STATE JURISDICTION UNDER INTERNATIONAL LAW

Definition
State jurisdiction is the capacity of a State under International Law to prescribe
the rules of law, enforce the prescribed rules of law and to adjudicate. State
Jurisdiction, also means that a state court has the right to make a legally binding
decision that affects the parties involved in the case. It is derived from State
sovereignty and constitutes its vital and central feature. It is the authority of a
State over persons, property and events which are primarily within its territories.

SCOPE & EXTENT OF STATE JURISDICTION

State jurisdiction may extend beyond its territory over persons and things which
have a national link. There are grounds or principles upon which the State can
assert its jurisdiction within and beyond its boundaries.
Nevertheless, there are certain persons, property and events within a State
territory which are immune from its jurisdiction.

Types of State Jurisdiction

a. Legislative jurisdiction
Legislative jurisdiction is the capacity of a State to prescribe rules of law. A State
has the supremacy to make binding laws within its territory. It has legislative
exclusivity in many areas. This supremacy is entrusted to constitutionally
recognized organs.
Although legislation is primarily enforceable within a state territory, it may
extend beyond its territory in certain circumstances. International Law, for
example, accepts that a State may levy taxes against persons not within its
territory as long as there is a real link between the State and the proposed
taxpayer, whether it is nationality or domicile.
The legislative supremacy of a State within its territory is well established in
International Law. However, this supremacy may be challenged in cases where a
State adopts laws that are contrary to the rules of International Law. In such
cases, a State will be liable for breach of International Law. A State may also be
liable for breach of International Law if it abuses its rights to legislate for its
nationals abroad.

b. Executive Jurisdiction
It is the capacity of a State to act and to enforce its laws within its territory.
Generally, since States are independent of each other and possess territorial
sovereignty, they have no authority to carry out their functions on foreign
territory. No state has the authority to infringe the territorial sovereignty of
another State. In this sense, a State cannot enforce its laws upon foreign
territory without the consent of the host State; otherwise it will be liable for
breach of International Law.

c. Judicial Jurisdiction
It is the capacity of the courts of a State to try legal cases. A State has an
exclusive authority to create courts and assign their jurisdiction, and to lay down
the procedures to be followed. However, in doing so, it cannot by any means
alter the way in which foreign courts operate.
There are a number of principles upon which the courts of a State can claim
jurisdiction. In civil matters, the principles range from the mere presence of the
defendant in the territory of a State to the nationality and domicile principles. In
criminal matters, they range from territorial principle to universality principle.

PRINCIPLES OF JURISDICTION
Generally, the exercise of civil jurisdiction by courts of a State has been claimed
upon far wider grounds than has been the case in criminal matters.

Principles of Criminal Jurisdiction

As far as criminal jurisdiction is concerned, the grounds or principles of
jurisdiction mostly invoked by States are as follows.

1. The Territorial Principle

This principle is derived from the concept of State sovereignty. It means that a
State has the primary jurisdiction over all events taking place in its territory
regardless of the nationality of the person responsible. It is the dominant ground
of jurisdiction in International Law. All other State must respect the supremacy
of the State over its territory, and consequently must not interfere in its internal
affairs or in its territorial jurisdiction.
The territorial jurisdiction of State extends over its land, its national airspace, its
internal water, its territorial sea, its national aircrafts, and its national vessels. It
encompasses not only crimes committed on its territory but also crimes that
have effects within its territory. In such a case a concurrent jurisdiction occurs, a
subjective territorial jurisdiction may be exercised by the State in whose
territory the crime was committed, and an objective territorial jurisdiction may
be exercised by the State in whose territory the crime had its effect.
Although jurisdiction is primarily and predominantly territorial, it is not
exclusive. A State is free to confer upon other States the right to exercise
certain jurisdiction within its national territory. States are free to arrange the
right of each one to exercise certain jurisdiction within each national territory.
The most significant recent examples of such arrangements are:
• The 1991 France-United Kingdom Protocol Concerning Frontier Control and
Policing, under which the frontier control laws and regulations of each State are
applicable and may be enforced by its officers in the control zones of the other;
• The 1994 Israel-Jordan Peace Treaty, under which the Israeli criminal laws are
applicable to Israeli nationals and the activities involving only them in the
specified areas under Jordan’s sovereignty, and measures can be taken in the
areas by Israel to enforce such laws.
Lotus Case (France v Turkey) 1927

Facts of the Case:

A collision occurred on the high seas between a French vessel – Lotus – and a
Turkish vessel – Boz-Kourt. The Boz-Kourt sank and killed eight Turkish nationals
on board the Turkish vessel. The 10 survivors of the Boz-Kourt (including its
captain) were taken to Turkey on board the Lotus. In Turkey, the officer on
watch of the Lotus (Demons), and the captain of the Turkish ship were charged
with manslaughter. Demons, a French national, was sentenced to 80 days of
imprisonment and a fine. The French government protested, demanding the
release of Demons or the transfer of his case to the French Courts. Turkey and
France agreed to refer this dispute on the jurisdiction to the Permanent Court of
International Justice (PCIJ).

