Week 5

Public International Law - Jurisdiction

• Territorial Jurisdiction:
  • A state has sovereignty over its territory and can prosecute acts within its boundary.
  • This includes land, airspace, internal waters, territorial seas, and national aircraft/vessels.
  • Subjective Territorial Principle: A state can prosecute crimes initiated within its territory, even if completed elsewhere.
  • Objective Territorial Principle: A state can prosecute crimes that, although initiated elsewhere, had significant consequences or a completion within its territory.

Lotus Case (PCIJ 1927)

• Collision between a French and Turkish ship on the high seas resulted in the death of Turkish nationals.
• Turkey initiated criminal proceedings against a French officer.
• The French government argued Turkey lacked jurisdiction due to the incident occurring on the high seas.
• The Permanent Court of International Justice (PCIJ) ruled in favor of Turkey, stating that a state is free to exercise jurisdiction unless prohibited by international law.
• This demonstrates the absence of a strict prohibition against exercising jurisdiction outside the state's territory.

Nationality Jurisdiction

• States can exercise jurisdiction over their nationals, irrespective of location.
  • Active Personality Principle: A state can prosecute its own nationals for crimes committed anywhere in the world.
  • Passive Personality Principle: A state can prosecute foreigners for crimes against its nationals committed elsewhere, although this principle is controversial.
• Determining nationality can be complex, with factors including jus soli (place of birth), jus sanguinis (citizenship of parents), acceptance of public office, marriage, and permanent residence.

Protective Principle

• A state can exercise jurisdiction over non-nationals when their actions threaten the state's security, territorial integrity, or political independence (even if the act occurs outside the state's territory).
• Actual harm is not always necessary for this principle to apply.

Universal Jurisdiction

• When acts are so grave they violate international law and threaten the international community, all states may prosecute.
• This principle's historical roots include piracy and often extends to gross violations of human rights (torture, genocide, war crimes).
• Universal jurisdiction has been used in various contentious cases, including those involving individuals with a strong international character or whose actions have serious harmful consequences for the international community.

Constraints on Jurisdiction

• Foreign nationals are generally expected to obey the laws of a state.
• International law establishes a minimum standard for treatment of foreign nationals.
• Expropriation: Taking the property of a foreign national is prohibited under international law unless it meets specific criteria (e.g., for a public purpose, non-discriminatory, accompanied by just compensation).

Extradition

• Extradition is the surrender of an alleged criminal by one state to another for prosecution.
• International treaties are necessary to establish a legal basis for extradition.
• States are not obligated to extradite an individual to another country in the absence of an extradition treaty.

Concurrent Jurisdiction

• It is possible for multiple states to claim jurisdiction over a single act.
• The state where the suspect is located or imprisoned has a presumptive stronger claim for jurisdiction.
• Obligation to extradite or prosecute (aut dedere, aut judicare): states may have a duty to either extradite a suspect to another state that claims jurisdiction or prosecute the suspect themselves.

Extraterritorial Jurisdiction

• States can assert jurisdiction over actions taking place outside their territory under specific circumstances.
• The "effects doctrine" allows jurisdiction if the effects within the state are significant enough to authorize prosecution.
• Historical examples include piracy, slave trade.
• Modern examples include serious human rights violations (e.g., genocide, war crimes, torture) as well as international cooperation to prosecute these violations through specialized bodies like the International Criminal Court (ICC).