Section 6 - Jurisdiction

Question 1

what is jurisdiction

Answer 1

Jurisdiction → legal domains over which the law has power

Question 2

what is territorial jurisdiction

Answer 2

Inherent in State sovereignty

A State’s exclusive authority over its territory

Question 3

What is terra nullis, and does it exist

Answer 3

No one owns/claims any part of the earth - this doesn’t exist anymore

Question 4

WHen was jursidiction and sovereignty first created?

Answer 4

1648 Peace of Westphalia

Question 5

Where is it easiest to find jurisdiction?

Answer 5

territorial base of sovereignty and jurisdiction

Question 6

What is an example of a boundary issue, and where do theys tem from?

Answer 6

boundary issues can be part of a colonial legacy. A British colonial treaty set in motion a boundary dispute between Belize and Guatemala that lasted 143 years. Boundaries originally marked out on a map in the comfort of a foreign minister’s office may never have been properly surveyed through a jungle or across a desert. In time, Belize granted maritime concessions to Guatemala in exchange for the latter dropping its land claims against Belize, and then the Inter-American Development Bank provided $200 million to demarcate an accurate boundary between the two.

Question 7

What is one way of solving territorial disputes?

Answer 7

territorial jurisdiction may be decided in favor of the state that demonstrates effective administration over time in at least one policy area.

Question 8

What is res communis

Answer 8

oceans and seas are res communis, or a commons available for the use of all states.

Question 9

what is mare clausum, and who advocated for it?

Answer 9

Portugal and Spain became the dominant seafaring states in the 1400s and 1500s and arranged for a mare clausum, or closed sea, to restrict the
development of rising trade competitors like England and Holland

Question 10

what was the argumetn for mare liberum

Answer 10

Hugo Grotius, Dutch lawyer and diplomat argued persuasively in his 1609 Mare Liberum (Free Sea) that enormity of oceans could not, by their very nature, be owned as could land, and that all states would benefit commercially if the seas were open to the merchant vessels of all

Question 11

Explain the 1982 Law of the Sea Convention

Answer 11

The LOS convention offers numerous rules. Several seaward jurisdictions start with the baseline of a coastal state, which is the land-water demarcation marked at low tide. If a state’s coastline has significant indentures or a fringe of island, that state is allowed to draw a reasonable straight baseline along the outermost islands

Question 12

what are archipelago states

Answer 12

states with a territorial base consisting of a set of islands recognized as geographical and political entities. Close to 35 states, such as Indonesia and the Philippines, are allowed to draw their baselines around the outermost islands, giving these states sovereignty over the waters within the encircling baselines

Question 13

what are internal waters

Answer 13

rivers, lakes, ports, bays and the like, generally on the landward side of the baseline. The LOS convention briefly mentions internal waters but customary law mostly controls this jurisdiction.

Question 14

what is the dispute about Hudson Bay and internal waters

Answer 14

Bays, as an internal water area, can sometimes be particularly troublesome.

Canada claims the large Hudson Bay as part of its internal waters, but the United States has objected in the past on the grounds that the mouth of this bay, at fifty miles wide, far exceeds Canada’s territorial sea jurisdiction measured from either side of the bay’s mouth. The United States has argued international waters must surely lie in the middle of the bay’s entrance and much of the center of the bay, making this bay available to all ships. Canada rejects the width-of-mouth argument, insisting that the Hudson Bay is a historical bay that Canada has governed in all respects for a lengthy period of time.

Question 15

what is the terrirotiral sea?

Answer 15

band of water along a state’s coast under the state’s exclusive sovereignty, including the airspace above and the seabed below. The LOS set it at 12 miles

Question 16

what is the difference between innocent passage and transit passage

Answer 16

Broadening the territorial sea from 3 to 12 miles also brought heightened concern over the long-established principle of innocent passage, the continuous and expeditious voyage of a foreign ship through the territorial waters of a coastal state as long as there were no harmful effects to that state. Obviously, much more of the sea would be enclosed as territorial sea with the change to a 12-mile width so the innocent passage rule now comes into play much more frequently.

