Week 8(i) - Jurisdiction Flashcards
What is covered by “domaine réservé”? (3)
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)
What is ‘Jurisdiction’?
Authority for States to enact and enforce their laws
What are 3 forms/modalities of jurisdiction?
1) Legislative (prescriptive) Jurisdiction
2) Executive (Enforcement) Jurisdiction
3) Ajudicative Jurisdiction
What are 4 bases of jurisdiction?
1) Territoriality
2) Nationality
3) Protective Principle
4) Universal Jurisdiction
What is the status of territorial jurisdiction of States? (2)
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
What are 2 elements of territoriality?
1) Subjective territoriality (acts initiated w/in territory)
2) Objective territoriality (acts consummated w/in territory)
What is the ‘Effects Doctrine’? (4)
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)
What is the jurisdictional basis of ‘Nationality’?
States may generally exercise jurisdiction over people of their nationality
What are 2 types of Nationality Jurisdiction?
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)
What are 3 means of conferring nationality?
1) Through parents (jus sanguinis)
2) by birth on territory (jus soli)
3) Grant to citizen of other State (Naturalization)
Is the conferral of nationality within the domestic jurisdiction of States? (2)
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
Which nationalities are opposable to third States under IL where an individual holds multiple? (3)
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
What is the nationality of aircrafts? (3)
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)
What is the nationality of vessels? (2)
1) States may set conditions for registration/grant of nationality provided a ‘genuine link’ to the ship
2) Art 91 UNCLOS
On what bases can nationality be granted to corporations under IL? (5)
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
What is the jurisdictional basis of Protective Principle? (2)
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
What is Universal Jurisdiction? (4)
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)
Can there be universal jurisdiction in abstentia? (2)
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.
Why did BEL change its law from permitting universal jurisdiction? (3)
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
Is universal jurisdiction part of CIL? (1)
1) Unlikely since only 4 States (BEL, NETH, SPA, GER) really engaged in it and they have all eventually limited its scope
Is universal jurisdiction part of treaty law? (3)
1) Yes a number of examples exist
2) Genocide Convention?
3) Geneva Conventions I-IV
What is the Principle of Liberty? (4)
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)
Are there any limitations to the Principle of Liberty? (2)
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)
