JURISDICTION

SOVEREIGNTY

 states are regarded as equal in international law regardless of their size,

population or wealth
 states have authority to create laws and enforce them
 to freely use and dispose of the territory under the state’s jurisdiction
and to perform activities deemed necessary to the population
 no other state
 should intrude into the state’s territory – ius excludendi alios
 the right of immunity from the jurisdiction of foreign courts for acts
performed by the state in its sovereign capacity
 the right of state representatives acting in their official capacity to
 immunity from the legal system of the state in which they are operating
 to respect for life and property of the state’s nationals and state officials
abroad
JURISDICTION
An inherent element of sovereignty is the power to govern and to
legislate through the creation and application of domestic laws
which prescribe, proscribe, adjudicate and enforce over individuals,
subject to the jurisdiction of that state.

Jurisdiction is the government’s general power to exercise authority

over all persons and entities within its territory

 Jurisdiction is closely related to, and stems from, the principle of state
sovereignty and sovereign equality and independence of states from non-
interference in its internal affairs.
 Jurisdiction extends to events which occur within a state. But a state can
extend its jurisdiction to its citizens/nationals when abroad or to actions
which although occurring abroad have an adverse impact on the security of
the state in question.

General principles of jurisdiction

 The traditional starting place for a consideration of jurisdiction is the
judgment in the Lotus case.

 Jurisdiction takes different forms and is subject to customary international

law principles which determine the extent of a state’s jurisdiction in
different circumstances.

Types of Jurisdiction

PRESCRIPTIVE JURISDICTION JURISDICTION TO

JURISDICTION TO ADJUDICATE ENFORCE
the state legislature’s the power to hear the power to ensure
right to create, amend and settle legal compliance with legal
or repeal legislation. disputes commands

Example of adjudicative jurisdiction:

 the UK/Netherlands Agreement 1999 permitted the trial of the two
Libyan Lockerbie bombing suspects by a Scottish court, according to
Scots law, in the Netherlands.
EXTRATERRITORIALITY
The second part of the Lotus judgment would appear not to require a nexus
between the state and the exercise of prescriptive jurisdiction outside the
state – subject only to the existence of any rules of international law
prohibiting it. In practice, states asserting extraterritorial jurisdiction usually
have some connection with the person or events over which they are claiming
jurisdiction.

The use of extraterritorial jurisdiction has the potential to cause

international tension.
 Globalisation poses challenges to the effectiveness of territorially based jurisdiction
 When used cooperatively extraterritorial jurisdiction has the potential to fill certain
regulatory and accountability gaps.
 States are also increasingly prepared to use extraterritorial jurisdiction in relation to
criminal activity which has international reach, such as terrorism, money
laundering, corruption, grave human rights breaches and human trafficking.
 the customary international law principles of jurisdiction are complex and at times
controversial in their application, as they are evolving and adapting to a world
where individuals and corporations increasingly act and produce effects across
state borders.