State Jurisdiction Flashcards
What are the types of jurisdiction?
Prescriptive- powers to make laws
Adjudicative- right for judges to hear and apply law
Enforcement- power to enforce the law. E.g. police arrest
On what bases may a State exercise legislative jurisdiction?
Territorial principle- subjective and objective
Personality- passive or active
Protective principle
Universal principle.
What is the territorial principle?
A State may exercise prescriptive jurisdiction over their own territory.
May be
subjective- Jurisdiction over the place where the crime commenced
Objective- Jurisdiction over where the crime is consummated or completed.
What is active personality?
Exercising jurisdiction over a national who has committed a crime.
What is passive personality?
Exercising jurisdiction over someone who has committed a crime against a national.
What is the protective principle?
States have the right to protect themselves by regulating conduct carried out abroad with the intention of damaging their fundamental public interests
What is the universal principle?
No nexus between exercising State and the offensive conduct
What immunities from jurisdiction exist?
State immunity
Diplomatic Immunity
Customary Immunity
What is Jus Imperii?
The law governing the exercise of sovereign power
What is Jus gestionis?
The law concerning non-sovereign activities of a State (e.g. private or commercial)
What may immunity NOT be invoked?
UN Convention on Jurisdictional Immunities of States and their property states that State immunity cannot be invoked:
- Commercial Transactions
- Contracts of Employment
- Personal Injuries and damage to property
- Ownership, possession and use of property
- Intellectual and industrial property
How has the law of immunity developed?
Absolute immunity (traditional approach) Domestic courts will not have jurisdiction to adjudicate upon matters which another State is the defendant.
Restrictive immunity. (modern approach)
Purely commercial transactions do not give rise to immunity.
Case concerning jurisdictional immunities of the State (Germany v Italy: Greece intervening
part of customary international law, and the fact that the underlying acts (WWII crimes) were violations of jus cogens did not deprive Germany from its jurisdictional immunity. However the court notes that while the current judgment confirms jurisdictional immunity of states, this does not in any way alter the possibility to hold individuals criminally responsible for certain acts.