Questions before the Court:

Did Turkey violate international law when Turkish courts exercised jurisdiction
over a crime committed by a French national, outside Turkey? If yes, should
Turkey pay compensation to France?

The Court’s Decision: Turkey, by instituting criminal proceedings against

Demons, did not violate international law.

Relevant Findings of the Court:

Establishing Jurisdiction: Does Turkey need to support its assertion of jurisdiction

using an existing rule of international law or is the mere absence of a prohibition
preventing the exercise of jurisdiction enough?

The first principle of the Lotus Case: A State cannot exercise its jurisdiction
outside its territory unless an international treaty or customary law permits it to
do so. This is what we called the first principle of the Lotus Case. The Court held
that:
“Now 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.” (para 45)

The second principle of the Lotus Case: Within its territory, a State may exercise
its jurisdiction, in any matter, even if there is no specific rule of international law
permitting it to do so. In these instances, States have a wide measure of
discretion, which is only limited by the prohibitive rules of international [Link]
Court held that:
“It does not, however, follow that international law prohibits a State from
exercising jurisdiction in its own territory, in respect of any case which relates to
acts which have taken place abroad, and in which it cannot rely on some
permissive rule of international law. Such a view would only be tenable if
international law contained a general prohibition to States to extend the
application of their laws and the jurisdiction of their courts to persons, property
and acts outside their territory, and if, as an exception to this general
prohibition, it allowed States to do so in certain specific cases. But this is
certainly not the case under international law as it stands at present. 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 their territory, it leaves them in this respect a wide measure of
discretion, which is only limited in certain cases by prohibitive rules; as regards
other cases, every State remains free to adopt the principles which it regards as
best and most suitable. This discretion left to States by international law
explains the great variety of rules which they have been able to adopt without
objections or complaints on the part of other States …In these circumstances all
that can be required of a State is that it should not overstep the limits which
international law places upon its jurisdiction; within these limits, its title to
exercise jurisdiction rests in its sovereignty.” (paras 46 and 47)

This applied to civil and criminal cases. If the existence of a specific rule was a
pre-requisite to exercise jurisdiction, the Court argued, then “it would…in many
cases result in paralysing the action of the courts, owing to the impossibility of
citing a universally accepted rule on which to support the exercise of their
[States’] jurisdiction” (para 48).

The Court based this finding on the sovereign will of States. It held that:
“International law governs relations between independent States. The rules of
law binding upon States therefor emanate from their own free will as expressed
in conventions or by usages generally accepted as expressing principles of law
established in order to regulate the relations between these co-existing
independent communities or with a view to the achievement of common aims.
Restrictions upon the independence of States cannot therefore be presumed

2. The Nationality Principle

The nationality principle implies that a State jurisdiction extends to its nationals
and actions they take beyond its territory. It is based upon the notion that the
link between the State and its nationals is a personal one independent of
location.
Criminal jurisdiction based on the nationality principle is universally accepted.
While civil law countries make extensive use of it, the Common Law countries
use it with respect to major crimes such as murder and treason. The Common
Law countries, however, do not challenge the extensive use of this principle by
other countries.
a) A State may prosecute its nationals for crimes committed anywhere in the
world; the ground of this jurisdiction is known as active nationality principle.
See Joyce v DPP
b) Also, it may claim jurisdiction for crimes committed by aliens against their
nationals abroad; the ground of this jurisdiction is known as passive
nationality principle.

