Worksheet 8 Flashcards
What is 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
There are tree types of jurisdiction?
- Jurisdiction to prescribe
- Jurisdiction to adjudicate
- Jurisdiction to enforce
What is jurisdiction to prescribe?
To make a state’s law applicable to the activities, relations, or status of persons, or the interests of persons in things whether by legislation, by executive act or order, by administrative rule or regulation, or by determination of a court
What is jurisdiction to adjudicate?
Under which a state has the authority “ to subject persons or things to the process of its courts or administrative tribunals, whether in civil or criminal proceedings, whether or not the state is a party to the proceedings
What is jurisdiction to enforce?
Under which a state in empowered to induce or compel compliance or to punish non-compliance with its laws or regulations, whether through courts or by use of executive, administrative, police or other non-judicial action
What is the territoriality principle?
Every state has jurisdiction over persons and events within its territory
A state is also allowed to exercise subjective and objective territorial jurisdiction over acts that occur partly outside its territory
Differentiate between subjective and objective territorial jurisdiction
Subjective territorial jurisdiction: a state will have jurisdiction over conduct that commences within the state but is completed abroad
Objective territorial jurisdiction: concerns conduct that commences outside the state and is completed within it
What is the nationality principle?
State may exercise jurisdiction over it’s nationals when commit offenses abroad
Corporations when they are incorporated in that state or have their seat there - but not on the ground that the majority of shareholders are nationals of that state
Ships registered in accordance with that state’s domestic law and sailing under its flag
Aircraft registered with that state
What is the protective principle?
A state may exercise jurisdiction over foreigners for acts committed outside of the territory if such acts are directed against the security of the state or threaten its overriding interests or the integrity of its governmental functions
What is the passive personality principle?
Controversial principle by which a state may extrise jurisdiction over foreigners for acts if the victim of the act is its national
What is concurrent jurisdiction?
More than one state may have jurisdiction over a person or event as well as legitimate interest in dealing with that same person or event - it is for the state to clecicle whether to exercise its jurisdiction as well as to assess the impact of any such exercise on international relations
What is jurisdiction to enforce?
IL prohibits a state from exercising sovereign functions in the territory of another state without that state’s consent
Differentiate between the plea of state immunity, plea of non-justiciability and act of state
Plea of state immunity - national court barred from exercising its adjudicative and enforcement jurisdiction on the ground of the quality of the defendant
Plea of non-justiciability - a municipal court has no jurisdiction because of that subject matter of proceedings
Act of state - applies to the legislative or other governmental acts of a recognized foreign state or government within the limits of its own territory
What are limits to the doctrine?
State immunity may be waived by a foreign state resulting in the proceedings being continued, but successful places of non-justiciability and of act of state always terminate proceedings before a municipal court
What is state immunity?
A rule of customary international law under which municipal courts of one state are prevented from exercising their adjudicative and enforcement jurisdiction in disputes where a foreign state is named a defendant or intervenes by means of interpleader proceedings
