Lecture 4

Question 1

Domestic jurisdiction

Answer 1

describes the power of central authorities of a state to exercise public functions over individuals located in a territory.

Question 2

States have jurisdiction to:

Answer 2

1/ prescribe laws/legislation

2: enforce laws/legislation
3. Adjudicate

Question 3

Jurisdiction to prescribe

Answer 3

means that:

1. the state has power to enact laws/legislation that is binding upon individuals in the State’s territory
2. in some matters, the state may implement legislation which is binding upon their nationals living abroad.

Question 4

Jurisdiction to enforce

Answer 4

1. the state has the power to compel compliance with their domestic laws.
2. that the State cannot enforce its prescriptive jurisdiction in the territory of another State unless agreed through international law (treaty or custom)

Question 5

Jurisdiction to adjudicate

Answer 5

the State has the power to settle legal disputes through binding decisions.

Question 6

Grounds to Exersize jurisdiction, in international law

Answer 6

1. Activities within the State ( territorial principle)
2. Citizens of the State (nationality principle)
3. Foreign nationals for acts done abroad which harm nations of the State (passive personality principle)
4. Foreign nationals for acts done abroad which affect the security of that State (protective principle)
5. A limited category of offenses recognized as being of universal concern (universality principle)

Question 7

Subjective Territorial Principle

Answer 7

allows the exercise of jurisdiction by the State in which a crime is commenced

Question 8

Objective Territorial Principle

Answer 8

gives jurisdiction to the State in which the crime has been completed.

Question 9

Nationality Principle

Answer 9

A State may exercise jurisdiction over any of its nationals wherever they may be. The jurisdiction will not be enforced until the national is physically within the territory of the State

Question 10

Passive Personality Principle

Answer 10

A state may claim jurisdiction to try an individual for offences committed abroad which have affected or will affect nationals of the state.

Question 11

The Protective Principle

Answer 11

A State may exercise jurisdiction over foreign nationals who have committed an act abroad which is deemed prejudicial to the security of the particular state concerned.

Question 12

Universality Principle

Answer 12

under this principle, every state has the jurisdiction to try particular offenses that are deemed particularly offensive to the international community. This ground is based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged perp, the nationality of the victim, or any other connection to the state exercising such jurisdiction. Afforded to states who wish to prosecute individuals who have infringed upon jus cogens norms.

Question 13

Two categories of serious crimes of international law with universal jurisdiction

Answer 13

1. Piracy
2. War crimes
   - crimes against peace
   - crimes against humanity
   - genocide
   - torture
   - slavery

Question 14

Reasons for recognizing universal jurisdiction

Answer 14

1. Certain crimes are offensive to the entire international community but cannot be prosecuted because perpetrators have little or no connection to a State’s territory.
2. A state exercising universal jurisdiction acts on behalf of the international community to punish those who commit serious international criminal acts. ex Eichmann case: prosecuted and convicted under israeli law for Nazi war crimes
3. universal jurisdiction promotes global accountablilty and combats legal impunity for international crimes when States with closer links to the crimes are unable or unwilling to prosecute

Question 15

Problems with universal jusrisdiction

Answer 15

1. Universal jurisdiction can be evoked by states inconsistently for political reasons
2. there are no safeguards to ensure due process
3. can cause frictions between States when applied against current heads of states prosecuted in courts of another country

Question 16

Sovereign/State Immunity

Answer 16

refers to immunities enjoyed by a State. The source is customary international law, which flows from the par in parem non habet imperium principle, which expresses the idea that it is legally impossible for one sovereign power to exercise authority over another sovereign power.

Question 17

Par in parem non habet imperium

Answer 17

expresses the idea that it is legally impossible for one sovereign power to exercise authority over another sovereign power.

Question 18

When is State immunity used

Answer 18

it is exercised because one of the people was acting within their official duties as a foreign and sovereign head of state.

Question 19

Two approaches in absolute immunity

Answer 19

1. Absolute immunity approach

2. Restrictive immunity approach

Question 20

Absolute Immunity approach

Answer 20

granting foreign sovereigns absolute immunity from the jurisdiction of their supports. With the growth of international affairs and global commerce, the acts of State within another sovereign’s territory, thus more states have adopted a more restrictive approach

Question 21

Restrictive Immunity Approach

Answer 21

Based in defining what are and what are not acts of a state. Answering these questions are important because they determine the limits to a state’s immunity.

Question 22

Juri Imperii

Answer 22

acts of a sovereign nature in respect of which the State is immune, aka sovereign acts

Question 23

Jure gestionis

Answer 23

commercial/private acts in respect of which the State is subject to the jurisdiction of the territorial sovereign, aka non sovereign acts. These commercial engagements mark the limits to a State’s immunity.

Question 24

How to determine jure imperii

Answer 24

1. examine the purpose of the activity

2. the nature of the activity

Question 25

Ratione personae

Answer 25

state immunity that exists by reason of the person concerned (status). Immunity exists for certain key representatives of the State so long as they hold office

Question 26

Ratione materiae

Answer 26

state immunity that is attached to acts performed by State officials in the exercise of their functions. This immunity does not extend to abuses of jus cogen norms

Question 27

Diplomatic Law

Answer 27

understood to be a keystone in the maintenance of friendly relations between States and State agents. The individual, acting on behalf of the state, is given certain privileges within the legal system of the State in which they are performing their conduct. The receiving State is required to uphold particular obligations.

Question 28

Three general areas of diplomatic immunity

Answer 28

1. the premises of the mission/property
2. head of Mission and diplomatic staff
3. diplomatic bag/communication

Question 29

Immunities relating to the premise of the mission

Answer 29

1. the premises of the mission are inviolable and agents of the receiving State may not enter them with the consent of the Head of Missions (Article 22.1)
2. The receiving State is under a duty to protect the mission and it will be responsible under international law if it fails to do so (Article 22.2)
3. the property and means of transport of the mission are immune from search and seizure and the archives and documents of the mission are inviolable. (Article 22.3, 24)
4. the private residence of the diplomatic agent enjoys the same inviolability and protection as the premises of the mission. Article 30

Question 30

Immunities relating to the Head of Mission and diplomatic staff

Answer 30

1. the most extensive immunities are accorded to the head of mission and her staff. A diplomatic agent is inviolable and may not be arrested or detained, article 29
2. A diplomat is completely immune from the criminal jurisdiction and from the civil and administrative jurisdiction of the receiving state. article 31
3. the right of immunity carries with it a duty to respect the laws of the receiving state article 41
4. the sending state may waive rights to immunity article 32

Question 31

Immunities relating to the diplomatic bag/communication

Answer 31

1. all correspondence relating to the mission and its functions is inviolable and the diplomatic bag must not be opened or detained (article 27)