A specialized version of innocent passage is transit passage through one of the many straits that may fall within the territorial jurisdiction of one or two states. There as a firm expectation that ships and aircraft of all kinds are not to be impeded as theyfollow a strait. A strait is a narrow sea passage connecting two bodies of open sea.

Question 17

what is a contiguous zone

Answer 17

contiguous zone that extends 24 miles from the baseline and overlaps the territorial sea. This type of jurisdiction traces back to English “hovering acts” of the eighteenth

Question 18

How far away from their coastline can states claim jurisdiction?

Answer 18

states can now claim a jurisdiction of 200 miles of the seabed from their baseline, and in some special geographical cases 350 miles depending on the natural prolongation of its territory known as the continental shelf. With this new jurisdiction, coastal states could latch onto a new dividend of natural gas, oil, and minerals located in their adjacent shelves.

Question 19

explain EEZ and its advantage

Answer 19

exclusive economic zone (EEZ) of 200 miles
of sea measured from the baseline and overlapping other jurisdictions. With the
EEZ, coastal states acquired sovereign rights to conserve and exploit all living and
non-living resources in the waters and seabed. The chief advantage is exclusive fishing
rights in a world relying more and more on fishing to help feed a burgeoning
global population (now at 6.6 billion and estimated to reach 9.5 billion by the 2050s.)
Since edible fish stocks mostly range inside this jurisdiction, it is safe to say that
almost all the important fisheries of the world fall under the sway of one coastal
state or another.

Question 20

what is res communis?

Answer 20

what is left of the ocean is known as the high seas. These great bodies of water are a res communis open to all states for unimpeded navigation, fishing, over-flight by aircraft, and the
laying of cables and pipelines. The extension of several types of seaward jurisdictions under the LOS convention of course has reduced the size of the open seas.

Question 21

what are some of the mains issues of the LOS?

Answer 21

The first concerns the nationality of a ship on the high seas. Every ship must fly the flag of its nationality, determined by where the ship is registered. According to Article 91 of the LOS convention, “There must be a genuine link between the State and the ship.” A greater incongruence between a stated rule and the actual practice can hardly be imagined where flags of convenience are concerned

A second problem is the historical scourge of piracy. The LOS convention clearly addresses this issue and defines piracy in its Article 101. Any private act of violence or depredation against passengers or crew and their ships or planes on or above the high seas is piracy. The problem is not with the law but its level of enforcement.

The last, and at one time the most controversial, issue centers on the provision of
a Seabed Mining Authority for licensing mining activities and ensuring that profits
are shared by all states.

Question 22

what is ICAO, and when was it created?

Answer 22

Chicago Convention’s most important contribution was the creation
of the International Civil Aviation Organization (ICAO), which became a specialized
agency of the UN System in 1947. The ICAO’s Executive Council has
recommended numerous rules for international navigation and safety that are
regularly accepted. This oversight function is critical since countries have organized
international air travel through a vast web of bilateral treaties, an arrangement
that might be anarchical without the ICAO

Question 23

can states shoot down international civilan flights,a dn what is an example where the answer would be yes

Answer 23

no, BUT 9/11 flights

Question 24

What is the montreal convention?

Answer 24

1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation that deals with sabotage. This convention covers harming persons on board planes, damaging the aircraft in flight, placing explosives on the plane, or interfering with navigation facilities. As with the Hague Convention, contracting parties are expected to try or extradite an accused person.

Question 25

What are three conventions that are oftne mentionned hwen it comes to suppressing terrorism?

Answer 25

1971 Montreal Convention

The 1963 Tokyo Convention
on Offenses and Certain Other Acts Committed On Board Aircraft affirms that for any commission of a crime the state of the aircraft’s registration has jurisdiction, not unlike exercising national jurisdiction on board a ship at sea. However, this convention
does not directly address hijacking.

A rash of hijackings that began in the 1960s, and still happens on occasion despite enormous security precautions, led to the 1970 Hague Convention for the Suppression of Unlawful Seizures of Aircraft concerning individuals hijacking planes in flight.

Question 26

Who is leading actor on creating space law?

