Flashcards in Jurisdiction and Immunities Deck (62)
What is jurisdiction?
Jurisdiction means different things in different context – in this context means ability under IL to regulate and give effect to regulation of persons and property (by regulate mean provide for in its own law)
Jurisdiction to prescribe
State’s authority under IL to assert the applicability of its law to given persons (natural or legal) and property
How might do so? Might enact legislation which on its face purports to regulate these situations. Need not be primary legislation, can be secondary, could even be courts in CL jurisdictions. Could even be executive
Doesn’t matter who does, its about the assertion that your law applies
Jurisdiction to adjudicate
State’s authority to have its courts hear certain cases.
When they hear those cases, may be applying own law, but equally (esp in tort and contract) may be applying law of foreign state.
For purposes of JTA just asking about their ability to adjudicate
Cf courts’ jurisdiction ratione loci, ratione personae and ratione materiae under municipal law
Jurisdiction to enforce
Authority under IL to enforce investigative, coercive, or custodial powers in support of law
To actually apply its law through its police, through its courts or whatever
It’s the sharp end – putting law into effect
Jurisdiction criminal or civil?
We're looking at criminal
JTP re civil law in IL = very laissez faire. Parties can basically just choose.
Also w/ crim can just look at JTP and JTE, bc JTA only matters where applying other country's law. If using own law, JTA is just consequence of JTP
JTP and JTE not necessarily co-extensive
Do not necessarily go together
Many situations where state may criminalise conduct that takes place in another state. Many times when UK can say it is a crme to do X in country Y. But it is extremely rare that under IL the UK can have its police go and arrest someone or gather evidence or take testimony in country Y
Way that state may exercise JTP w/out JTE is either to wait or ask state Y to extradite
Concept of JTP in criminal context
State's authority by reference to IL to treat certain conduct as criminal
Big Q in all of this is in what circumstances a State may criminalise conduct outside its territory
Discrete bases or "heads" of JTP
Despite old case (SS Lotus) we don’t need to focus on, orthodox approach (which can be reconciled anyway) is that there are a handful of discrete bases on which a state can rely to cirminalise certain conduct
Unless it can fit the conduct in one of these, cant have JTP
Often, more than one state will cirminalise same conduct
If person from A goes to B and kills someone, both A and B have JTP. Which one gets to try the person comes down to things like whether the person leaves, whether there is extradition etc. If person killed was from state C, then have even more bases
JTP under CIL = permissive, not mandatory
CIL says that a state may criminalise certain conduct, not must.
Whether a state chooses to exercise an authority given to it in IL is its own business.
Looking at what states are permitted, not obliged to do
The treaties oblige states to criminalise (go beyond CIL) but we won’t look at that
first and most fundamental basis on which a S can criminalise conduct
S has JTP over all acts in its territories
Territoriality alone is sufficient, don't need to show nationality or anything else
Territory includes territorial sea and superjacent airspace
Territoriality required at time of commission
‘Subjective’ and ‘objective’ territoriality
I stand in one S, victim in another – I shoot him. Which is the T?
S where crime is initiated on = subjective territoriality. But if another constituent element of the crime takes place in states’s T (the death) then they have objective territoriality
For many crimes that’s fine. But have to consider what the constituent elements of the case are – like what if its conspiracy
Important for things like drug trafficking
Internet is very difficult and right now there aren’t clear rule. Customary rules are emerging through a pretty contested process. Much of it has to do w where the internet is
State may cirminalise conduct of its national wherever they may be
a.k.a. ‘active personality’
More commonly used in civil law jurisdictions
Nationality required at time of commission
Corporations are nationals of their state of incorporation
Territoriality and Nationality are the only heads that can be applied to any sort of crime. The other have narrower jursidiciton
The "protective" principle
Principle is that Ss may criminalise extraterritorial acts of aliens to protect fundamental national interests (usually security, but not necessarily)
Scope of the protective principle
Has not traditionally been a general principle, but rather an explanation of certain discrete bases
Counterfeiting of your currency for example
How board it goes remains to be seen. We know that attacks against a HOS is covered, counterfeiting, attacking missile shield, and some more, but how far is not known. Will be figured out as time goes by
Active personality = when offender is national – passive personality = when victim is national.
In old days this was very controversial
These days, w lots of SP and OJ and acknowledged in different cases in ICJ, it is permissible today at least as regards serious offences against the person.
