Week 8(i) - Jurisdiction

Question 1

What is covered by “domaine réservé”? (3)

Answer 1

1) Matters falling within exclusive domestic jurisdiction of the State
2) Definition: Any matter not regulated by IL
3) Matters may be within a State’s domestic jurisdiction even though they closely concern the interests of other States (Nationality Decrees in Tunisia and Morocco)

Question 2

What is ‘Jurisdiction’?

Answer 2

Authority for States to enact and enforce their laws

Question 3

What are 3 forms/modalities of jurisdiction?

Answer 3

1) Legislative (prescriptive) Jurisdiction
2) Executive (Enforcement) Jurisdiction
3) Ajudicative Jurisdiction

Question 4

What are 4 bases of jurisdiction?

Answer 4

1) Territoriality
2) Nationality
3) Protective Principle
4) Universal Jurisdiction

Question 5

What is the status of territorial jurisdiction of States? (2)

Answer 5

1) State sovereignty is taken to permit states to exercise that sovereignty within their territory to the exclusion of any other State
2) Palmas Islands

Question 6

What are 2 elements of territoriality?

Answer 6

1) Subjective territoriality (acts initiated w/in territory)

2) Objective territoriality (acts consummated w/in territory)

Question 7

What is the ‘Effects Doctrine’? (4)

Answer 7

1) an extension of the objective territoriality principle
2) jurisdiction over acts having an impact within the territory
3) proponed by US in anti-trust law regarding entities affecting internal US market (US v Alcoa)
4) has faced considerable international opposition (incl. from EU)

Question 8

What is the jurisdictional basis of ‘Nationality’?

Answer 8

States may generally exercise jurisdiction over people of their nationality

Question 9

What are 2 types of Nationality Jurisdiction?

Answer 9

1) Active Personality Principle (States exercising jurisdiction over the person committing an act)
2) Passive Personality Principle (State exercising jurisdiction due to nationality of the victim) (this basis is controversial in CIL but terrorism/hostage conventions permitting it exist incl Hostages Conv)

Question 10

What are 3 means of conferring nationality?

Answer 10

1) Through parents (jus sanguinis)
2) by birth on territory (jus soli)
3) Grant to citizen of other State (Naturalization)

Question 11

Is the conferral of nationality within the domestic jurisdiction of States? (2)

Answer 11

1) Used to be but no longer entirely so
2) Whilst it is for the state to set its own rules (Nottebohm), these must not be such as to leave someone without ANY nationality

Question 12

Which nationalities are opposable to third States under IL where an individual holds multiple? (3)

Answer 12

1) Nottebohm Principle
2) For a nationality to be opposable to third States an individual must have a genuine connection to the State
3) applies to all cases of multiple nationality

Question 13

What is the nationality of aircrafts? (3)

Answer 13

1) aircrafts have the nationality of their State of registration (Art 17)
2) 1944 Chicago Convention on Civil Aviation
3) they may only be registered in one place (Art 18)

Question 14

What is the nationality of vessels? (2)

Answer 14

1) States may set conditions for registration/grant of nationality provided a ‘genuine link’ to the ship
2) Art 91 UNCLOS

Question 15

On what bases can nationality be granted to corporations under IL? (5)

Answer 15

1) Nottebohm Principle does not apply
2) Place of incorporation
3) seat of the company
4) majority/substantial portion of shares owned by nationals of that State
5) Barcelona Traction

Question 16

What is the jurisdictional basis of Protective Principle? (2)

Answer 16

1) permits states to claim jurisdiction over matters concerning a State’s vital interests
2) Examples incl. coinage, espionage, terrorism, taking of hostages, conspiracy for coup d’état, attack of diplomatic personnel abroad

Question 17

What is Universal Jurisdiction? (4)

Answer 17

1) exercise of jurisdiction irrespective of any of the ohter bases
2) The extra-territorial jurisdiction is permitted to avoid impunity (piracy)
3) Extra-territorial jurisdiction is permitted due to gravity of offence giving each state an interest in the repression (hostis humani generis) (International crimes) (Arrest Warrant)
4) Based in the jus cogens nature of the prohibition in question (Furundzija, ICTY)

Question 18

Can there be universal jurisdiction in abstentia? (2)

Answer 18

1) O’Keefe
2) No it logically impossible. Universal jurisdiction is a basis for prescriptive jurisdiction only. However ‘in abstentia’ (whether have person in custody) is a question on appertaining to enfrocement jurisdiction.

Question 19

Why did BEL change its law from permitting universal jurisdiction? (3)

Answer 19

1) complaints against ISR PM for incidents in LEB 1982
2) complaints against US figures after bombings in Iraq 1990’s
3) pressure on BEL to modify –> requires perpetrator be on territory or passive personality principle

Question 20

Is universal jurisdiction part of CIL? (1)

Answer 20

1) Unlikely since only 4 States (BEL, NETH, SPA, GER) really engaged in it and they have all eventually limited its scope

Question 21

Is universal jurisdiction part of treaty law? (3)

Answer 21

1) Yes a number of examples exist
2) Genocide Convention?
3) Geneva Conventions I-IV

Question 22

What is the Principle of Liberty? (4)

Answer 22

1) Lotus Principle
2) Anything not prohibited is permitted
3) “Restrictions upon the independence of States cannot therefore be presumed”
4) based on legal positivism (no Natural Law)

Question 23

Are there any limitations to the Principle of Liberty? (2)

Answer 23

1) Extra-territorial enforcement jurisdiction not permitted (Lotus; Corfu Channel)
2) Extra-territorial prescriptive and adjudicative jurisidiction: no prohibition but confined to law at time of Lotus decision (1927)