FINAL EXAM IL
HIRSI JAMAA CASE à key issue: if Italy had jurisdiction over individuals à happened in the high seas (no jurisdiction), but
Italy used their own vessels with their own flag à Italy had effective control over the vessels à established their jurisdiction
Chapter 9: Jurisdiction
Jurisdiction = The legal competence of a State to make, apply, and enforce rules with regard to persons, property and
situations/events outside its territory, and to the limits of that competence.
*It is derived from the state sovereignty and constitutes its vital and central feature.
≠ territory VS. jurisdiction (control – could be exercised outside)
à According to Judge Higgins (former President of the ICJ), the easiest way to avoid conflict is to define clear limits between
jurisdictions: “there is no more important way to avoid conflict than by providing clear norms as to which state can exercise
authority over whom”
Characteristics:
• Lawful authority
• Over persons, territory or circumstances
• By a state or state-like entity
• De facto (effective control = in reality - illegal) / de jure (by law - legal)
• Types: International jurisdiction, judicial jurisdiction (court), state jurisdiction
Jurisdiction and Sovereignty
• It concerns both the extent of sovereign powers and the scope or limitation of those powers at the international level
• Jurisdiction is an aspect of sovereignty which relates to the legislative, executive and judicial competence of a State.
Types of State Jurisdiction
• Jurisdiction to Prescribe = legislative jurisdiction: the capacity a state has to elaborate its own municipal/domestic
laws. Each state prescribes its own domestic law, but it is only applicable to national territory, although there can be
similar trends in all jurisdictions stemming from IL.
o Doesn’t always come hand in hand with jurisdiction to enforce
• Jurisdiction to enforce = the capacity of a state to ensure compliance with the law and the imposition of sanctions for
potential breaches. This way, the state has the capacity to impose domestic law within its territory whether through
courts or by use of executive, administrative, police or other non- judicial action.
o Doesn’t necessarily go hand in hand with jurisdiction to prescribe
o E.g. LOTUS CASE – there is jurisdiction to enforce but not to prescribe = in the high seas there is no
jurisdiction to prescribe but when the boat arrived to Turkish land, they had jurisdiction to enforce
o E.g. it can also be applied to cases of illegal occupation or loss of control over a certain territory, where
jurisdiction to enforce is lost à Northern Cyprus or Crimea
§ E.g. Somalia is a different case because the state has failed, so there is no state to enforce or to
prescribe
o Also states with civil war or internal conflicts has places where there is no jurisdiction to enforce
o **Immunity = privilege to not have domestic law enforced upon you (E.g. Fogarty Case) = restriction of
enforcement of domestic law but with the limitation of jure gestionis and jure imperiis
• Protective jurisdiction = the right a state has to prosecute in order to protect itself, and it includes both enforcement
and legislation.
, o it includes the possibility to prosecute beyond its borders and to offer diplomatic protection (not necessarily
only for the state, but for individuals abroad who have committed a crime under that jurisdiction domestic
law)
o discretionary power of the state and the other prosecuting state = there is no obligation to surrender that
person, except if there is an obligation under il (E.g. a treaty)
o ≠ diplomatic protection
• Universal jurisdiction (not IL) = makes reference to the idea that states should not only follow certain basic rules (e.g.