Murder, GBH etc
States now regularly criminalise extraterritorial acts by aliens where victim is one of their nationals
How far it goes is unclear. Homicide is covered. Whether it extends to other crimes, particularly not against the person, only time will tell
Nationality required at time of commission
Sui generis bases
Bases on their own
Ships on high seas
Aircraft in flight
Ships on high seas
The exclusive prescriptive jurisdiction is that of the flag state. So the state where the ship is registered.
Problem is companies registering ships in Liberia and then treating their crew like slaves.
UN Convention on the Law of the Sea 1982, art 92(1), as consonant with customary international law
Ships within territorial sea?
Once in territorial seas, the usual rule apply, and plus the flag state can also criminalise
Aircraft in flight
Similar to ships on high seas, but jurisdiction is strictly concurrent.
The state where the aircraft is registered may cirmianlise, but that is not to exclusion of other state
If flying over high seas, no T, but nationality and stuff is still relevant
Tokyo Convention on Offences and Other Acts Committed on Board Aircraft 1963, arts 3(1), 1(2) and 1(3), as probably consonant with customary international law
There are may armies and navies and air forces in the world where foreigners can fight
The state in whose army they are serving may criminalise their conduct wherever they are.
Ghurkas fighting in Iraq are aliens in foreign territory but can still cirminalise their actions
The "effects" doctrine
State may crimianlise extraterritorial acts of non nationals merely on basis that effects are felt in its territory (not that a constituent element happens in its territory)
Most obvious example is American anti-trust law. Which is not criminal per se, but may be criminal damages
Uncommon and controversial
Seemingly acceptable where intentional, direct and substantial harmful effect within territory
Permissible in narrow circumstances
Some s beginning to crimanlise extraterritorial conduct of non nationals merely bc they are permanent residents
Some use it only in reference to stateless individuals
Others use for those w other bases
Residency required at time of commission
Universal prescriptive jurisdiction = assertion of criminal jurisdiction where no other recognised basis of J exists
Sometimes said that any state may crimnalise.
Under CIL that is what it means, but there are also treaty forms of UJ
At point of commission no other link exists
We are going to see to what extent it exists
"Universal jurisdiction in absentia"
In Arrest Warrant a few judges referred to UJ in absentia – this is the conflation of 2 different things
UJ – criminalising conduct regardless of any link
And enforcing in absentia – w/out person’s presence
Generally in CL, proceedings in absentia is not permitted (except in certain circumstances).
In civil law jurisdictions can have it, but will usually need to re-trial when they catch the person
Judges unfortunately treated UJ in absentia as an especially bad JTP basis
Really 2 different Qs. Can in absentia be okay? Answer is yes, IL allows this
So logically nothing worse about UJIA than usual UJ
Piracy jure gentiium
This has always been one
Pircay, by definition, takes place on high seas
In old days, territoriality was only acceptable basis, so if it took place on the high seas, it was outside anyone's jurisdiction
So could either say no one criminalise it or all can
Piracy was threat to all states, so they agreed that they could all cirmianlise it
Venerable special jurisdictional rule
UN Convention on the Law of the Sea 1982, art 105, as consonant with customary international law (although custom not limited to state of capturing vessel)
Slavery and the slave trade
Maybe, maybe not
Certainly it's a crime against humanity, so if CAHs give rise to UJ, then slavery does
Crimes under CIL
There are a few crimes where, in exception to usual IL situation (of not binding individuals), where IL stops idividuals from doing certain things )Wcs, CAHs, genocide, slavery etc)
Widespread belied that these attracted UJ since WW2
AG for Israel v Eichmann (1962)
Eichmann was bureacratically in charge of killing jews. Extradited from Argentina to Israel. Tried to use passivity principle, but Israel didn't exist back then, so used UJ, which everyone was happy with
Arrest Warrant (number of separate and dissenting opinions)
re Crimes under CIL
All obiter dicta
Although they were not actually required to determine the point, bc C conceded, some of the judges went out of their way to say UJ existed only for piracy
Then other judges had to respond and say no ofc not
This led to something of a controversy
States' view on crimes under CIL
Pretty much every state, even though they might kick up a fuss when this power is exercised, recognises that CAHs give rise to UJ.
But this is not because of the seriousness of the crimes
Reason is bc it is CIL itself that prohibits these things, which has no place. Not created by single legislature – it is an inherently universal law
If we want to rationalise it on policy terms – reason we have J is so states can draw line between what is theirs and others’ concern. With CIL it is policy of all states
Has proven controversial in its exercise