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State Jurisdiction

State Jurisdiction Akehurst, Brownlie, Malcolm Shaw

MOOC –International Law –

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(For the purpose of circulation only among 5th semester students of Chanakya National Law
University, Patna, batch 2018-2023)
Note- this document is compilation of portions of acknowledged authors’ works, collated for
academic purposes alone. This is NOT an original work and is not for purpose of public circulation.
Note- Please read this handout along with PPT and other reference material

Forms of jurisdiction

Jurisdiction is an aspect of sovereignty: it refers to a state’s competence under international law

to regulate the conduct of natural and juridical persons. Jurisdiction concerns the power of the
state to affect people, property and circumstances and reflects the basic principles of state
sovereignty, equality of states and non-interference in domestic affairs

Sovereignty is the basis of jurisdiction. As noted by Max Huber in the Palmas Island case:
Sovereignty in the relations between States signifies independence. Independence in regard to a
portion of the globe is the right to exercise therein, to the exclusion of any other State, the
functions of a State. The development of the national organization of States during the last few
centuries and, as a corollary, the development of international law, have established this principle
of the exclusive competence of the State in regard to its own territory in such a way as to make it
the point of departure in settling most questions that concern international relations

The term jurisdiction can have a large number of different meanings. The powers under
consideration may be powers to legislate in respect of the persons, property, or events in question
(legislative or prescriptive jurisdiction), the powers of a state’s courts to hear cases concerning
the persons, property or events in question (judicial or adjudicative jurisdiction), or the powers of
physical interference exercised by the executive, such as the arrest of persons, seizure of
property, and so on (enforcement jurisdiction).
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It is essential to differentiate between these three groups of powers, particularly between the
second and third groups, although the distinctions are not always rigid in practice. For instance,
if a man commits a murder in England and escapes to France, the English courts have
jurisdiction to try him, but the English police cannot enter French territory and arrest him there;
they must request the French authorities to arrest him and to surrender him for trial in England.
What has been said follows from the principle of territorial sovereignty, according to which a
state may not perform any governmental act in the territory of another state without the latter’s
consent. But Territory is not the only basis of jurisdiction. There are other basis of jurisdiction as
well, for instance, nationality.

There are many cases in which states have claimed the right to their own law enforcement
abroad. In Lotus case, the PCIJ had recognized “On the question of jurisdiction in general that:

‘Far from laying down a general prohibition to the effect that States may not extend the
application of their laws and the jurisdiction of their courts to persons, property or acts outside
their territory, [international law] leaves them in this respect a wide measure of discretion which
is only limited in certain cases by prohibitive rules; as regards other cases, every State remains
free to adopt the principles which it regards as best and most suitable.’

This passage has been much criticized. Its emphasis on plenary state discretion is contradicted by
the approach of the Court in Anglo-Norwegian Fisheries and Nottebohm cases. Following Arrest
Warrant case, there are hints that it has been reversed: if a state wishes to project its prescriptive
jurisdiction extra-territorially, it must find a recognized basis in international law for doing so.

Further, open or secret performance of state acts on the territory of another state without its
consent, such as the kidnapping of the Nazi criminal Eichmann in Argentina by Israel in 1960
and the kidnapping in the Alvarez-Machain case by US agents, or the sinking of Rainbow
Warrior by French agents in a New Zealand harbour, although some are disputed, generally
constitute violations of the principles of territorial integrity and non-intervention.

No state has the authority to infringe the territorial integrity of another state in order to
apprehend an alleged criminal, even if the suspect is charged with an international crime, such as
drug trafficking as in the case of General Manuel Noriega who was brought to the United States
for the purpose of criminal prosecution after President Bush had ordered the military invasion of
Panama (on rather dubious grounds of legal justification) on 20 December 1989.

Criminal jurisdiction of national courts

Note- here we are looking at the various basis on which States exercise jurisdiction, especially
criminal jurisdiction, and particularly in situations where a citizen of another state or territory of
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another state may be involved. Some of these basis may allow states to exercise jurisdiction over
foreigners.

In criminal trials, the bases of jurisdiction most frequently invoked by states are as follows (some
of them being more widely accepted than others).

Territorial Principle

Every state claims jurisdiction over crimes committed in its own territory, even by foreigners.
Sometimes a criminal act may begin in one state and be completed in another: for instance, a
man may shoot across a frontier and kill someone on the other side. In such circumstances both
states have jurisdiction; the state where the act commenced has jurisdiction under the subjective
territorial principle, and the state where the act is completed has jurisdiction under the objective
territorial.

