State Jurisdiction (Public International Law 1) PDF

Preview

Summary

STATE’S JURISDICTION State jurisdiction is an aspect of state’s sovereignty which basically explains the competency of the states in terms of its state functions (executive, legislative, judiciary). In the Island of Palmas case, the court affirmed that sovereignty means the right to exercise functio...

Description

STATE’S JURISDICTION State jurisdiction is an aspect of state’s sovereignty which basically explains the competency of the states in terms of its state functions (executive, legislative, judiciary). In the Island of Palmas case, the court affirmed that sovereignty means the right to exercise functions of a state to the exclusion of other states. In the Lotus case, it is held that a state cannot simply exercise its power in the territory of another state.

4 types of state jurisdiction principles : 1. Territorial principles 2. Nationality principles 3. Protective principles 4. Universality principles

TERRITORIAL PRINCIPLE

A State has jurisdiction over event happening within its territory, regardles of the nationality of the person responsible for the incident. UTD States v Burn Individual who chooses to leave Canada leaves behind Canadian law and must accept the local law , procedures and punishment applied to its nationals. JP Bertelson v DG of Immigration Foreign journalist was charged and tried in Malaysia for his defamatory article condemning the administration Malaysian government on Walls Street as such act was done while he is in Malaysia.

2 categories of territorial principles 1. Subjective principle : state has jurisdiction over offences which commenced in its territory, and ended abroad (SUBJECTICE = START = COMMENCED)

DPP V Doot - smuggling of cannabis agreement were concluded abroad, but the accused was caught in UK while carrying out the agreement = UK has jurisdiction Law 510 Public International Law

Khairun Nisa Azwani

2. Objective principle : state has jurisdiction over offences commenced abroad, and completed in its territory. This is the common practice of most states.

Effect doctrine (origin from objective principle) It is a basis of jurisdiction that was developed to regulate aliens abroad whose conduct occurs beyond territory of the state but has effect within the territory of the state.

State has juridiction over the incident regardless happening beyond territory. Since the effect of the incident is felt by that state, court equated it to the territory of that state.

Lotus Case Effect of the collision of French steamer and Turkish steamer on high sea of Mediterranean is felt by the Turkish. So Turkish have jurisdiction (court assimilated to turkish jurisdiction)

S v Mharapara Zimbabwe diplomat commit theft, effect of the crime felt by Zimbabwe. Zimbabwe has jurisdiction eventhough it happened in Belgium.

NATIONALITY PRINCIPLE This principle allows state to exercise juridiction over its nationals for crimes happened abroad. Based on personal link between accused and the state claiming jurisdiction. This has been explained in the case Joyce v DPP.

1. Active nationality principle State may prosecute its national for crime committed abroad. Usually practiced in country with civil law.

PP v Antoni

Sweden has jurisdiction to try its own nationals who involved in a negligent road

accident in Germany and affirmed that every crime committed by a Sweden national may be punished by their court even the offence was committed abroad.

Law 510 Public International Law

Khairun Nisa Azwani

S v Mharapara

it was emphasised that rule of active nationality cannot be applied by domestic

court unless there is provision for such application. Held : the state has no right to apply extraterritorial jurisidiction so active nat principle cannot be applied

2. Passive nationality principle State may prosecute alien for crime committed against its national

Mexico claimed jurisdiction over American citizen for publication of defamatory

Cutting Case

statement against Mexican national in a Texas newspaper.

Court allow US to try Lebanese national for hijacking a Jordanian Airplane with

US v Yunis

two US national on board (Article 5 of Hostage Taking Convention)

PROTECTIVE PRINCIPLE

State exercise its jurisdiction over aliens for wrongs committed abroad which is detrimental or prejudicial against the state’s security and interest. The state therefore enacted legislation to give itself jurisdiction over any matters producing effect in its territory (based on effect doctrine)

Eichmann’s Case Crimes committed by Eichman as against the Jewish people affected the vital interests of Israel, hence Israel shall have jurisdiction over this matter.

R v Neuman Alien abroad committed treason against South Africa =

South

Africa

has

jurisdiction

since

it

directly

threaten

South

Africa’s

independence/security/safety.

Malaysian Competition Act 2010 (law on cartel activities) CA 2010 applies to commercial activity transacted both inside and even outside Malaysia which has an effect on competition in any market in Malaysia. Law 510 Public International Law

Khairun Nisa Azwani

UNIVERSALITY PRINCIPLE This principle allows state to punish international crimes regardless of territorial or nationality link with the perpetrator or the victim. The state is said to have exercised its international jurisdiction. Usually the crimes are based on customary international law/international treaties.

Crimes under customary international law : piracy, slavery, war crimes, crimes against humanity, genocide, torture.

Crimes under treaties : Genocide - Genocide Convention 1948 Apartheid - International Convention on supression or punishment of crime of apartheid Torture - Torture Convention Hijacking - Tokyo Convention/Hague Convention/Montreal Convention Terrorism Drug trafficking

Re Piracy Jure Gentium In this case it was emphasised that piracy is the enemy of mankind, and thus, any state can seize the property of pirates and punish them all.

AG of Govt Israel v Eichmann Court affirmed that the act of respondent to exterminate some hundred thousand Jews was indeed a genocide and such crime falls under universality principle.

Law 510 Public International Law

Khairun Nisa Azwani

CONFLICT OF JURISDICTION

Jurisdiction of a state may be concurrent with jurisdiction of another state, or it may be exclusive. Two or more states may exercise jurisdiction against the same person/matter This is known as concurrent jurisdiction

When one or more states has a jurisdiction on basis of permitted by international law, the priority in terms of enforcement jurisdiction will be given to the state that actually has custody over the accused to deal with the matter.

Even a state with territorial jurisdiction (territorial jurisdiction is the most firmly established basis for jurisdiction) has no prior claim over state having custody over the accused.

The accused may be subjected to 2nd punishment. However have to read Art 13 Harvard Research Draft Convention (prohibition against double jeopardy for aliens but this provision doesnt protect nationals)

Law 510 Public International Law

Khairun Nisa Azwani...