8-9 Jurisdiction - Lecture notes 8 PDF

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Summary

Defining Jurisdiction Principle and Meaning of Jurisdiction ● Describes the limits of the legal competence of a State or other regulatory authority to make, apply, and enforce rules of conduct upon persons ● Forms of jurisdiction: ○ Prescriptive Jurisdiction - power to make laws ○ Enforcement Jurisd...

Description

Defining Jurisdiction Principle and Meaning of Jurisdiction ● Describes the limits of the legal competence of a State or other regulatory authority to make, apply, and enforce rules of conduct upon persons ● Forms of jurisdiction: ○ Prescriptive Jurisdiction - power to make laws ○ Enforcement Jurisdiction - power to take executive action pursuant to laws ○ Adjudicative jurisdiction - adjudicate disputes arising from law Exercise of Civil Jurisdiction ● Akehurst - “assumption of jurisdiction by a state does not seem to be subject to any requirement that the defendant or the facts of the case need to have any connection with that state” ○ Suggests very wide bases → in some civil law countries, a person or company can be sued as long as they have assets in the State (without even their presence) ● Necessary to prevent a ‘denial of justice’ because there are no effective alternatives or because local remedies have been exhausted Exercise of Criminal Jurisdiction ● Justified as they are more politically sensitive and concern the importance of the interests involved for the individual (liberty and sometimes life may be at stake) Prescriptive Jurisdiction ● Principles for when States can claim jurisdiction Territorial Principle ● Least controversial → prosecute a crime committed on its territory (including territorial sea - 12 miles, airspace, etc.) ● Where an offence has several elements which occur in different States: ○ Subjective territorial jurisdiction - where the incident is initiated within the territory of the prosecuting State but completed abroad ○ Objective territorial jurisdiction - where the incident is completed within the territory of the prosecuting State but initiated abroad (reverse of subjective) ○ ‘Effects’ doctrine - where no elements of the offence occur in the State, but the effects of the acts impact on the prosecuting State (including nationals and companies) ● Lotus case ○ Collision between a French steamer (Lotus) and a Turkish Steamer (Boz-Court) on the high seas ○ 8 Turkish nationals were killed, surviving passengers on Turkish steamer taken to Turkey on board the Lotus ○ Could Turkey exercise its jurisdiction over the French national (on watch duty) who was the alleged offender under international law? ■ No rule in international law which prohibits a state from exercising criminal jurisdiction over a foreign national who commits acts outside of the state’s national jurisdiction → may exercise extra-territorial jurisdiction ■ Sovereign states may act in any way they wish so long as they do not contravene explicit prohibitions in international law → wide degree of discretion ■ restrictions cannot be presumed, that would go against the positivist school that the law emanates from the free will of sovereign independent State ○ Other significant considerations:

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Ship on the high seas is assimilated to the territory of the flag State, may exercise its jurisdiction over the ship → does not apply here since they both flew different flags (concurrent jurisdiction) State would have territorial jurisdiction even if the crime was committed outside its territory, so long as the crime is committed “in whole or in part” within its territory: ● where the incident is completed within the territory of the prosecuting State (effects felt on board the Turkish steamer) but initiated abroad (watch duty issues on board the Lotus → objective territorial jurisdiction

Lockerbie ○ Libyans planted a bomb in Malta on a US plane and exploded in the UK ○ Initiated abroad, but completed in the UK (Scotland specifically) ○ Malta would have been applying subjective territorial jurisdiction → possible but determined on a case by case basis ■ Geographically too close to Libya → judiciary susceptible to improper influence ○ Scottish trial in the Netherlands → endorsed by Arab organizations Nationality Principle ● Prosecute offences committed by their nationals even where the offence did not occur within the State’s territory → grant of nationality is within the discretion of States ○ State’s competence is not impaired or limited by the fact that he is also a national of another state (ex. Dual citizenship) ● Requirement of a genuine link to the State ○ Nottenbohm ■ German citizen who went to Guatemala to develop his business ■ Guatamala was against Germany in WW2, implemented a plan to obtain German nationals ■ Nottenbohm changed his citizenship to Liechtenstein (neutral state) ■ Nonetheless, Nottenboh was arrested, detained, and his property confiscated ■ Liechtenstein attempted to bring a claim against Guatamala on behalf of Nottenbohm ■ No genuine link between Nottenbohm and Liechtenstein, just replaced his status as the national of a belligerent state with that of a neutral state in a time of war Passive Personality Principle ● Controversial, opposite of nationality principle → now more generally accepted in certain types of crime such as terrorism ● Allows State to prosecute offences where the victim is a national of the prosecuting State → focus on individuals ● US v Yunis ○ Lebanese national had hijacked a plane with US nationals and other passengers on board, ultimately blowing it up ○ Arrested by FBI agents in international waters and convicted in US court ○ “Under the passive personality principle, a state may punish non-nationals for crimes committed against its nationals outside of its territory, at least where the state has a particularly strong interest in the crime.” Protective Principle ● Allows States to prosecute offences where their essential interests are affected ○ Similar to passive personality principle, but rather interests of the State has a whole ● Moore’s Digest of International Law ○ Fugitive is brought back by kidnapping or other means and not under an extradition treaty, he cannot set up in answer to the indictment the unlawful manner in which he was brought within