The objective territorial principle is more widely accepted. This principle is applicable in the
case of conspiracy, violation of anti trust laws and immigration laws by activity abroad.

Example Cases: Lotus case

The nature of territorial sovereignty in relation to criminal acts was examined in the
Lotus case.

Facts: The French steamer, Lotus, was involved in a collision on the high seas with the
Boz-Kourt, a Turkish collier. The latter vessel sank and eight sailors and passengers died
as a result. Because of this the Turkish authorities arrested the French officer of the watch
(at the time of the incident) when the Lotus reached a Turkish port. The French officer
was charged with manslaughter and France protested strongly against this action,
allegingthat Turkey did not have the jurisdiction to try the offence. The case came before
the Permanent Court of International Justice, which was called upon to decide whether
there existed an international rule prohibiting the Turkish exercise of jurisdiction.

Because the basis of international law is the existence of sovereign states, the Court
regarded it as axiomatic that restrictions upon the independence of states could not be
presumed. However, a state was not able to exercise its power outside its frontiers in the
absence of a permissive rule of international law. But, continued the Court, this did not
mean that 'international law prohibits a state from exercising jurisdiction in its own
territory, in respect of any case which relates to acts which have taken place abroad
and in which it cannot rely on some permissive rule of international law: In this
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respect, states had a wide measure of discretion limited only in certain instances by
prohibitive rules.

Because of this, countries had adopted a number of different rules extending their
jurisdiction beyond the territorial limits so that 'the territoriality of criminal law,
therefore, is not an absolute principle of international law and by no means coincides with
territorial sovereignty.

The Court rejected the French claim that the flag state had exclusive jurisdiction over the
ship on the high seas, saying that no rule to that effect had emerged in international law,
and stated that the damage to the Turkish vessel was equivalent to affecting Turkish
territory so as to enable that country to exercise jurisdiction on the objective territorial
principle, unrestricted by any rule of international law prohibiting this.

The general pronouncements by the Court leading to the dismissal of the French
contentions have been criticised by writers for a number of years, particularly with
respect to its philosophical approach in treating states as possessing very wide powers of
jurisdiction which could only be restricted by proof of a rule of international law
prohibiting the action concerned. It is widely accepted today that the emphasis lies the
other way around.

It should also be noted that the Lotus principle as regards collisions at sea has been
overturned by article l l (1) of the High Seas Convention, 1958, which emphasised that
only the flag state or the state of which the alleged offender was a national has
jurisdiction over sailors regarding incidents occurring on the high seas. The territorial
principle covers crimes committed not only upon the land territory of the state but also
upon the territorial sea and in certain cases upon the contiguous and other zones and on
the high seas where the state is the flag state of the vessel.

New Examples- Channel Tunnel

As modern communications develop, so states evolve new methods of dealing with new
problems. In the case of the Channel Tunnel, for example, providing a land link between
the UK and France, these countries entered into an agreement whereby each state was
permitted to exercise jurisdiction within the territory of the other. The Protocol
concerning Frontier Controls and Policing, Co-operation in Criminal Justice, Public
Safety and Mutual Assistance relating to the Channel Fixed Link was signed on 25
November 1991.
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Under this Protocol, French and UK frontier control officers are empowered to work in
specified parts of one another's territory. These areas are termed 'control zones' and are
located at Cheriton, Coquelles, on board through trains and at international railway
stations. The frontier control laws and regulations of one state thus apply and may be
enforced in the other. In particular, the officers of the adjoining state shall in their
exercise of national powers be permitted in the control zone in the host state to detain or
arrest persons in accordance with the frontier control laws and regulations of the
adjoining state. Article 38(2) of the Protocol provides that within the Fixed Link (i.e. the
Tunnel), each state shall have jurisdiction and shall apply their own law when it cannot
be ascertained with certainty where an offence has been committed or when an offence
committed in the territory of one state is related to an offence committed on the territory
of the other state or when an offence has begun in or has been continued in its own terri-
tory. However, it is also provided that the state which first receives the person suspected
of having committed such an offence shall have priority in exercising jurisdiction.

New Examples-Israel-Jordan Treaty of Peace, 1994.