Answer 26

Unquestionably, the UN has been the leading actor to create space law. A UN
Committee on the Peaceful Uses on Outer Space (COPUOS) was formed in 1959
and then drafted the treaties and proposed additional principles that add up to the
specialized body of space law (Steinhardt 1997: 338–40). Moreover, three specialized
agencies of the UN have had notable input. The International Telecommunications
Union (ITU) has regulated the location of communication satellites, while the UN
Education, Scientific, and Cultural Organization (UNESCO) has argued for the
interests of developing states of the Third World in the field of telecommunications.

+ European Space Agency: The ESA studies outer space and the Earth’s environment, and services a multitasked
network of satellites

Question 27

what 4 primary treates were elaborated on outer space after the first in 1967?

Answer 27

The 1967 Outer Space Treaty has been elaborated further by four additional treaties.
These are the 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts
and the Return of Objects Launched into Outer Space; the 1972 Convention on
International Liability for Damage Caused by Space Objects; the 1976 Convention on
Registration of Objects Launched into Outer Space; and the 1984 Agreement Governing
the Activities of States on the Moon and Other Celestial Bodies. The last, the Moon
Agreement, has not been well received by the space-faring states. Similar to the argument
over seabed mining, these states want to reserve the right to mine for profit on
the Moon without sharing finds with others. Any showdown on this issue is probably
in the

Question 28

what is the Bogotá Declaration?

Answer 28

One group of eight states of the South, located around the Equator, took the forward-
leaning step of claiming national sovereignty over the geostationary orbit
above their countries. This radical assertion of sovereignty was expressed in the 1976
Bogotá Declaration. This declaration was in direct contradiction of the practice of
treating outer space as a res communis unavailable for territorial claims (Grove &
Kamenetskaya 1995: 263). Under diplomatic pressure, these eight states had to
retreat and settle for a promise that the ITU would

Question 29

how do you define the antarctic region?

Answer 29

The Antarctic region is the circumpolar area that begins at the 60 degrees south latitude.
This region contains the ice-covered land of the Antarctica continent and much
of the surrounding oceans extending beyond the Antarctic Circle. The fifth-largest continent at over five and half million square miles, Antarctica is a frozen land with a treasure-trove of oil, minerals, and much of the world’s fresh water

Question 30

what is the arctic like?

Answer 30

the Arctic is not a continent but an ocean surrounded
by Asian, European, and North American land masses that encompass part
or all of the territory of eight states. The Arctic has been referred to as an ice mass
floating on an ocean.

Question 31

What is a main point of contention for the artctic?

Answer 31

More contentious, at least since the LOS Convention, are conflicting claims about continental shelves and EEZs. The wealth involved in fisheries, oil, gas, and minerals tempt the eight states of the region to maximize their maritime claims. In 2007, Russia sent a small submersible down two and a half miles to plant a Russian flag, made of titanium, on the seabed beneath the North Pole as a symbolic claim to minerals and oil that might be there.

The Russian government, however, will have to make a strong geographical case before the UN that is convincing to other states. Due to this type of competition, plus the long years of division created by the Cold War, the concerned states were slow to conceptualize the Circumpolar North as a special region needing collaborative policy

Question 32

what are two ways to determine a persons nationality?

Answer 32

jus soli (law of the soil) or jus
sanguinis (law of blood). the trend is to move away from jus soli

Question 33

what is naturalisation

Answer 33

naturalization, the legal process of changing from one nationality to another. Traditionally, a naturalized citizen is expected to swear allegiance to the new state and renounce ties to the old one. This process can be discriminatory. In the past, women were not allowed, in many instances, to naturalize on their own but had to follow their husband’s nationality. For some states, reform came through the 1933 Montevideo Convention on the Nationality of Women and the 1957 Convention on the Nationality of Married Women. Under these conventions, women can freely choose their nationality. Ethnic and racial preferences have also affected immigration and citizenship

Question 34

where does double nationality usually stem from?