Passive nationality/ personality principle

This is a situation where the accused will be prosecuted in the country of the
nationality of the victim. In other words, criminal jurisdiction under this principle
is exercised by the State of the victim’s nationality in situations where the crime
takes place abroad.
Note that this principle has been viewed as much weaker than the territorial or
active nationality principle as a basis for jurisdiction. It has been considered as a
secondary basis for jurisdiction, and a matter of considerable controversy
among States. The principle historically faced the staunchest opposition by US,
now an ardent contemporary supporter. In the Cutting case, for instance, a US
citizen was arrested in Mexico for a libel charge against a Mexican national The
action for which the libel was charged had been committed whilst its author was
in the US, but his arrest was effectuated much later during the author’s
subsequent trip to Mexico. The US Government vigorously opposed Mexico’s
claim of jurisdiction and the case was finally discontinued.
In recent years, however, this principle has come to be much acceptable by the
international community in the sphere of terrorist and other internationally
condemned crimes.
The principle became entrenched in the judicial practice of US particularly
following the case of USA v Yunis. (1991) 88 ILR 176 In that case the accused,
Yunis, had been responsible for hijacking a Jordanian airliner in Beruit with two
US passengers on board. The plane flew to several locations around the
Mediterranean Sea and eventually flew back to Beruit, where the hijackers blew
up the plane and then escaped to the hills. Yunis was indicted for violating the
US Hostage Taking Act. Yunis argues that the US could not prosecute him for a
hijacking that he perpetrated when its only connection to the US was that
Americans were on board the plane. It must be recalled that Lebanon at the
time was a failing State that was unable to prosecute people like Yunis. US
claimed jurisdiction based on the passive personality principle and prosecuted
Yunis subject to US laws on hostages taking.
See also In the Matter of Extradition of Atta 104 ILR 52; Rees v Secretary
of State for the Home Department [1986] 2 All ER 321
3. The Protective Principle
The protective principle implies that a State may exercise jurisdiction over an
alien who commits an act outside its territory, which is deemed prejudicial to its
security and interests.
It is universally accepted, although there are uncertainties as to its practical
extent, particularly as regard to the acts which may come within its domain. It is
justified on the basis of protection of State’s vital interests, particularly when the
alien commits an offence prejudicial to the State, which is not punishable under
the law of the country where he resides and extradition is refused.
Although the protective principle is used as a secondary basis for jurisdiction
and in a narrower sense than the territorial or the nationality principle, it can
easily be abused, particularly in order to undermine the jurisdiction of other
States.
In practice however, this principle is applied in those cases where the acts of the
person which take place abroad constitute crimes against the sovereignty of the
State, such as plots to overthrow a government, treason, espionage, forging a
currency, economic crimes and breaking immigration laws and regulations.
In Re Urios (1920) 1 AD 107, a Spanish national was convicted of espionage on
accounts of his contacts against the security of France, albeit whilst in Spain,
during the First World War.

In Joyce v DPP, HL 1948, the defendant was an American citizen but held a
British passport (fraudulently obtained). After the outbreak of war between
Great Britain and Germany in 1939, he delivered from German territory
broadcast talks in English hostile to Great Britain.

His conviction for treason was upheld by the House of Lords

Lord Jowitt LC referred to ‘the reciprocal duties of protection and allegiance’
between a citizen and the state, saying: ‘The contention is a different one: it is
that by the holding of a passport he asserts and maintains the relation in which
he formally stood, claiming a continued protection of the Crown and thereby
pledging the continuance of his fidelity. In these circumstances I am clearly of
the opinion that so long as he holds the passport he is within the meaning of the
statute a man who, if he is adherent to the King’s enemies in the realm or
elsewhere commits an act of treason . . Moreover the special value to the
enemy of the appellant’s services as a broadcaster was that he could be
represented as speaking as a British subject and his German workbook showed
that it was in this character that he was employed, for which his passport was
doubtless accepted as the voucher’.
This principle is often used in treaties providing for multiple jurisdictional
grounds with regard to specific crimes, such as the 1979 Hostage Convention
and the 1970 Hague Aircraft Hijacking Convention.
The House of Lords assumed jurisdiction based on the protective principle. This
case also demonstrates that as far as the enforcement of protective principle is
concerned, nationality is irrelevant. In other words, a state may assert
jurisdiction over crimes committed by its own nationals outside of its territory
which are prejudicial to the state’s interests.
Relying on Joyce v DPP, the District Court of Jerusalem upheld, inter alia, the
applicability of protective jurisdiction in the Eichmann Case (Eichmann v Isreal
(1962) 36 ILR 277). In this case the accused, Adolf Eichmann, was responsible
for implementing the infamous Hitler’s Final Solution programme (which
included the internment and extermination of Jewish people during World War
II). When the war ended, Eichmann escaped to Argentina, where years later, he
was kidnapped by Israeli officers and forcibly brought to Israel for trial under the
1951 Nazi and Nazi Collaborators Law for war crimes, crimes against the Jewish
people and crimes against humanity. Eichmann challenged the Israeli court’s
jurisdiction, arguing that the court was not empowered to adjudicate the case
against him because his illegal kidnapping by Israeli agents violated
international law. The Isreali Supreme Court affirmed the District Court’s
judgment holding that, a country whose ‘vital interests’ and ultimately its
existence are threatened, such as in the case of the extermination of the Jewish
people, has a right to assume jurisdiction to try the offenders.
It is also possible for allied states who share common interest to claim
protective jurisdiction individually to safeguard this common interest. This is
true especially in cases where an action against one State is deemed to have
either direct or indirect impact on the other. In Re van den Plas 22 ILR 205, for
example, a Belgian national was held liable for acts of espionage against
Belgium by a French tribunal on the basis that his conduct was injurious to the
interests of both France and Belgium.

