Jurisprudence

Question 1

What is jurisprudence?

Answer 1

The power of states to regulate affairs pursuant to its laws.

Question 2

What is the main difficulty with extra territoriality?

Answer 2

Sovereignties overlap and general IL has not yet developed a hierarchy of lawful jurisdiction claims.

Question 3

What are the three forms of jurisdiction?

Answer 3

1) Legislative jurisdiction
2) Adjudicative jurisdiction
3) Executive jurisdiction

Question 4

What is legislative jurisdiction?

Answer 4

The right of a state to pass laws that have a bearing on conduct

Question 5

What is adjudicative jurisdiction?

Answer 5

Extent to which domestic courts can apply their state’s laws and pass judgment on matters before them

Question 6

What is problem with exercising adjudicative jurisdiction abroad?

Answer 6

By passing judgments over offences committed abroad, possible Courts are intervening in domestic affairs of the state.

Question 7

What is executive jurisdiction?

Answer 7

Right to effect legal process, eg arresting someone or undertaking searches and seizures.

Question 8

What did the lotus case say on executive jurisdiction?

Answer 8

1) First and foremost restriction on state = may not exercise its power in any form in the territory of another state.
2) Instead of laying down general prohibition so that states can’t extend their laws and jurisdiction abroad, IL leaves them a wide measure of discretion which is only limited in certain cases by prohibitive rules.

Question 9

Is the approach in the lotus case the same today?

Answer 9

No:

Doesn’t reflect state practice today - states usually rely on positive grounds of jurisdiction rather than absence pf prohibition.

Question 10

What cases was executive jurisdiction mentioned?

Answer 10

1) Eichmann
2) Nikolic (ICTY) - correct balance must be maintained between fundamental rights of the accused and the essential interests of the int community in the prosecution.

Question 11

What are the four main basis of jurisdiction?

Answer 11

1) Territorial principle
2) Nationality principle
3) Passive personality principle
4) Protective principle

Question 12

What does the territorial principle do?

Answer 12

Allows states to exercise jurisdiction over crimes occurring within their territory.

Question 13

What are the two types of territoriality?

Answer 13

1) Objective territoriality - originates abroad.

2) Subjective territoriality - completed elsewhere.

Question 14

What does the nationality principle do?

Answer 14

Allows states to exercise jurisdiction with respect to conduct of their nationals abroad.

Test for nationality: Nottebohm

Question 15

What does the passive personality possibly do?

Answer 15

Allows states to exercise jurisdiction over crimes committed against their nationals.

Controversial: Lotus

Question 16

What are the main concerns with the passive personality principle?

Answer 16

1) May favour powerful states
2) Subjected simultaneously to the laws of many different states, which would include prohibitions of which they were understandably unaware. (Principle of legality/ Double Jeopardy).

Question 17

What does the protective principle do?

Answer 17

States are entitled to seek protective jurisdiction over extraterritorial activities that threaten state security.

Eg selling state’s secrets, spying or counterfeiting of its currency.

Question 18

What is universal jurisdiction?

Answer 18

Jurisdiction established over a crime without reference to:

1) the place of perpetration
2) the nationality of the suspect or the victim or
3) any other recognised linking point between the crime and the prosecution state.

Question 19

What are the main characteristics of universal jurisdiction?

Answer 19

1) Based on nature of an act/ crime (limited to specific crimes)
2) Can be exercised by any state irrespective of national or location
3) Can be based on custom or treaty

Question 20

When was universal jurisdiction first seen in international law?

Answer 20

Art 49 of the Geneva Convention I

Question 21

What case post WW2 recognised universal jurisdiction?

Answer 21

Eichmann :

Crimes which struck at the whole of mankind and shocked the conscience of nations.

Question 22

What were the main criticisms about the Arrest Warrant case?

Answer 22

Didn’t determine lawfulness of Belgium’s assertion of UJ.

1) Question of jurisdiction precedes that of immunity.
2) Arguments about immunity may have been affected by the arguments about universal jurisdiction.

Question 23

What are the practical problems behind universal jurisdiction?

Answer 23

1) Availability of evidence

2) Forum shopping

Question 24

What is a policy based criticism of UJ?

Answer 24

1) Practical ability of more powerful nations both to assert jurisdiction beyond their borders and to pressure other countries into leaving their nationals alone.

Ex: Judge Rezek - Yerodia.