Answer 34

Dual nationality status typically originates from being born in a jus soli country to parents who have emigrated from a jus sanguinis state. An individual has a citizenship because of where he or she is born and a second through the bloodline of parents.
As David A. Martin has observed, it just so happens that the most common migration pattern of the world involves people going to jus soli countries while leaving those that are jus sanguinnis

Question 35

what is sovereign immunity

Answer 35

Sovereign immunity is the exemption of one state’s public acts and property from
the court cases of another state. It is an act of comity. In a friendly way, one state
keeps the business of another out of its courts. An American court might tell a party
wishing to bring a case involving another government that the American court is
forum non conveniens, or an inappropriate court for the case at hand

Question 36

describe restrictive immunity

Answer 36

restrictive immunity. If state acts were of the traditional kind, acta imperii, involving such matters as security or diplomacy then absolute sovereign immunity was respected. If state activity, however, concerned commercial acts, acta gestionis, then the doctrine of restrictive immunity applied and a state’s commercial business could wind-up in another state’s courts.

Question 37

what is the act of state doctrine

Answer 37

Carefully followed, this doctrine means decisions made by a government within its national context, that affects another state’s citizens in a negative way, will be given full respect as a sovereign act. The act of state doctrine is by no means widely followed.

Question 38

how do you say in latin that something is an inappropriate court to handle a case

Answer 38

forum non conveniens

Question 39

how do you say act of state and commercial act in latin

Answer 39

acta imperii
acta gestionis

Question 40

what is the custom around sovereign immunity?

Answer 40

there is no uniformity among judges and countries as to when and how to apply sovereign immunity. The states of international society can be placed on a continuum ranging from absolute immunity to relative immunity allowing for various exceptions, or restrictive immunity

Question 41

which principles are part of extraterritorial jurisdiction

Answer 41

nationality principle that allows the government of a country to prosecute one of its citizens or corporations for violating its law, even though the criminal act may have taken place in another country or in an international space.

passive personality, which involves a criminal act against a state’s citizen while abroad. The assumption behind this principle is that the state’s own legal personality is affected indirectly, or passively, when one of its citizens is the target of an
illegal act

effects and protective principles. Both involve wrongful acts that begin outside a country but, nonetheless, impact that country in some way.

universal jurisdiction: This jurisdiction covers international crimes so heinous that the perpetrators are considered humani generi hostis, or the enemy of all humankind as in the case of pirates. Any state capturing such an individual can try that person regardless of where the crime was committed, the nationality of the victim(s), or the nationality of the accused

Question 42

What is a case illustrating passive personality as a principle in extraterritorial jurisdiction?

Answer 42

SS Lotus case, the PCIJ ruled that Turkey had jurisdiction to try a French officer for allowing his ship to collide with a Turkish ship on the high seas, killing some of the crew. The PCIJ reflected on passive personality, in consideration of the Turkish loss of life, but stopped short of applying this form of jurisdiction. The modern age of terrorism and the human rights movement, however, have breathed new life in the relevance of the passive personality principle.

Question 43

Describe the SS Lotus Case

Answer 43

On August 2, 1926, the French-flagged SS Lotus wrecked with the Turkish coalcarrier, causing the latter to sink with a loss of eight lives.

The Lotus picked up the survivors and the next day docked in Constantinople. The Turkish government began prosecution against both Lt Demons, the deck officer of the Lotus and the Turkish captain, finding them both culpable.

A Turkish court sentenced Demons to 80 days confinement and a 22-pound fine, with the Turkish captain receiving a slightly more severe punishment.

France objected and demanded an indemnity of 6,000 Turkish pounds for what the French government regarded as the wrongful arrest and conviction of Lt Demons. However, the PCIJ ruled in favor of Turkey on the grounds that the Turkish vessel assimilates to Turkish territory allowing the application of Turkish criminal law.

This precedent was overturned later by the 1958 Convention on the High Seas and the 1982 LOS Convention. If a similar incident occurred today, jurisdiction would belong to the French under the nationality principle based on the nationality of Lt Demons and that of the S.S. Lotus.
This position is exactly the one the French government took in 1927. The Permanent Court of International Justice (PCIJ) merely reflected on the passive personality principle where Turkish loss of life was concerned, but did not grant jurisdiction to Turkey on this basis.

Question 44

How do you say someone is an enemy of all human kind

Answer 44

humani generi hostis

Question 45

what crimes fall under universal jurisdiction?

Answer 45

piracy, slavery and slave trafficking, war crimes, crimes against humanity, genocide, and torture

Question 46

what do you call it when a state requests a wanted person from another state

Answer 46

extradition

Question 47

what four elements are usually part of bilateral extradition requests?