4. The Universality Principle

The universality principle, in its broad sense, implies that a State can claim
jurisdiction over certain crimes committed by any person anywhere in the world,
without any required connection to territory, nationality or special State interest.
Before the Second World War, such universal jurisdiction has been considered as
contrary to International Law by the Common Law countries, except for acts
regarded as crimes in all countries, and crimes against international community
as a whole such as piracy and slave trade.
After the Second World War, universal jurisdiction has been universally
recognized over certain acts considered as international crimes. International
crimes are those committed against the international community as a whole or
in violation of International Law and punishable under it, such as war crimes,
torture, crimes against peace and crimes against Humanity. In recent years,
crimes such as Hijacking of aircraft, violation of human rights and terrorism,
have been added to the list of international crimes.
It is however, important to note that there have been disagreements with the
US Court of Appeal judgment in US v Yunis (No 3) 88 ILR 176, at 82, that
hijacking is a clear case of an international crime endowed with universal
jurisdiction.
For the avoidance of doubt, Principle 2 (1) of the Princeton Principles of
Universal Jurisdiction lists the following as serious international crimes
subject to universal jurisdiction: Piracy, slavery, war crimes, crimes against
peace, crimes against humanity, genocide and torture, without necessarily
excluding it with regard to other offences.
Ilias Bantekas in his book International Criminal Law, at p 345, spells out the
basis of attaching universal jurisdiction to certain crimes as follows:
1. The repugnant nature and scale of the conduct, as is the case with grave
breaches of humanitarian law and crimes against humanity;
2. The inadequacy of domestic law and enforcement in respect of unlawful
conduct committed in locations not subject to the authority of any State,
such as the high seas.

Currently, under the universality principle, each State and every State has
jurisdiction over any of the international crimes committed by anyone anywhere.

Re Pinochet (No 3) (R v Bow Street Metropolitan Stipendiary

Magistrate and Others, Exparte Pinochet Ugarte (No 3) [1999] 2 All ER
97)
On the question as to whether a former Chilean dictator Augusto Pinochet could
claim state immunity from torture allegations made by a Spanish court and
therefore evade extradition to Spain, The House of Lords, per Lord Millet,
succinctly argued that international crimes attract universal jurisdiction where
they violate a rule of jus cogens, are serious and perpetrated on a large scale
that they can be regarded as an attack against international legal order.

US v Noriega
General Manuel Noriega on February 14th 1988 was indicted on twelve counts
of engaging in a criminal enterprise in violation of U.S racketeering and drug
laws. The indictment alleged that Noriega participated in an international
conspiracy to import cocaine and materials used in producing cocaine in and out
of the United States. He was also alleged to have protected shipments of
cocaine from Columbia through Panama to the U.S. All these activities were
allegedly taken for Noriega’s own profit.
Noriega asserted that the case against him should be dismissed because:
a) The District court of Florida lacked jurisdiction
b) Sovereign immunity precluded the exercise of jurisdiction
c) He was captured and brought before the court as a result of an illegal military
invasion
d) A violation of international treaties had occurred.
The court found that it had extra-territorial jurisdiction as such jurisdiction was
upheld in the past over foreigners who conspired or intended to import narcotics
into the United States. The crimes that Noriega was charged with were intended
to have extra-territorial effects as such the court’s jurisdiction was reasonable.
Jurisdiction was also justified under the protective principle which permits the
exercise of jurisdiction over acts that threaten the existence of a state and have
potentially deleterious effects in the state. The alleged importation of certain
pounds of cocaine would have harmful effects.
As for the question of immunity, recent international practices have drawn a
distinction between private and public acts entitled to immunity. As with states,
immunity is extended to public officials for acts executed in their official
capacity. Since the acts carried out by Noriega were for his personal gain, he
was not entitled to immunity.
The head of state immunity applies where one is recognized as the head of state
by the immunizing state. In Noriega’s case it was evident that he was not
recognized as the head of state by the Panamian constitution or by the United
States.

In terms of international comity and reasonableness, at least the locus delicti

State or the forum deprehensionis enjoys primary jurisdiction unless it is
genuinely unable or unwilling to prosecute.