week 3 - jurisdiction + immunities

Question 1

What is Jurisdiction?

Answer 1

Jurisdiction = the power to exercise power

Question 2

What are the 3 types of jurisdiction?

aka What 3 things do states have the jurisdiction to do?

Answer 2

1. prescriptive jurisdictoin - prescribe laws
2. adjudicatative jurisdiction - adjudicate
3. enforce laws - police, army

Question 3

Prescriptive Jurisdiction

Answer 3

Prescribe ⇒ prescriptive jurisdiction (legislator)

• Power to regulate activities
• States have the power to make laws creating rights, obligations, prohibitions, punishments
• Can prescribe a certain conduct
• ex. We are obligated to have health insurance, pay our taxes, etc.

Question 4

Adjudicative Jurisdiction

Answer 4

Adjudicate ⇒ adjudicative jurisdiction (courts)

-Power of national courts to treat + decide on cases
- State courts have power to receive, treat, determine cases that are referred to them

Question 5

Enforcing laws as Jurisdiction

Answer 5

Enforce ⇒ (police, army)
States have the power to ensure the compliance with the laws and judgements of their courts
ex. Physical detainment, arrest of assets, issue of a fine

Question 6

How is the S.S. Lotus case connected to Jurisdiction?

what did it establish?

Answer 6

“The first and foremost restriction imposed by international law upon a state is that … it may not exercise its power in any form in the territory of another state.”

Established that each state has jurisdiction over its own territory and other states cannot interfere, but sovereignty also means that states should have a wide jurisdiction to exercise their legal authority

Dual aspect of sovereignty + jurisdiction complications

Established that states can adopt, adjudicate, and enforce whatever laws AS LONG AS they don’t violate the sovereign rights of another state

Basic idea behind jurisdiction = principle of sovereignty

Question 7

In which ways can states assert jurisdiction?

Based on what factors can a state can claim they have jurisdiction

Answer 7

1. Territorial Principle
2. Nationality Principle
   => Active nationality principle
   => Passive nationality principle
3. Protective Principle
4. Universality Principle

Question 8

Explain Territorial Jurisdiction

Answer 8

A state has full jurisdiction over its own territory
= a state can exercise full authority over all acts that occur within its own territory + everyone located on its territory
→ it can essentially do whatever it wants as long as it does not violate HR

Territory = land, air, sea, vessels (boats in high seas), aircrafts registered in the state in international airspace

The only jurisdiction principle where all 3 types of jurisdiction apply
3 types; (prescribe, enforce, adjudicate)

Question 9

Who claims jurisdiction when it comes to interstate activity?

Answer 9

there are 2 sollutions; objective and subjective territoriality principles

Question 10

What is objective territoriality?

Answer 10

A state has jurisdiction over an act if it happened (was completed) on its territory, even if parts of the act happened elsewhere
Look at where the act was committed + occurred

ex. Belgian people smuggled drugs into holland = completion fo act happened on NL territory therefore NL has jurisdiction

Question 11

What is Subjective Territoriality?

Answer 11

A state has jurisdiction over acts completed abroad IF they are initiated or planned on its territory
Look at the origin of the act

Question 12

What is Active Nationality principle?

Answer 12

A state has jurisdiction over its nationals - regardless of where they are located
⇒ refers to individuals breaking the law - commit certain acts or fail to commit certy acts

Who counts as a national is up to the state;
Soil principle → ppl born on land are nationals
Blood principle → nationality is based on nationality of parents
In cases of dual nationalities → both states can claim jurisdiction

Question 13

What is passive nationality principle?

Answer 13

A state my assert jurisdiction over acts committed abroad if the victims of the act are the states nationals - regardless of where the crime occurred
⇒ refers to the victim of the act, not the person who is committing the act

example;
Malaysian MH17 flight was destroyed by Russia on Ukrainian territory - majority of the victims were Dutch so NL claimed jurisdiction
Ukraine could have also claimed jurisdiction - didn’t want to.

Question 14

What is the flag principle?

also known as the registration principle

Answer 14

Applies to boats + aircrafts
Boats always carry a flag
The state where the boat / aircraft is registered is the law that is to be followed when on board
Boats carry a flag = flag indicates registration = the law that is to be followed on the boat
As soon as plane lands → the land of the state the plane landed in applies

notes - Some textbooks put it under nationality, others under territoriality -

Question 15

What is the (3) Protective Principle - protective jurisdiction

Answer 15

A state may extend its jurisdiction over matters with harmful effects regardless of where the act occurs or who commits it
⇒ requires a genuine threat to a vital state interest
⇒ focus on nature of the act → it must be so harmful the states act w/ jurisdiction before the issue reaches their borders

examples; Falsification / counterfeiting money, drug smuggling, human trafficking  US can claim jurisdiction over the falsification of the US dollar no matter where the issue happened or who was involved

note; What constitutes a vital interest is unclear  US tries to impose sanctions on trade between Europe and Cuba or Iran - justify by stating that it is their vital interests in the field of Farm Policies

Question 16

(4) Universality Principle - universal jurisdiction

Answer 16

Some offences are so serious that any state can claim jurisdiction over them, no matter where or by whom they were committed, or who the victims were

⇒ direct link between act and state not required
⇒ aim: to uphold common interests of international community

examples; Piracy ⇒ states decided that whoever catches a pirate can do whatever they want - regardless of the nationality of the pirate or their location Genocide, crimes against humanity, war crimes Belgium⇒ adopted a universal jurisdiction law that allowed the court to adjudicate + prosecute war crimes + crimes against humanity, regardless of where it happened or who it was SO they issued an arrest warrant for the Minister of Foreign Affairs of Senegal (accused of committing war crimes)  ICJ → ruled u cannot do that due to personal immunity

Softer form of universal jurisdiction; Aut Dedere aut judicare  = obligations arising from treaties to prosecute or extradite  The state in which the accused is can choose to prosecute or extradite OR can choose to extradite the other person to another state which is willing to exercise jurisdiction

Question 17

What are immunities?

Answer 17

Exception from jurisdiction
In certain cases → a state is barred from exercising its jurisdiction over foreign acts or individuals - even when those acts are committed on its own territory

Question 18

What are the 3 types of immunities?