Answer 47

(1) the crime must be couched in law;

(2) sufficient evidence to suggest a trial can go forward must be available;

(3) double criminality must exist, meaning the sending and receiving states recognize the same crime;

(4) the specialty rule applies requiring that the wanted person cannot be extradited on one charge but then tried on another

Question 48

what are some issues in extraditions?

Answer 48

how do you define a political offense?
should deportation of an alien be allowed so circumvent extradition?
male captus bene detentus (kidnappings as a mean of bad capture but good detention)

Question 49

what is a famous case of abduction?

Answer 49

The world’s most famous case of abduction occurred many years earlier when Adolf Eichmann, a principal agent in Nazi Germany’s campaign to eradicate the Jewish people of Europe in the early 1940s, was abducted by Israeli agents from Argentina in 1960 and tried in Israel in 1961. He was hanged there in 1962 for humanitarian crimes, in particular, for genocide waged against Jews.

Question 50

what can states do about territory that they cant do about their sea?

Answer 50

he ability to exclude foreigners from their territory, they cant select who can enter and who cant with their sea

Question 51

for Extraterritorial jurisdiction, how should one be applying the principles?

Answer 51

equally. none takes priority over another

Question 52

What role did Israel’s Mossad play in bringing Eichmann to trial, and what international law issues did this operation raise?

Answer 52

Israel’s Mossad intelligence agency located Adolf Eichmann in Argentina, abducted him on May 11, 1960, and smuggled him to Israel to face trial. This covert operation raised significant international law issues, particularly regarding sovereignty and jurisdiction. Argentina protested the violation of its territorial integrity and sovereignty, arguing that Israel had no right to conduct such an operation within its borders without permission. This incident led to a diplomatic dispute, and Argentina brought the issue to the United Nations Security Council.

The Security Council passed Resolution 138, which condemned Israel’s actions as a breach of Argentina’s sovereignty but did not demand Eichmann’s return. Ultimately, Israel and Argentina reached a diplomatic settlement on August 3, 1960, where Argentina agreed to drop its complaint in exchange for Israel’s acknowledgment of the sovereignty violation.

The legality of Eichmann’s abduction raised broader questions about the principle of male captus, bene detentus (“badly captured, well detained”). This principle suggests that the method of capture, even if irregular or illegal, does not necessarily negate the jurisdiction of the state conducting the prosecution. The Israeli court upheld this principle, asserting that Eichmann’s trial could proceed despite his illegal abduction, focusing on the need to bring justice for heinous crimes rather than procedural irregularities.

The Eichmann case became a precedent in international law, illustrating that prosecuting individuals for crimes against humanity could sometimes involve complex jurisdictional questions, particularly when diplomatic channels are bypassed.

Question 53

What was the court’s stance on the legality of Eichmann’s abduction?

Answer 53

The Israeli court deemed Eichmann’s abduction irrelevant to the trial’s legality, emphasizing the importance of prosecuting crimes against humanity over jurisdictional technicalities. Argentina eventually waived its objections following a diplomatic agreement.

Question 54

How did Eichmann’s trial impact the legal concept of “joint criminal enterprise”?

Answer 54

Eichmann’s trial highlighted the role of collective responsibility in systematic crimes. This concept influenced later doctrines in international law, such as the joint criminal enterprise used in the ICTY to prosecute collective acts of genocide and crimes against humanity.

Question 55

What defense did Eichmann use regarding “superior orders,” and what was the court’s response?

Answer 55

Eichmann claimed he was following orders from superiors. The court rejected this, emphasizing that he had the moral choice to refuse manifestly illegal orders and participated in the crimes willingly and zealously.

Question 56

Which 6 circumstances preclude wrongfulness in IL?

Answer 56

Consent
self-defense
countermeasures
force majeure
distress
necessity

Question 57

what are three legal consequences of an internationally wrongful act?

Answer 57

cessation
non-repetition
reparation

Question 58

What are typical conditions for jurisdiction and obtaining extradition?

Answer 58

prima facie (evidence suggesting trial)
double criminality
speciality rule (u can only be tried on charge you were extradited for)