Jurisdiction to Prescribe, Adjudicate, and Enforce Flashcards
What does jurisdiction mean for the purposes of International Law?
In International Law, “jurisdiction” is defined as the assertion of authority by a State over people, things, and events.
What are the three types of jurisdiction in International Law?
I. Jurisdiction to prescribe: A state’s authority or competence to promulgate law applicable to persons or activities, typically promulgated by a legislature.
II. Jurisdiction to adjudicate: A state’s authority or competence to subject persons or things to its judicial processes.
III. Jurisdiction to enforce: A state’s authority or competence to induce or compel compliance with its law through its courts, as well as through executive, administrative, or police action.
The Case of the S.S. “Lotus” (France v. Turkey), P.C.I.J., Ser. A, No. 10, p. 4 (1927) ().
Facts: On August 2, 1926, a French steamship, the S.S. Lotus, collided with a Turkish steamship, the S.S. Bozkourt, on the high seas near Greece. Eight Turkish nationals aboard the Bozkourt fell overboard and drowned as a result of the collision, which was attributed to gross negligence on the Lotus’s watch officer’s part, a Lieutenant Demons. When the Lotus came ashore at Constantinople, Turkish authorities arrested and fined Demons for involuntary manslaughter. France and Turkey then asked the Permanent Court of International Justice (the ICJ’s predecessor) to determine whether Turkey acted in conflict with the principles of international law by instituting criminal proceedings against Demons.
Issue:
I. Did Turkey act in conflict with the principles of international law by instituting criminal proceedings against Demons?
II. Did Turkey have jurisdiction over Demons when the crime occurred on the high seas?
Holding/Rule:
I. No. A sovereign state is free to act as it wishes as long as it does not contravene an explicit prohibition in International Law (that which is not forbidden is allowed). This is known as the Lotus Principle.
II. Yes. What occurs on board a vessel on the high seas must be regarded as if it occurred on the territory of the State whose flag the ship flies. This is known as the Flag State Principle. If a crime occurs on one ship and produces an effect on another vessel from a different state, both territories are concerned, and therefore no International Law rule bars both states from having concurrent jurisdiction. This is known as the Effects Doctrine.
Reasoning:
I. Vessels on the high seas are considered to be the sovereign territory of whatever state whose flag they fly.
II. Demon’s crime occurred on the Lotus, a French-flagged vessel, but its effects were felt on the Bozkourt, a Turkish-flagged vessel.
III. The crime thus occurred on both the sovereign territory of France, and the sovereign territory of Turkey, and both states therefore have concurrent jurisdiction. No International Law rule bars Turkey from considering the crime to have occurred in its territory, and furthermore, no International Law rule bars Turkey from prosecuting a crime that occurred on its sovereign territory. As there are no express prohibitions against the behavior of Turkey, a sovereign state, Turkey’s actions are permissive and consistent with the principles of International Law.
What is the Effects Doctrine?
A state may exercise prescriptive jurisdiction over acts that occur outside the state’s territory, but otherwise have their effects felt within the state’s territory.
For example, the U.S. holds that American antitrust laws apply on foreign individuals and firms whose conduct impacts imports to, exports from, or prices within the United States.
What are the three presumptions that enable U.S. courts to limit the application of US law to acts, events and persons that are associated with the US?
I. The Presumption Against Extraterritoriality: the U.S. will limit the application of its law to its territory, even if extraterritoriality is allowed.
II. The Presumption of Statutory Interpretation: the U.S. will never interpret Congressional acts as to violate International Law if any other possible interpretation exists.
III. The Presumption for Comity: the U.S. will respect the sovereignty of other states, because other states will respect the U.S.’s sovereignty.
What is the Presumption Against Extraterritoriality?
Some states have adopted doctrines that limit themselves from applying their jurisdiction beyond their sovereign territory, even if such application would be allowed under International Law.
In other words, the presumption helps confine a state’s regulations to conduct that occurs within the state’s territories, and thus within the scope of their prescriptive jurisdiction under International Law.
Morrison v. Nat’l Australia Bank, Ltd., 571 U.S. 247 (2010) (affirming the presumption against extraterritoriality in U.S. law).
Facts: Australian plaintiffs purchased stock in an Australian banking company through transactions on the Australian stock market. The Australian plaintiffs sought compensation under Section 10(b) of the U.S. securities law prohibiting fraud in the sale of securities, for injuries caused by the bank’s allegedly misleading statements about its purchase in the United States of HomeSide Lending, a Florida Business that serviced Mortgages.
