REVIEW ON JURISDICTION

October 16, 2019

There are three ways in which a state’s jurisdiction is triggered:

1. Prescriptive – power to criminalize laws

2. Enforcing – power to apprehend
3. Adjudicative – power to bring a person to court for possible conviction

The only controversial aspect about Prescriptive Jurisdiction is when a state

legislates on a particular act that did not occur within its territory but has substantial
effects with it (Effects Doctrine). It could also be that this falls under the protective
principle. The only difference between the effects doctrine and the protective principle
would be the state interest that is involved.
Protective Principle involves vital state interest while the effects doctrine will
only involve economic interest.
The Protective Principle is settled under international law, the effects doctrine is
what’s more controversial.

You already know about Objective Territoriality and Subjective Territoriality right? It is
subjective because it grants the state the discretion to choose whether or not to prosecute.
Given that, it is aware that at the end of the day, some third state would prosecute because that
state will be the state where the crime was committed.

The controversial aspect again would be the effects doctrine and the landmark
case on that will be the Alcoa Case in the US which is not assigned to you but this
pertains to the act of 4 foreign nationals who intended to affect the Aluminum market in
the US. The act occurred in Switzerland, not within US Territory. But because the act is
in contravention of fair trade or anti trust laws, it fosters monopoly, unfair mergers and
unfair competition, the act is intended to affect the US market so therefore the Effects
doctrine will apply, right?
The Effects doctrine will only apply if there is a deliberate plan to target a
specific location.

Remember the 2 requisites for the effects doctrine to apply:

1. There must be an express purpose – meaning a deliberate or premeditated plan

2. The plan must be intended to substantially affect a particular country which in the
Alcoa case is the US

We know what an Active Personality is, so we will not discuss that. The question is,
for a person with dual personality, kinsa man nga state ang muexercise ug
jurisdiction? We consider first Nottebohm, we consider Genuine Link, we consider
Effective Nationality Link, right? If both of them has genuine link to the person, we
now consider the state with the most significant connection to the act, where the
act occurred, for practicality purposes. Ngano man? Kay naa sa iyaha ang evidence,
witnesses and naa sa iyahang tugkaran nahitabo ang act.

General rule: It is up to the state to determine under what circumstances to grant

nationality.
Exception: When a state enters into a treaty that validly restricts that sovereign
right and also if there is no genuine link especially if a third state is questioning that.
 Make no mistake, is Nottebohm a national of Liechtenstein? YES! Because
Liechtenstein has every right to grant him nationality even if waived the residency
requirement but as to the question of whether or not Liechtenstein should be given the
right to exercise diplomatic protection, diha na dili pwede, because diplomatic
protection requires genuine effective link.

Grant of nationality is one thing, exercising your rights under that nationality is
another, in which case, si Germany dapat ang mu-espouse sa iyang claim. Ang pinaka
naa juy connection niya is Guatemala but it is Guatemala that deprived him of his right
so ang next niya na haven is Germany.

Generally the question of nationality is a Domestic Question, it becomes an

International Law Question when states challenge that grant of nationality as when the
UK challenged the decrees in Tunis right because they cover even British nationals which
according to the treaty, must not be covered. In the same way that Guatemala
challenged the nationality link of Nottebohm in order to question the legal standing of
Liechtenstein to appear before the ICJ.

The prevailing view is that a ship is a national of the state of the flag that it
carries. But that’s not the case in Niberia and Panama. Nibera and Panama’s way of
granting nationality is unorthrodox, unpopular, weird. But just because it is weird does
not mean it is not a valid exercise of a sovereign right and therefore it is well within
their rights to conceive their registered tonnage alone and not flag.

Passive personality is fine although it may be irrelevant at times especially if it deals with
petty crimes because of the question of foreseeability that the accused may not be able to
foresee na ang iya diay nga gibuhat nga act is a penal offense under the law of the other person.
To be make it more effective we will circumscribe its use to the most heinous crimes.