Annex I(b) and (c) of the Treaty, relating to the Naharayim I Baqura Area and the
ZofarIAl-Ghamr Area respectively, provides for a special regime on a temporary basis.
Although each area itself is recognised as under Jordan's sovereignty, with Israeli private
land ownership rights and property interests, Jordan undertakes to grant unimpeded entry
to, exit from, land usage and movement within the area to landowners and to their
invitees or employees and not to apply its customs or immigration legislation to such
persons. In particular, Jordan undertakes to permit with minimum formality the entry of
uniformed Israeli police officers for the purpose of investigating crime or dealing with
other incidents solely involving the landowners, their invitees or employees. Jordan
undertakes also not to apply its criminal laws to activities in the area involving only
Israeli nationals, while Israeli laws applying to the extraterritorial activities of Israelis
may be applied to Israelis and their activities in the area. Israel could also take measures
in the area to enforce such laws.

Thus although jurisdiction is primarily and predominantly territorial, it is not inevitably

and exclusively so and states are free to consent to arrangements whereby jurisdiction is
exercised outside the national territory and whereby jurisdiction by other states is
exercised within the national territory.

Effects Doctrine
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In addition, it has been suggested that there exists a further head of prescriptive (legislative)
jurisdiction, the so-called ‘effects doctrine’. This may gain traction where an extra-territorial
offence causes some harmful effect in the prescribing state, without actually meeting the criteria
of territorial jurisdiction or representing an interest sufficiently vital to the internal or external
security of the state in question to justify invoking the protective principle.

While controversial, the doctrine is not objectionable in all cases. It was at least acknowledged
by the majority in the Lotus and by certain members of the International Court in Arrest
Warrant. Today, ‘effects’ or ‘impact’ jurisdiction is practised largely by the US and, with greater
qualifications, by the EU.

In Alcoa, for example, Judge Learned Hand stated that it was ‘settled law’ that ‘any state may
impose liabilities, even upon persons not within its allegiance, for conduct outside its borders
which has consequences within its borders which the state reprehends’, a position since followed
extensively in US antitrust jurisprudence. Since Alcoa, the effects doctrine and its expansion
have, in many cases, been driven by the US approach to jurisdiction. Whereas previously this
resembled closely the conception of various heads of prescriptive jurisdiction, it has now
changed its perspective; it is possible to speak of antitrust jurisdiction, tort jurisdiction, and
taxation jurisdiction with some of these having a broader extra territorial reach than the others.
Similarly, the US Export Administration Act has resulted in actions against non American
corporations involved in contracts relating to the construction of the Western Siberian pipeline.

These principles evoked strong reaction from other states. and UK and European Union also
enacted legislation to provide defensive measures against American policy. The European Court
of Justice has applied a principle similar to the American ‘effects doctrine’ in respect of
company subsidiaries and the Advocate-General espoused this view in his Opinion in
the Woodpulp Cases. In any event US legislation has continued to provoke protests from the EU
and from individual states. This legislation includes the Cuban Democracy Act (1992), the
D’Amato-Kennedy Act (1996), and the Helms-Burton Act (1996).

Nationality Principle

Whether a person has the nationality of a particular state is determined by the municipal law of
that state. International law only lays down certain limits for states to prescribe which criteria are
relevant for nationality. Nationality, as a mark of allegiance and an aspect of sovereignty, is also
generally recognized as a basis for jurisdiction over extra-territorial acts. The application of the
principle may be extended by reliance on residence and other connections as evidence of
allegiance owed by aliens, and also by ignoring changes of nationality.

Many countries, particularly those with a legal system based upon the continental
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European model, claim jurisdiction over crimes committed by their nationals,

notwithstanding that the offence may have occurred in the territory of another state (active
nationality principle).

Common law countries tend, however, to restrict the crimes over which they will exercise
jurisdiction over their nationals abroad to very serious ones. The UK legislature has
conferred jurisdiction on its courts in respect of, inter alia, treason, murder, bigamy,
soccer hooliganism, child sexual abuse, and breaches of the Official Secrets
Acts wherever committed by British nationals or residents. But the United Kingdom does
not challenge the extensive use of this principle by other countries.

Under section 21 of the Antarctic Act 1994, when a British national does or omits to do
anything in Antarctica which would have constituted an offence if committed in the UK,
then such person will be deemed to have committed an offence and be liable to be
prosecuted and punished if convicted.

