pure’ universal extradition law provides that extradition may only be
granted when alledged offence was a crime when it waws
jurisdiction where there was no connection to the state itself. The absence of examples of enabling legislation for committed in host and requesting state. – at the time UK
had signed convention but it wasn’t prat of domectic law –
pure universal jurisdiction meant that international law is neutral on this issue. HL didn’t agree to suuhc international custom being binding.
but LORD MILLET DISSENT : argued that torture by public
In conclusion, we can see that the basic heads of jurisdiction in international law are five, as accepted and practiced officials carried out as an instrument of state policy was
already an international crime attracting universal
by states in the international community, and as identified under scholarly opinion by the Harvard Research Team jurisdiction, this suggesting that it was part of customary
in their Draft. The three uncontroversial bases are territorial jurisdiction, jurisdiction based on nationality and international law. However, even he conceded that courts
required statutory incorporation.
protective jurisdiction. There is, in these bases a clear and close connection between the state and the act or person conclusion: for common law states, international crimes
giving rise to jurisdiction. However, through the above analysis its can be seen that eventhese are not without their give rise to universal jurisdiction but domestic courts will
only be able to hear such cases when they have explicitly
controversies and shortcomings. In fact, extraterritorial jurisdiction itself is an anomaly in the sense that required a been made part of domestic law.
state acting being their jurisdiction and impeding upon the sovereignty of another state. Controversial bases for
international jurisdiction exist where there is no direct or obvious link between the state wishing to exercise
jurisdiction or the act. The more powerful a state is, the more likely it is to be able to exercise this.