Jurisdiction Flashcards
Jurisdiction
The extent of each State’s right to regulate conduct or the consequences of events
Where can jurisdiction be inferred from?
The principle of territorial sovereignty
Extraterritorial jurisdiction
The extension of the jurisdiction to acts that happen outside their territory
Aut dedere, aut judiciare
You don’t want to prosecute, you extradite
The principle re enforcement jurisdiction
A State may not exercise its power in any form in the territory of another State (unless there was consent)
Eichmann v A-G of Israel 1961
F: Eichmann suspected Nazi Germany war criminal who fled to Argentina, Israeli Secret Services went to Argentina and brought him back to Israel where he was executed
I: Was there a violation of Argentina’s sovereignty?
H: Yes, but Argentina didn’t complain
Prescriptive jurisdiction
State can prescribe their laws on whatever terms they like unless they have consented not to
Condition governing prescribing laws
States under IL have a duty to show that there is a valid connection under IL between the country prescribing laws and the individual they want to prescribe these laws over
5 Harvard Draft circumstances in which a State can prescribe their laws (1935)
- Territorial
- Nationality
- Protective
- Universal
- Passive personality
Territorial connection
You can prescribe your laws over conduct on your territory
Nationality connection
You can prescribe your laws over your nationals
Protective connection
This applies where the vital interest of a state is threatened
Universal connection
There are certain circumstances in which all states have an interest in making certain activities illegal
Passive personality connection
That’s where the connection between the state and the person they want to prosecute is that the victim of that person was of that state’s nationality
France v Turkey (S.S. Lotus) 1927
F: A collision of a Turkish and French ship on high seas, Turkey arrested the French officer that was on the Lotus
I: Could they do that?
H: Yes, the distinction between the prescriptive jurisdiction and the enforcement jurisdiction
Cutting 1886
F: A US national arrested and imprisoned when he entered Mexico for an incident against a Mexican national that happened in the US
I: Could Mexico do that?
H: The state wanting to prescribe their laws needs a justification
R v Horseferry Road Magistrates Court ex p Bennett 1993
F: Bennett a New Zealand citizen who fraudulently bought a helicopter in the UK and took it to Africa, Africa didn’t want to extradite him, then he was deported, when the plane stopped in London to refuel, UK police arrested him
I: Was there grounds for JR?
H: Yes, it was abuse of process and violation of HR law
R v Staines Magistrates Court ex p Westfallen 1998
F: Two individuals detained in Norway after being arrested in possession of some illegal passwords etc., British citizens, Norway decided to deport them and told the UK authorities to detain them when they get off the plane
I: Did Bennett apply here?
H: No, since Norwegians were entitled to deport them on their own terms and the UK police did not procure them in any way to do so
R v Mullen 1999
F: Mullen wanted by the Britis police as member of the IRA, escaped the UK but brought back to the UK by Zimbabwe, then denied a lawyer and convicted for 30 years in prison
I: Was there abuse of process
H: Yes, conviction quashed
Bankovic 1991
F: Case brought by the families of a number of Syrian citizens who were killed by a British aircraft during a bombing, alleged violation of Art 2
I: Whether the violations fell within a meaning of jurisdiction?
H: Two models:
- The spatial model - the effective overall control of an area, so Art 1 applies if there is overall control of the territory
- The personal model - Art 1 follows the acts of state agents, so the bombers would be liable
ECHR went for the spatial model
Issa 2004
F: A number of Iraqi shepherds near the Turkish border, the Turkish killed them and their families, although the Turkish operated in Iraq, had no spatial control over Turkey
I: Were they liable?
H: Yes, although no spatial control, the personal model used here
R (on the application of Al-Skeini and Ors) v SoS for Defence 2007
F: Deaths of Iraqi citizens killed by British soldiers during the occupation of Iraq, some of them caught in fighting and checkpoints
I: Were the soldiers liable?
H: Spatial model used, no effective overall control, apart from one who died in prison in British base
Al-Skieni 2011
Spatial model used explicitly, although in fact, it was Issa
Jaloud 2014
F: Jaloud killed at a checkpoint ran by Dutch armed forces in Iraq, the Dutch failed to investigate the killing, the general control in the area was British
I: Who was liable?
H: The Netherlands responsible as they had control over that checkpoint, also personal model implicitly supported
US v Alcoa 1945
The US asserted jurisdiction over the conduct of a non-US company that was a member of a cartel whose activities were intended to affect imports and exports to and from the US
Uranium Antitrust 1979
Uranium producers in a number of States formed a cartel primarily in order to maintain the world market price, making it unavailable for one US company to trade it as it was too expensive; US asserted jurisdiction
Subjective territorial jurisdiction
Exercise of prescriptive jurisdiction by a State in circumstances where it applies its law to an incident which is initiated within its territory, but completed outside its territory
Objective territorial jurisdiction
Exercise of prescriptive jurisdiction by a State where it applies its law to an incident that is completed within its territory, even though it was initiated outside its territory
- The effects doctrine
Arrest Warrant on passive personality jurisdiction
“Passive personality jurisdiction, for so long regarded as controversial… today meets with relatively little opposition, at least so far as a particular category of offences is concerned.”
E.g. Terrorism