In addition, the War Crimes Act 1991 provides for jurisdiction against a person who was
on 8 March 1990 or subsequently became a British citizen or resident in the UK.
Proceedings for murder, manslaughter or culpable homicide may be brought against that
person in the UK, irrespective of his nationality at the time of the alleged offence, if the
offence was committed during the Second World War in a place that was part of
Germany or under German occupation and constituted a violation of the laws and
customs of war.

The courts of the United States also accept nationality as a basis for jurisdiction. The
Restatement (Third)provides that a state may exercise jurisdiction through its courts to adjudicate
if the person is a national of the state, but US courts ‘may try a person only for violation of
United States law, not for violation of the penal law of a foreign state’.

By virtue of article 91 of the 1982 Convention on the Law of the Sea, ships have the
nationality of the state whose flag they are entitled to fly. Each state is entitled to fix the
conditions for the grant of its nationality to ships, for the registration of ships in its
territory and for the right to fly its flag. However, there must be a genuine link between
the state and the ship. By article 17 of the Chicago Convention on International Civil
Aviation, 1944, aircraft have the nationality of the state in which they are registered,
although the conditions for registration are a matter for domestic law.

Passive Nationality Principle or Passive Personality Principle

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Some states, such as Mexico, Brazil and Italy, claim criminal jurisdiction also on the basis of the
passive nationality principle or passive personality principle to try an alien for crimes
committed abroad affecting one of their nationals. Inter alia on this principle, in the Cutting
case (1886), a court in Mexico assumed criminal jurisdiction over an American citizen for the
publication of a defamatory statement against a Mexican citizen in a Texas newspaper. At the
time the United States protested against this, but in the end the case was dropped because the
affected Mexican citizen withdrew the charges.

In the Lotus, the Turkish penal code provided for punishment of acts abroad by foreigners
against Turkish nationals; in effect it was a comprehensive exercise of passive personality
jurisdiction. The Court declined to assess the law as such. The question was whether the specific
factual situation fell within Turkish jurisdiction or not; it held that it did, invoking the protective
principle. However, it must be noted that the court did not resolve the issue on the passive
personality principle but on objective territorial principle

The United States and the United Kingdom have consistently opposed this principle in the past
and it may indeed be argued that the mere fact that the national of a state has been the victim of a
crime committed in another country does not necessarily concern the general interests of the
home state. On the other hand, if the state where the crime has occurred is unwilling or unable to
prosecute the offender, one could also argue that the home state is entitled to protect its own
citizens once the foreign suspect comes under its control. Recent developments in the United
States have come to accept the passive nationality principle with regard to terrorist activities and
similar serious crimes. The Restatement (Third) notes:

The principle has not been generally accepted for ordinary torts or crimes, but it is increasingly
accepted as applied to terrorist and other organized attacks on a state’s nationals by reason of
their nationality, or to assassination of a state’s diplomatic representatives or other officials.

Moreover, aut dedere aut iudicare (The obligation to extradite or prosecute) provisions in most
criminal law treaties authorize the use of passive personality jurisdiction as between states
parties. (Convention on Offences Committed on Board Aircraft; Article 9 of the International
Convention against the Taking of Hostages, 1979, in detailing the jurisdictional bases that
could be established with regard to the offence, included the national state of a hostage 'if
that state considers it appropriate)

In 1986, the US adopted the Omnibus Diplomatic Security and Anti-Terrorism Act,
inserting into the criminal code a new section which provided for US jurisdiction over
homicide and physical violence outside the US where a national of the US is the victim.
The section is less sweeping than it appears, since the written certification of the Attorney
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General is required.

In US v. Yunis (No. 2) the issue concerned the apprehension of a Lebanese citizen by

US agents in international waters and his prosecution in the US for alleged involvement
in the hijacking of a Jordanian airliner. The only connection between the hijacking and
the US was the fact that several American nationals were on that flight. The Court
accepted that both the universality principle and the passive personality principle
provided an appropriate basis for jurisdiction in the case. It was stated that although the
latter principle was the most controversial of the jurisdictional principles in international
law, it was accepted by the US and international community in recent years in the sphere
of terrorist and other internationally condemned crimes.

