Summary Public International Law - Literature Notes Week 5
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Course
Public International Law (IER4021)
Institution
Maastricht University (UM)
Book
International Law
Summaries of the readings for Public International Law week 5:
- Gleider Hernandez, International Law – Chapter 8;
- Gleider Hernandez, International Law – Chapter 9, Immunities;
- Akande & Shah, ‘Immunities of State Officials, International Crimes, and Foreign Domestic Courts’ EJIL, 2010;
...
Detailed Lecture Notes, Reading Notes and Tutorial Prep (Incl. an exam + answer key at the end)
Essential guide to Hernandez "International Law"
College aantekeningen Publiek Recht II: Internationaal Recht International Law, ISBN: 9780198748830
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Week 5 – Jurisdiction and Immunities
Gleider Hernandez, International Law – Chapter 8
8.1 Introduction: the reach of the State
Jurisdiction is the necessary corollary to state sovereignty under modern international law, for it
represents the exercise of authority of that state in relation to conduct, or to consequences of
events, that it deems itself competent to regulate. The formulation of jurisdictional claims, to the
exclusion of other states, is a classic exercise of sovereignty, and is safeguarded by the foundational
duty of non-intervention by external actors under Article 2(7) of the UN Charter.
8.1.1 Domestic Jurisdiction
Domestic jurisdiction is a term for the quintessential areas of regulation of a sovereign state, such as
the granting of nationality. However, matters of domestic regulation (e.g. human rights or
environmental legislation) may well have international legal consequences, and whether a given
subject is or is not within the domestic jurisdiction of states is one of international law.
8.1.2 Jurisdiction and territory
Jurisdiction cannot simply be equated with territorial sovereignty, e.g. in the case of nationality or
the protection of state interests. It is, therefore, the role of international law to develop a framework
in which potentially overlapping claims can be resolved.
8.2 Types of jurisdiction
8.2.1 Distinguishing prescriptive, enforcement, and adjudicative jurisdiction
8.2.1.1 Jurisdiction to prescribe
A state’s legislative jurisdiction, or “jurisdiction to prescribe, through which its constitutionally
recognised organs make binding laws regulating affairs in its territory and sometimes abroad. This
relates to the basic question of over whom, and in what situations, a state may extend its laws,
compel conduct, or demand certain penalties. Despite the concept of territorial sovereignty, a state
may legislate with extraterritorial effect; e.g. to levy taxes against persons not in its territory but with
whom it enjoys a genuine link. Even within its territory, a state may not exercise its legislative
jurisdiction contrary to its international obligations, which might take the form of treaties, e.g. on
human rights; customary international law, e.g. the treatment of aliens; or jus cogens, e.g. the
prohibition against torture.
8.2.1.2 Jurisdiction to enforce
Jurisdiction to enforce is the capacity to ensure compliance with legal rules, which is exclusively
exercised by officials and organs over certain persons or conduct located in their territory. Subject to
very limited exceptions, they only carry out their functions in the territory of another state with its
express consent, in particular with respect to apprehending persons or seizing property abroad.
Accordingly, enforcement jurisdiction is in principle confined to the territorial jurisdiction of a state.
8.2.1.3 Jurisdiction to adjudicate
The jurisdiction to adjudicate is the competence of a state’s courts to try cases in which a foreign
element exists; this is usually conditioned on a number of grounds through which jurisdiction may be
claimed, which are usually based on some material link between the state and the act.
8.2.2 The territorial principle
8.2.2.1 General Principles of territoriality
All persons found within the territory of a state are bound by its laws; when an alien enters the
territory of a state, that alien is bound to – and enjoys protection from – the entirety of the body of
laws of that state. A state’s territory extends beyond its land territory and also encompasses its
territorial waters and the airspace above its land and sea territories.
8.2.2.2 Subjective and objective territorial jurisdiction compared
, Some more complex cases might involve multiple components and actors (e.g. terrorism), and in
such instances international law has developed several variants on territorial jurisdiction through
which a state may claim to exercise jurisdiction. The first, subjective territorial jurisdiction, allows a
state to exercise prescriptive jurisdiction where it claims to regulate an act or incident which is
initiated within its territory but only consummated outside it. The second, objective territorial
jurisdiction, describes the reverse situation; namely, the exercise of prescriptive jurisdiction by a
state over an act or incident which originated outside its territory, but which is consummated within
it. As the Lotus case demonstrates, however, some acts straddle multiple states. This was an example
of objective territorial jurisdiction, as ships and aircrafts are considered ‘floating territory’ of the state
of registration.
8.2.2.3 The “effects” doctrine (“objective territorial jurisdiction”)
A controversial source of jurisdiction derives from the notion of objective territorial jurisdiction,
known as the “effects” doctrine. Spearheaded by the USA in the context of antitrust law, the USA has
claimed jurisdiction over the conduct of non-US entities whose activities were intended to affect its
internal market.
8.2.3 The nationality principle
The state has a long-established right to extend the application of its laws to its nationals. There are
two key points about the concept of nationality that are relevant for jurisdiction in international law.
First, it falls within the domaine reservé of a state to decide who its nationals are, and to lay down
conditions for the grant of nationality. Second. states may also grant their nationality onto a citizen
of another state, through a process called “naturalisation”, a process that usually relates to that
person establishing a durable bond with the state granting nationality. One must consider the range
of rights or benefits to which a national may be entitled, and the obligations which they must bear,
which go beyond a state’s entitlement to exercise criminal jurisdiction.
8.2.4 The protective principle
The concept of protective jurisdiction has long been invoked by states to assert that, when their vital
interests are endangered, they may claim jurisdiction in order to protect themselves, even against
activities committed by non-nationals that take place outside its territory. Such activities include
espionage, terrorism, illegal immigration, etc. One example of this is treason, such as in the Joyce
case. Here, the UK Courts could exercise jurisdiction over a US national who had fraudulently
obtained a UK passport and disseminated pro-Nazi propaganda during WWII because he had
benefited from protection afforded to British passport-holders. He was thus deemed to have
breached a duty of allegiance. This principle was also invoked in the Eichmann case, in which the
Israeli allowed the state to prosecute individuals for crimes injuring its ‘vital interests’. A ‘crime
against the Jewish people’, even prior to the existence of the state of Israel, was sufficient to
demonstrate a ‘linking point’ allowing Israel to claim jurisdiction legitimately.
8.2.5 The “passive personality” principle
A controversial basis for prescriptive jurisdiction is the “passive personality” principle, whereby a
state is entitled to exercise jurisdiction over non-nationals for acts committed abroad, provided that
the victims are nationals of the state claiming jurisdiction. Though its status as a customary law
principle remains unsettled, it is established in treaty law: states have entered into treaties
permitting passive personality jurisdiction with respect to the specific offences of hostage-taking,
hijacking, and terrorism. This principle is controversial because of its imperialist history and because
it allowed (European) states to extend its jurisdiction to any act afflicting its nationals abroad. The
principle had been upheld by the Cutting case of 1886, in which the USA strongly resisted the
exercise by Mexico of a claim of jurisdiction over a US national in its territory. The resolution of the
dispute was inconclusive, as charges were withdrawn. Another case, in which this principle was used
was US v Yunis, in which the US successfully claimed jurisdiction over an act of terrorism, the victims
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