A state particularly strong… *somebody coughed so wa ko kadungog sa giingun ni

atty*.. it is possible that three states will be involved – the state where the crime is
committed, the state of the offender and the state of the victim so what do we do? We
consider passive personality as a subsidiary means. Meaning if the Territorial state
refuses to prosecute then the state of the victim will prosecute because it is unlikely
that the state of the accused will prosecute.

Kani this is an attack under the embassy and obviously this is under the protective
principle because an attack on the embassy is an attack on the state itself.

We discussed vital state interest right? A state has the sole prerogative to determine
which interests are vital to it.

Remember Shermann Act and Alcoa? Every time maaffect ang economic interest sa
US ikiha niya ang foreign corporations, so a lot of European corporations refused to
enter into agreements and contracts with these US corporations as a means of
Boycott because abusive naman ang exercise sa jurisdiction sa US. Everytime nlang
na disadvantageous ang bargain sa iyaha muexercise sya ug jurisdiction under the
Effects Doctrine. Because of that boycott medyo relaxed na ang anti-trust laws sa
US.
 The Universal Jurisdiction is also a subsidiary means. Mao jud na ang dapat nga akong
i-emphasize sa inyoha. You do not simply apply Universal Jurisdiction because it is impractical.
Flying witnesses, flying the accused to another country for them to be tried. You have to issue
even an international warrant of arrest. So when do you apply? When there is a vacuum. As
much as possible you apply the traditional mode of acquiring jurisdiction: territoriality,
nationality and protective. Everything else fails then resort to Universal Jurisdiction. Mudawat ra
bitaw gyod ko if you apply Universal Jurisdiction to violation of jus cogens norms. This is what
it says, delicta juris gestium or crimes against the law of nations.

There are two forms:

1. Universal Jurisdiction in absentia

2. Aut dedere aut judicare – kinsa nagpasikat ani? Si Belgium na sad. This one is
not recognized under International Law. You know why? It’s crazy. Belgium said
it can prosecute individuals even if they committed a crime abroad, even if the
victims were abroad and even if the accused is not within the Belgian territory.
Belgium did not succeed here. But it did succeed on one case. Unsa man to?

Belgium v. Senegal – niingon si Belgium na if dili nimo sya iprosecute

Senegal, i-extradite ninyo sya kay ako muprosecute. So kani ang gidawat
sa international law.

During the advent of the war of terror by the US, we have so many movies and debate topics on
extraordinary rendition , meaning Mala Captus Bene Detentus– meaning a rendition is not valid.
Kay ang pinakavalid kay extradition man. Ang deportation kay dili na sya important sa war on
terror because they need to extract information from these individuals, they don’t want to
deport them.

There are movies about extraordinary rendition have you watched My Name is Khan, and I Am
Not a Terrorist? Mr. Khan in that movie was invalidly abducted, no just cause of his arrest only
because of the way he looked.

So you know the difference between these two right? The first one is unilateral the second is
bilateral.

Abduction is Mala Captus Bene Detentus. Remember where did we find Mr. Eichmann? In
Argentina right? Because of the illegal abduction of Israelli Armed Forces. Despite the illegal
kidnapping, International Law recognized that it was justified by the circumstances.

For purposes of the exam, you have to be as accurate as possible. Precision is the language of
the law.

There are conditions to Extradition

1. It must be pursuant to a treaty – you cannot force a state to surrender an individual so

there has to be a treaty because it is the manifestation of state consent
2. The offense must be extraditable – separate ang requirement sa extraditable offense ug
double criminality because before you can proceed to an analysis whether the request
complied with the double criminality rule, the offense must be extraditable first.

Extraditable offense – only criminal offenses excluding political offenses even civil
offenses. Political offense may be analyzed further if there is an Attentat clause. The
attentat clause, if muaapply na sya, the offense will no longer be categorized as political
offense.

Double Criminality Rule

 Rule of Specialty - the extraditable offense is listed. You cannot prosecute a person or an
offense not included in the extradition request otherwise it will violate the consent
given by the requested state

So Basic Principles:

1. The obligation to extradite is treaty based

2. Purpose – prosecution and execution
3. Pacta sunt servanda applies – you cannot just refuse extradition on whimsical
grounds but there are grounds which validly allows a state even if there is a treaty,
to refuse extradition.