Protective Principle

This allows a state to punish acts prejudicial to its security, even when they are committed by
foreigners abroad—for example, plots to overthrow its government, espionage, forging its
currency and plots to break its immigration regulations. Most countries use this principle to some
extent, and it therefore seems to be valid, although there is a danger that some states might try to
interpret their ‘security’ too broadly. The principle is justifiable on the basis of protection of a
state's vital interests, since the alien might not be committing an offence under the law of the
country where he is residing and extradition might be refused if it encompassed political
offences. Currency, immigration, and economic offences are frequently punished.

The UK and the US allow significant exceptions to the doctrine of territoriality, though without
express reliance upon the protective principle. Thus, courts of the former have punished aliens
for acts on the high seas concerning illegal immigration (Naim Molvan v AG for
Palestine [1948] AC 531; Giles v Tumminello (1969) 38 ILR 120.)

Joyce v Director of Public Prosecutions –

Facts: Nazi propagandist 'Lord Haw-Haw'. Joyce was born in America, but in 1933 fraudulently
acquired a British passport by declaring that he had been born in Ireland. In 1939, he left Britain
and started working for German radio. The following year, he claimed to have acquired German
nationality. The case turned on whether the British court had jurisdiction to try him after the war,
on a charge of treason.

The House of Lords decided that jurisdiction did exist in this case. Joyce had held himself out to
be a British subject and had availed himself of the protection (albeit fraudulently) of a British
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passport. Accordingly, he could be deemed to owe allegiance to the Crown, and be liable for a
breach of that duty. The fact that the treason occurred outside the territory of the UK was of no
consequence since states were not obliged to ignore the crime of treason committed against them
outside their territory. Joyce was convicted and suffered the penalty for his actions

The protective principle was also invoked in the Eichmann case in relation to the Jewish victims
of the accused despite the fact that Israel was not a state when the offences in in question
occurred.

Not covered by any sense of the protective principle is the death sentence (backed by the reward
offered) that was imposed by the fatwa issued by the Iranian leader Ayatollah Khomeini on 14
February 1989 against the writer Salman Rushdie (who had to go into hiding under police
protection in his domicile in England) for ‘blasphemy’ in his book The Satanic Verses, which
had aroused great anger in parts of the Muslim world. The protective principle of jurisdiction
must not be confused with ‘diplomatic protection’, which refers to the right of a state to
intervene diplomatically or to raise an international claim on behalf of its nationals against
another state.

Universality Principle

Definition of Universality Principle

In O’Keefe’s words, universal jurisdiction can be defined as prescriptive jurisdiction over
offences committed abroad by persons who, at the time of the commission, are non-resident
aliens, where such offences are not deemed to constitute threats to the fundamental interests of
the prescribing state or, in appropriate cases, to give rise to effects within its territory.

A considerable number of states have adopted, usually with limitations, a principle allowing
jurisdiction over acts of non-nationals where the circumstances, including the nature of the
crime, justify repression as a matter of international public policy. In this sense, universal
jurisdiction is defined by the character of the crime concerned, rather than by the presence of
some kind of nexus to the prescribing state.

Content of Universal Jurisdiction

The District Court of Jerusalem in the Eichmann case remarked:

‘The abhorrent crimes defined in [the Israeli Law] are not crimes under Israeli law alone. These
crimes, which struck at the whole of mankind and shocked the conscience of nations, are grave
offences against the law of nations itself (delicta juris gentium). Therefore, so far from
international law negating or limiting the jurisdiction of countries with respect to such crimes,
international law is, in the absence of an International Court, in need of the judicial and
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legislative organs of every country to give effect to its criminal interdictions and bring the
criminals to trial. The jurisdiction to try crimes under international law is universal.’

The original crime to which universal jurisdiction attached was that of piracy iure
gentium, which was in turn followed by slavery. In modern times, it has been extended to the so-
called ‘core crimes’ of customary international law, being genocide, crimes against humanity and
breaches of the laws of war, and especially of Hague Convention of 1907 and grave breaches of
the Geneva Conventions of 1949. Torture within the meaning of the Torture Convention 1948 is
likely to be subject to universal jurisdiction.

Piracy:
Universal jurisdiction over piracy has been accepted under international law for many
centuries and constitutes a long-established principle of the world community. All states
may both arrest and punish pirates, provided of course that they have been apprehended
on the high seas or within the territory of the state concerned. The punishment of the
offenders takes place whatever their nationality and wherever they happened to carry out
their criminal activities.

