Jurisdiction Flashcards
Distinguish jurisdiction to prescribe from jurisdiction to enforce.
Jurisdiction to prescribe refers to a State’s power to assert the applicability of its national law to any person, property or event, wherever located.
Jurisdiction to enforce – Enforcement of prescriptive jurisdiction
The crucial difference is that a State has unfettered power to prescribe within its own jurisdiction while enforcement of jurisdiction requires D’s presence on your territory.
When can State A lawfully exercise jurisdiction to enforce on the territory of another state?
Lotus - Municipal laws cannot lawfully be exercised on the territory of another state unless there is an express permissive rule of custom or treaty.
How may we identify the boundaries of rules as to jurisdiction?
Rules as to jurisdiction are essentially permissive (at least as to jurisdiction to enforce) and so we must observe State practice to identify their boundaries - what is the point at which States protest?
Summarise the territorial principle.
All crimes committed or alleged to have been committed within the territorial jurisdiction of a State may come before the municipal courts and the accused if convicted may be sentenced, even where D is a foreigner (Pinochet No.3)
Lotus (territorial principle)
Both the state where the offence was commenced and that where the offence was concluded may try D
Summarise the nationality principle, and give an example.
A State may enforce jurisdiction over its own nationals (Western European countries claim jurisdiction over crimes committed by their nationals even if committed outside their territory). E.g. many states, the UK included, prescribe and enforce jurisdiction over child sex offences committed abroad.
Summarise the protective principle, and give two examples of cases where it was approved.
A state may assert its authority over matters adversely affecting the state’s fundamental interests. This principle was cited in Joyce and Eichmann.
Summarise the protective principle, and give two examples of cases where it was approved.
A state may assert its authority over matters adversely affecting the state’s fundamental interests. This principle was cited in Joyce and Eichmann.
Distinguish the effects doctrine from the protective principle, give an example and explain why it is controversial.
The “effects” doctrine operates where states enact legislation to give themselves jurisdiction over any matters which produce an effect in their territory, not necessarily to some fundamental public or national interest.
The classic example would be US anti-trust legislation, which also illustrates the key controversy - what if the acts over which jurisdiction are claimed are lawful in the states in which they took place? In Hartford US SC found that so long as UK legislation did not compel Ds to act as they did there was no real conflict with UK legislation, notwithstanding UK law allowed Ds to act as they did
Summarise the Passive Personality Principle. What is its current status in international law?
A state may claim jurisdiction to try an individual for offences committed abroad which have affected or will affect nationals of the state.
Formerly controversial (e.g. Judge Moore in Lotus), it is now accepted that PPP is good law (Judge Kooijmans, Congo v Belgium)
What are the two objections Dixon canvasses to the PPP?
- It is generally of little practical value, for where it applies either the PPP or the territorial principle will also apply.
- The practical effect is to give a national the protection of his home state’s laws wherever he goes, so that all persons who encounter him are themselves subject to the laws of his home state, even where that conflicts with their nation’s laws
Summarise the Universality Principle. What is its status in international law (ICJ and ECtHR)?
In respect of crimes exceptionally destructive of the intl order, all states may exercise universal jurisdiction.
In Arrest Warrant Higgins, Kooijmans and Buergenthal observed this and concluded that at best universal jurisdiction is a developing principle. The majority thought it only applied to piracy; the minority thought it also applied to war crimes, crimes against humanity and genocide.
In Jorgic v Germany the ECtHR accepted that the fact that Germany was under an erga omnes obligation to prevent and punish genocide meant it could exercise jurisdiction over genocide if their domestic laws established extraterritoriality in this respect
What is the main obstacle to the development of universal jurisdiction as a principle of international law?
Any need for further development of universal jurisdiction may be eliminated by the express creation of intl bodies w/ general and effective jurisdiction over criminals (ICC) or of municipal bodies imbued w/ universal jurisdiction (intl piracy court in Kenya).
Summarise the Universality Principle. What is its status in international law (ICJ and ECtHR)?
In respect of crimes exceptionally destructive of the intl order, all states may exercise universal jurisdiction. O Keefe offers a “negative” definition - the assertion of jurisdiction to prescribe in the absence of any other accepted jurisdictional nexus at the time of the relevant conduct
In Arrest Warrant Higgins, Kooijmans and Buergenthal observed this and concluded that at best universal jurisdiction is a developing principle. The majority thought it only applied to piracy; the minority thought it also applied to war crimes, crimes against humanity and genocide.
In Jorgic v Germany the ECtHR accepted that the fact that Germany was under an erga omnes obligation to prevent and punish genocide meant it could exercise jurisdiction over genocide if their domestic laws established extraterritoriality in this respect
Summarise the Universality Principle. What is its status in international law (ICJ and ECtHR)?
In respect of crimes exceptionally destructive of the intl order, all states may exercise universal jurisdiction. O Keefe offers a “negative” definition - the assertion of jurisdiction to prescribe in the absence of any other accepted jurisdictional nexus at the time of the relevant conduct
In Arrest Warrant Higgins, Kooijmans and Buergenthal concluded that at best universal jurisdiction is a developing principle. The majority thought it only applied to piracy; the minority thought it also applied to war crimes and crimes against humanity.
In Jorgic v Germany the ECtHR accepted that the fact that Germany was under an erga omnes obligation to prevent and punish genocide meant it could exercise jurisdiction over genocide if their domestic laws established extraterritoriality in this respect