the jurisdiction of the court → this right belongs to the territory where he was wrongfully taken from to complain of this violation ● Attorney General of the Government of Israel v Eichmann ○ Eichmann was a German who was in charge of the ‘final solution’ → led to the extermination of millions of Jews in Europe ○ Eichmann was found in Argentina and abducted to Israel ○ Prosecuted under the Israeli Nazi Law for war crimes, crimes against humanity, etc. → sentenced to death ○ Linking point doctrine → Mann suggests there has to be a substantial connection ■ This was fulfilled between Israel and Jews ○ Argentina waived its claims ○ Also universal principle → particular universal character of these crimes that vests in each state the power to try and punish anyone who assisted in their commission Universal Principle ● Krakow Commission definition: ○ Competence of a State to prosecute alleged offenders and to punish them if convicted, irrespective of the place of the crime and regardless of any link or other grounds of jurisdiction ● Princeton Principles: ○ Criminal jurisdiction based solely on the nature of the crime without regard to where the crime was committed, nationality of the parties, or any other connection to the state ● O’Keefe: ○ Amounts to the assertion of jurisdiction in the absence of any other accepted jurisdictional connection at the time of the relevant conduct ● Any State may legislate to criminalize an offence → exists on the basis that every state has a legitimate interest in the suppression of certain crimes ● Associated with piracy, crimes against humanity (genocide), serious war crimes, etc. Treaty-Based Extensions of Jurisdiction ● Some treaties will require that the State which has custody of the accused either extradite them to the appropriate State for prosecution or prosecute the accused itself ○ Ex. Convention against Torture, Terrorist Bombings Convention, etc. ● Principle of ‘aut dedere aut judicare’ - legal obligation of States to prosecute those who commit serious international crimes where no other state has requested extradition → avoid gaps in the law ● Even where universal jurisdiction applies, States may be encouraged to allow those who can prosecute on the basis of territorial or nationality jurisdiction to do so ● Treaties may also create non-universal jurisdiction ○ Restrictions for who can prosecute ● Treaties may also create unprincipled assertions of jurisdiction ○ Meaning it doesn’t fall into one of the principles but the treaty has explicitly asserted jurisdiction Jurisdiction over Ships and Aircraft ● UN Convention on the Law of the Sea ○ Many provisions are widely agreed to form part of customary international law ○ Flag state has jurisdiction over the ship when on high seas ○ Concurrent jurisdiction: ■ Two ships with different flags ■ When a ship enters foreign waters (ex. harbour) ● Convention on Offences and Certain Acts Committed on Board Aircraft ○ Aircraft state of registration ○ Contracting state which is not the state of registration may only interfere in the following cases:

■ Effect on the territory of such state ■ Committed by a national or permanent resident of such State ■ Offence is against the security of such State ■ Breach of rules or regulations relating to flight ■ Observance of any obligation of such State under a multilateral international agreement Inadequacies of the Traditional Approach ● Difficulty in locating acts ○ Act begins in one jurisdiction and ends in another → which State has jurisdiction over the act as a whole? ○ No clear answers, common sense ● Difficulties in overlapping jurisdiction ○ Concurrent jurisdiction give rise to the question of priority → which State has the stronger claim? ○ Sometimes legislation gives clear indications as to who takes precedence Enforcement Jurisdiction ● States may adopt laws to address situations which occur outside their territory → ex. Treaty ○ Military personnel stationed abroad in NATO member states → network of agreements ● Sometimes States adopt such measures unilaterally → more controversial ○ Consider: Eichmann who was brought to Israel through a kidnapping in Argentina ○ Can an accused person who is seized in violation of the territorial sovereignty of a State stand trial?

F. Hoffman-LaRoche, Ltd. v. Empagran S.A., 542 US 155 (2004) (United States Supreme Court)...