Piracy under international law (or piracy jtlregentitim) must be distinguished from
piracy under municipal law. Offences that may be characterised as piratical under
municipal laws do not necessarily fall within the definition of piracy in international law,
and thus are not susceptible to universal jurisdiction (depending of course upon the
content and form of international conventions). Piracy jure gentium was defined in
article 15 of the High Seas Convention, 1958 (and reaffirmed in article 101 of the 1982
Convention on the Law of the Sea) as illegal acts of violence, detention or depredation
committed for private ends by the crew or passengers of a private ship or private aircraft
and directed against another ship or aircraft (or persons or property therein) on the high
seas or term nullius. Attempts to commit such acts are sufficient to constitute piracy and
it is not essential for the attempt to have been successful.

War crimes, crimes against peace and crimes against humanity

In addition to piracy, war crimes are now accepted by most authorities as subject to
universal jurisdiction, though of course the issues involved are extremely sensitive and
highly political. While there is little doubt about the legality and principles of the war
crimes decisions emerging after the Second World War, a great deal of controversy arose
over suggestions of war crimes guilt appertaining to American personnel connected with
the Vietnam war, and Pakistani soldiers involved in the Bangladesh war of 1971. The
Eichmann case, as mentioned above, applied universality principle.

The International Law Commission adopted a Draft Code of Crimes against the Peace
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and Security of Mankind in 1996. Article 8 provides that each state party shall take such
measures as may be necessary to establish its jurisdiction over the crimes laid down in
the Draft, while article 9 provides that a state in whose territory an individual alleged to
have committed a crime against the peace and security of mankind is present shall either
extradite or prosecute that individual. The Commentary to this article declares that the
national courts of states parties would be entitled to exercise the 'broadest possible
jurisdiction' over the crimes 'under the principle of universal jurisdiction'. The Crimes
against the Peace and Security of Mankind, for which there is individual responsibility,
comprise aggression (article 16);genocide (article 17); crimes against humanity (article
18); crimes against UN and associated personnel (article 19); and war crimes (article 20).

The fact that a particular activity may be seen as an international crime does not of itself
establish universal jurisdiction and state practice does not appear to have moved beyond
war crimes, crimes against peace and crimes against humanity in terms of permitting the
exercise of such jurisdiction. In particular, references made to, for example, apartheid,
mercenaries and environmental offences in the 1991 Draft but omitted in the Draft Code
adopted in 1996 must be taken as de lege feuenda.

According to Brownlie ‘beyond these clear cases, public policy is less useful as to extend
universal jurisdiction. For example the there are no examples of prosecutions for the crime of
aggression under universal jurisdiction, but given the relatively recent formulation of an agreed
definition of the crime in international law this is not surprising. At the same time, however, the
intense political implications of the charge of aggression may also explain the unwillingness of
states to attempt prosecutions on the basis of universal jurisdiction. For now, therefore, it is
questionable as to whether aggression can be considered a crime of universal jurisdiction. The
better view may be that it is not. Thus, notwithstanding the fact that the ‘moral’ justification for
universal jurisdiction has dominated discussion of this subject, it does not explain the reality of
universal jurisdiction, which is often influenced—sometimes decisively—by political
considerations. It seems that attempting to derive a coherent theory for the extension of
universal jurisdiction with respect to some crimes but not others may be to overstate the
situation: rather, it may simply be that such jurisdiction is extended on a case-by-case basis in
customary international law, with the notion of an attack upon the international order being a
necessary but not sufficient condition.’

Treaties providing Quasi Universal Jurisdiction

In addition to the accepted universal jurisdiction to apprehend and try pirates and war
criminals, there are a number of treaties which provide for the suppression by the
international community of various activities, ranging from the destruction of submarine
cables to drug trafficking and slavery.

These treaties provide for the exercise of state jurisdiction but not for universal
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jurisdiction. Some conventions establish what might be termed a quasi-universal

jurisdiction in providing for the exercise of jurisdiction upon a variety of bases by as
wide a group of states parties as possible coupled with an obligation for states parties to
establish such jurisdiction in domestic law.

