internationaal week 3 Flashcards
Jurisdiction
legal power over natural and legal persons, property and events
Prescriptive jurisdiction
right of a State to apply its national laws = Recht van een Staat om haar nationale wetten toe te passen op elke persoon, eigendom of gebeurtenis
Adjudicative jurisdiction
right of national courts to receive and determine cases referred to them = Recht van Gerechtshoven om zaken in ontvangst te nemen en over zaken te beslissen die aan hen worden toegewezen
Enforcement jurisdiction
right of a State to physically enforce laws
5 exceptions on prescriptive jurisdiction
- Territory: act occurs on a State’s territory - land, territorial sea, or air (special rules for aircraft and ships)
a) Objective territoriality: act completed or has effects on territory
b) Subjective territoriality: act initiated or planned on territory - Active personality (nationality): individual acting on or beyond State territory is a national of the State
- Passive personality (controversial and subsidiary): individual acted upon is a national of the State
- Effects (protective): a State’s vital interest is genuinely threatened or negatively affected by the act (e.g., falsification of State-issued seals, currency, passports,
documents etc.) - Universal: no direct connecting factor, all States have jurisdiction:
a) to avoid a legal vacuum (e.g., piracy);
b) to end impunity for serious crimes under international law that violate jus cogens norms; and
c) pursuant to treaty obligations to prosecute or extradite (aut dedere aut judicare) (e.g., international terrorism treaties)
Jurisdiction to enforce
States cannot arrest individuals and seize property on the territory of another State without its consent.
Extradition
State transfers custody of alleged criminal to another State for prosecution so long as principles of
- double criminality and - double jeopardy are respected, as well extraditing State’s
- human rights duties
State immunity from national jurisdiction
States are equal territorial units that exercise prescriptive, adjudicative and enforcement jurisdiction over people, property & events on their territory (host or forum State).
Sovereign (State) immunity
for a foreign State and its property in the territory of the host (forum) State; for civil claims.
- Sovereign equality of States means a State cannot require another State to submit to its national courts.
- Adjudicative immunity: foreign State cannot be sued in national court of host (forum) State absent consent (waiver of immunity)
- Enforcement immunity: judgment cannot be executed in host (forum) State against foreign State absent latter’s additional consent (waiver of immunity)
Restrictive State immunity from adjudicative jurisdiction
restrictive approach: immunity from adjudicative jurisdiction only for sovereign or governmental acts of the foreign State, not commercial or private acts
Why? Fairness considerations, competing with private individuals and corporations
State? Activities of State organs, constituent units (subdivisions), agencies, and representatives
- National court must determine if foreign State immunity respected (latter need not appear in court or claim this)
When does State immunity not apply?
United Nations Convention on Jurisdictional Immunities of States and their Property (2004): many parts custom & adopts restrictive approach to adjudicative jurisdiction
1. No immunity for commercial transactions
Whether a contract is commercial is determined by reading it. What is its nature (e.g., dealing with industry, trade, profession) and purpose (e.g., sales or loans)?
Exceptions (immunity applies!):
a. commercial activity between States;
b. parties (including foreign State) agree to immunity; or
c. foreign State entity has ‘independent legal personality’
- No immunity for employment contracts between foreign State and individuals
Lots of exceptions (immunity applies!) (e.g., employee enjoys diplomatic immunity, national security interests at play, State and employee agree to immunity) - No immunity for personal injuries and damage to property
a. death/injury to person or damage/loss of property;
b. conduct attributable to State;
d. conduct occurred on territory of forum (host) State; and
e. author of conduct present in forum (host) State when conduct occurred
Exception: States agree otherwise - No immunity regarding ownership, possession or use of property
Matter concerns any right, interest or obligation of a foreign State in immovable property in forum (host) State
Exception: States agree otherwise
Personal immunity for high-ranking State representatives (ratione personae)
- High-ranking foreign State representatives
- Total immunity from host (forum) State’s jurisdiction in civil & criminal cases for official & private acts performed before & during their term of office
- Immunity ratione personae from criminal jurisdiction relates to adjudication and enforcement
- Immunity ratione personae ends when high-ranking State representative leaves office
- State can waive immunity ratione personae but this does not affect underlying State immunity
- National court must determine if high-ranking foreign State representative’s immunity is respected (latter need not appear in court or claim this)
Functional immunity for all State representatives (ratione materiae)
- Immunity for acts performed on behalf of the State they represent
- All State representatives, high and low-ranking, enjoy immunity ratione materiae
3 Exceptions (no immunity from adjudicative civil jurisdiction):
- acts relating to private immovable property
- succession where individual acts as an executor, administrator, heir or legatee (privately or professionally)
- commercial activities exercised outside official functions
International Criminal Court
- Permanent Court
- Prosecutes individuals, not states!
- Competent to prosecute crimes that are not investigated and prosecuted by a state that has jurisdiction over it (= principle of ‘complementarity’)
- The founding treaty of the ICC: the Rome Statute