Attentat Clause

Asa nagstart ang Attentat clause? Belgium. There was a time that Napoleon Bonaparte
was the emperor of France. He travelled to Belgium to attend a special gathering.
Disgruntled French citizens were in Belgium. Kabalo sila sa iyang track and giatngan sya
ba. The intent was to kill him. But he survived. Because of that France requested to
extradite those two Belgium citizens.\ but Belgium refused. Ngano man? Because under
Belgium law at that time, the attempt at a life of a Chief Executive is considered political
because during that time assassination attempts are driven by political motives because
of the culture of distrust, lack of accountability. So wala jud sya gi-extradite sa Belgium
and because of that naulaw si Belgium kay klasro na kayo na there was an attempt at
the life of a known political leader and Belgium is clothing it with political
characterization. Since then tanan na nga treaty, extradition treaties na gienter ni
Belgium with all other countries already have an Attentat Clause just to resolve all
doubts as to the nature of an assanation attempt. But until now dili pa clear if political
ba jud na because there are instances na dili sya motivated by political motive, there
could be a group of militant activists na murag feeling nila na wa najud kapadulngan ang
nasod because of the president so they take up arms and kill the president, they are not
motivated by ill intent because wala may sala ang president nila but to them nakasala
ang president sa Filipino people so they assassinate him. So just to resolve all doubts,
they put an Attentat clause. Ngano man? Because they want to put premium on civic
participation, Diba mao mana ang political offense exemption. We also don’t want to
encourage people to take matters in their own hands.

So the first limitation, diba ang general rule is Pacta Sunt Servanda? The exception is the
principle of non-refoulement which provides that if a person has arrived in your borders,
through legal or illegal means, and the reason for that is fear of persecution from his own
government, you should not refoule or return it to his government. Even if ang iyang entry sa
imong border is illegal without valid papers because there is a premium given to life. So there is
an extradition request, you can refuse by invoking this principle. This is found in the Refugee
Convention, Article 33.

Should the principle of non-refoulement be applied to water refugees? When there is a

risk of death penalty, that is very obvious. If you are sure that when you extradite or
return the person to his mother state, he will be denied of due process. Actually certain
countries already have a list of countries na if murequest ug extradition dili nila ipadala
because those countries have record for human rights violations and disregard for the
rule of law. For example Pakistan, there was an extradition request for the return of a
young womAn who refused to be married under Pakistan Law who went to UK because
she doesn’t like child marriages and arranged marriages. The French government
 refused to return her. Another is Canada, a lot of African women went there to escape
FGM, and Canada refused the request of extradition.

There is a very important case about a Muslim woman who fell in love with a Christian
man. They sought extradition in New Zealand and the latter refused to surrender them
because they know what will happen to them when they are returned to their home
states. They call them romantic refugees. There are romantic refugees, climate refugees
and even marijuana refugees. They are forced to go to states who legalize Marijuana not
because they want to use but because it is the only cure to their diseases and most of
them are babies.

A state must fully abstain from prosecution if the defendant is tried for an offense
different from which he is extradited. This is Rule on Specialty.

A state must fully refuse jurisdiction if another state has protested. Did Argentina
protest? Initially it did because of the illegal abduction of Eichmann. But subsequently niwaive ra
si Argentina and it did not purse it. If gipadayon to ni Argentina dili jud muapply ang Mala Captus
Bene Detentus mapagus jud ug uli si Israel ug uli kay Eichmann. Dili man siguro ka murequest ug
uli if dili nimo sya itry diba?

The reason why Mala Captus Bene Detentus is recognized even if the capture is illegal
is because when he arrives in court he is given the same due process guaranties that
any other accused is granted so bahalag illegal ang capture basta pag abot nimo sa
courtr tanan nimong rights kay ihatag nimo.

Unya mugawas sa inyong quiz bee kay kanus a sya na-abduct.

So that’s it! So the next meeting everything under 6.1. and then pagkastaurday we
will finish everything na dayon under Diplomatic Immunities and Protection. So guys
enjoy your break, have an unadulterated break, ayaw na mo dala dala ug libro
kunuhay.