erga omnes or jus cogens), but also prosecute breaches of these universal principles even beyond their own borders
= the idea that everyone has to comply with and actively prosecute violations of universal principles
o Crimes are related to erga omnes obligations – but states will choose which ones
o This does not appear in any treaty, but some states have incorporated it into domestic legislation
§ Some states establish in their criminal law the possibility for prosecuting crimes even if it is outside
its borders
o E.g. Spain & Germany have a limited universal jurisdiction à states choose = discretionary
§ Only some countries have included this notion of universal jurisdiction and not many states comply
with it à fight specific crimes (erga omnes)
o In the case of being a representative of the state and doing an act of jure imperii (absolute immunity), it can
only be persecuted once it has left the office
§ Belgium has universal jurisdiction à sent a warrant against a Congo Prime Minister for crimes
against humanity à it was accepted by the ICC but only once he had left his political position
Myanmar case (used to be a military dictatorship) – they are persecuting a minority Group à intervention of Gambia
recognizing genocide against this group à the whole world is affected by genocide à although Gambia had no direct
interests in Myanmar, they were able to exercise universal jurisdiction (before the ICJ)
*This case did not comply with any of the criteria below
How to enforce jurisdiction before municipal court – 2 criteria (both don’t have to be present):
• Territorial jurisdiction – they enforce because it is under their control (the facts have happened in the territory of the
state) = to enforce one must have the power/competence to protect or to prosecute in that territory. It also opens up
to the state being allowed to exercise subjective & objective jurisdiction to events that occur partly outside its
territory
o Subjective = a state will have jurisdiction over a conduct that commences within the state, but it is
completed outside
o Objective = concerns a conduct that begins outside a state, but it is completed within
• Personal jurisdiction – they can exercise control over people
o Active – nationality of the offender (needs to meet a nationality link)
o Passive – nationality of the victims (at least some nationality link – related to universal jurisdiction)
*extraterritorial jurisdiction = situation in which a state extends its legal power beyond its territorial boundaries
à need of state cooperation à extraterritorial jurisdiction = exercise of a jurisdiction of a state outside of their borders
Article 1 – ECHR
"The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of
this Convention"
The criteria for this to happen is for the state to have effective jurisdiction that can be:
• Territorial control
• Control over persons
, • Control over the infliction of the alleged victim
*In the moment a state has an effective jurisdiction à we can trigger the element of state responsibility when they breach IL
+ Bankovic case
E.g. Hirsi Jamaa à Italy had jurisdiction outside its territory (Italian vessel) à these people were under effective control
under the forces of Italy = Italy had control over the alleged victim
, Chapter 11: State Responsibility
The rules for state responsibility can be found in the draft on articles International Law Commission (ILC) = UN body
that codifies and prepares texts
*although it is not a treaty, it is applicable because it has become a customary rule à States have used this in specific
mechanisms (State practice + opinion juris)
DARSIWA = Draft on articles for state responsibility for internationally wrongful acts
What is a wrongful act?
Every internationally wrongful act of a state entails the international responsibility of that state (Article 1 ILC) à entails a
violation of IL à triggers state responsibility
In order to have a state responsibility, we need a wrongful act à reply to 3 questions
1. What acts (or omissions) can be attributed to the state = imputability
2. Is fault required
3. Are there any defenses to responsibility?
*General principles of state responsibility:
• There is NO difference whether the state responsibility is triggered by a breach of a treaty or customary law à there
is no hierarchy, but a coexistence
• Is the breach of certain obligations more important than others?
o Certain obligations (e.g. jus cogens) give raise to an aggravated responsibility = bringing more
reparations à NOT VERY CLEAR in international practice, but it is reflected in the magnitude of the
reparations
Perpetrating state (= the one who commits the wrongful act) à STATE RESPONSABILITY à Receiving state (= who suffers)
has the right to receive reparation
1. What is an act of state? = imputability of the state
• ACTS OF STATE OFFICIALS = When there is a state organ or official that commits that act (state body)
o *Does not matter if they are considered to be acting beyond their competences (=ultra vires = acting
beyond the function that is given to the person or contravenes instructions)
o *Also those state officials that de facto exercise state functions, are within the scope – Bosnia and
Hezergovina v. Serbia and Montenegro Case
• If it is not an act done by a state official à NOT AN ACT (state responsibility) if…
o Acts of mobs or private individuals unless…
§ Their conduct is directed or controlled by a state (Article 8)
• Should have effective control = significant degree of control as to justify that they are
acting on behalf of the state
• E.g. Nicaragua case – the acts of the contras could not be attributed to the US (the heavy
subsidies and training that the US gave were not sufficient control)
§ Their conduct is acknowledged and adopted by a state as its own (Article 11)
• E.g. Iran-US Hostages case – Iran adopted and publicly acknowledged the acts of the
revolutionary guards = became responsible for them
o Insurrectionaries unless they become government of the state at the end