Issue: Did Section 10(b) of the U.S. securities law prohibiting fraud in the sale of securities provide a cause of action to foreign plaintiffs?
Holding/Rule: No. When a statute has no affirmative indication that it applies extraterritorially, it is presumed to only apply within U.S. territory.
Reasoning:
I. It is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.
II. Nothing in Section 10(b) provided any affirmative indication that the statute applied extraterritorially.
III. Because the transactions in question were conducted in a foreign stock exchange in Australia, and were not listed, nor purchased domestically in the United States, they are not covered by Section 10(b).
What are the main principles of extraterritorial jurisdiction?
I. Territorial Principle: jurisdiction within territory, including 12 nautical miles from coast, and airspace.
II. Nationality Principle: jurisdiction over state nationals abroad.
III. Protective Principle: jurisdiction over threats to state security abroad.
IV. Passive Personality: jurisdiction over foreigners who commit crimes against state nationals abroad.
V. Universal Jurisdiction: jurisdiction over heinous crimes prohibited by International Law committed abroad.
What is the Territorial Principle?
Sovereignty over a territory entitles a state to exercise prescriptive jurisdiction over people and events within said territory. Thus, foreign visitors are bound by the laws of a state when present in the state’s territory.
For jurisdictional purposes, a state’s sovereign territory extends up to 12 nautical miles from its coast, and the airspace above its land and territorial sea.
What is the Nationality Principle?
A state’s courts have jurisdiction over the state’s nationals, even if the nationals are located outside of the state’s territory.
What is the Protective Principle?
A state’s courts have jurisdiction over individuals outside of their territory, when said individuals threaten the state’s national security or other national interests.
What is Passive Personality?
A state’s courts have jurisdiction over foreign individuals who commit crimes against the state’s nationals outside the state’s territory.
What is Universal Jurisdiction?
A state’s courts have jurisdiction that transcends all borders over individuals in regards to particularly heinous crimes, such as war crimes, genocide, and crimes against humanity, regardless of where the crimes were committed, the nationality of the perpetrator, or the identity of the victim.
United States v. Yousef, 327 F.3d 56 (2d Cir. 2003) (Limiting the scope of the Universal Jurisdiction principle).
Facts: Defendant Yousef was charged with the bombing of a Philippines Airlines flight under the American Aicraft Sabotage Act of 1984. The Defendant argued that because the plane was not American, that it was flying between countries outside the US, and that no US citizens were on the flight, the U.S. had no jurisdiction to prescribe.
Issue: Does the US have jurisdiction over a terrorist crime that does not affect the US directly?
Holding/Reasoning: No. Under the universality principle, the crime was not of a nature that transcends borders, and any state’s courts has jurisdiction to try the criminal. Furthermore, there is no international consensus on the definition of terrorism or its proscription.
Attorney-General of the Gov’t of Israel v. Eichmann, 36 I.L.R. 5 (1961) (Granting jurisdiction despite irregular rendition).
Facts: Adolf Eichmann, former Obersturmbannführer of the German SS, was captured by Israeli Mossad agents while living in Argentina under an assumed name. The agents took him to Israel against his will to stand trial for his crimes during the Second World War. Eichmann argued that Israel had no jurisdiction to try him because he was illegally taken from another nation.
Issue: Does an individual’s illegal arrest and transport to a state’s jurisdiction (irregular rendition) bar that state from exercising jurisdiction over the individual once he is in the state’s territory?
Holding: The court held that Eichmann could be tried in Israel because the illegality of his arrest holds no bearing on the court’s jurisdiction. Furthermore, only a sovereign state may raise a plea or waive it in regards to illegal arrests that violate the sovereignty of the state.
Holding/Rule: No. A person being tried for an offense against the laws of a State may not oppose his trial by reason of the illegality of his arrest or of the means whereby he was brought within the jurisdiction of that State.
Reasoning:
I. Because Argentina settled with and exonerated Israel after raising a plea that Israel had violated Argentina’s sovereignty by kidnapping Eichmann, there was no dispute on the circumstances of Eichmann’s arrest, and he could be tried in the Israeli court.
II. Eichmann could be tried in Israel because the illegality of his arrest holds no bearing on the court’s jurisdiction. Furthermore, only a sovereign state may raise a plea or waive it in regards to illegal arrests that violate the sovereignty of the state.
III. Eichmann’s crimes during the Second World War involved genocide, which are covered by the universality principle, further granting jurisdiction to Israel.