In many instances the offence involved will constitute jus cogens. The view is sometimes
put forward that where a norm of jus cogens exists, particularly where the offence is
regarded as especially serious, universal jurisdiction as such may be created. More
correct is the approach that in such circumstances international law recognises that
domestic legal orders may validly establish and exercise jurisdiction over the alleged
offenders. Such circumstances thus include the presence of the accused in the state
concerned and in this way may be differentiated from universal jurisdiction as such,
where, for example, a pirate may be apprehended on the high seas and then prosecuted in
the state. Therefore, the type of jurisdiction at issue in such circumstances cannot truly be
described as universal, but rather as quasi-universal. Judges Higgins, Kooijmans and
Buergenthal in their Joint Separate Opinion in Coizgo v. Belgium referred to this situation
rather as an 'obligatory territorial jurisdiction over persons' or 'the jurisdiction to establish
a territorial jurisdiction over persons for extraterritorial events' rather than as true
universal jurisdiction.'

While the vast majority of domestic legal orders have adhered to this approach, one or
two states have adopted legislation authorising domestic courts to prosecute certain
crimes (essentially war crimes and crimes against humanity) not only where, in the case
of crimes committed abroad, neither the perpetrators nor the victims are nationals, but
also where the alleged offender is not within the jurisdiction.'

There are a number of treaties that follow the quasi-universal model, that is providing for
certain defined offences to be made criminal offences within the domestic orders of states
parties; accepting an obligation to arrest alleged offenders found on the national territory
and then either extraditing or prosecuting those persons on the basis of a number of stated
jurisdictional grounds, ranging from territoriality to nationality and passive personality
grounds (aut dedere aut iudicare). Such treaties normally also provide for mutual
assistance and for the offences in question to be deemed to be included as extraditable
offences in any extradition treaty concluded between parties. The agreements in question
include, for example, the UN Torture Convention, 1984 and treaties relating to hostage- taking,
currency counterfeiting, hijacking and drug trafficking. Such treaties are then normally
implemented nationally.

Examples of treaties:

 The Convention against Torture,1984 provides that each state party shall ensure that all
acts of torture are offences under domestic criminal law and shall take such measures as
may be necessary to establish its jurisdiction over torture offences where committed in
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any territory under its jurisdiction or on board a ship or aircraft registered in the state
concerned or when the alleged offender is a national or when the victim is a national if
that state considers it appropriate. Further, each state party agrees to either extradite or
prosecute alleged offender while agreeing that the offences constitute extraditable
offences within the context of extradition agreements concluded between states parties.
This Convention was the subject of consideration in Exparte Pinochet (No.3), where the
majority of the House of Lords held that torture committed outside the UK was not a
crime punishable under UIZ law until the provisions of the Convention against Torture
were implemented by s. 134 of the Criminal Justice Act 1988. Lord Millett, however,
took the view that torture was a crime under customary international law with universal
jurisdiction and that since customary international law was part of the common law,
English courts 'have and always have had extraterritorial criminal jurisdiction in respect
of universal jurisdiction under customary international law'.

 The International Convention against the Taking of Hostages, 1979 came into force in
1983 and, requires each state party to make the offence punishable under national law,
and provides that states parties must either extradite or prosecute an alleged offender
found on their territory and incorporate the offence of hostage-taking into existing and
future extradition treaties. The grounds upon which a state party may exercise jurisdiction
are laid down in article and cover offences committed in its territory or on board a ship or
aircraft registered in that state; by any of its nationals, or if that state considers it
appropriate, by stateless persons having their habitual residence in its territory; in order to
compel that state to do or abstain from doing any act; or with respect to a hostage who is
a national of that state, if that state considers it appropriate.

 As far as the hijacking of and other unlawful acts connected with aircraft is concerned,
the leading treaties are the Tokyo Convention on Offences and Certain Other Acts
Committed on Board Aircraft, 1963, the Hague Convention for the Suppression of
Unlawful Seizure ofhircraft, 1970 and the Montreal Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation, 1971. The latter two instruments
arose as a result of the wave of aircraft hijacking and attacks upon civilian planes that
took place in the late 1960s, and tried to deal with the problem of how to apprehend and
punish the perpetrators of such deeds.
The Tokyo Convention applies to both general offences and acts which, whether or not
they are offences, may or do jeopardise the safety of the aircraft or of persons or property
therein or which jeopardise good order and discipline on board. It provides for the
jurisdiction of the contracting state over aircraft registered therein while the aircraft is in
flight, or on the surface of the high seas or on any other area outside the territory of any
state. Contracting states are called upon to take the necessary measures to establish
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jurisdiction by municipal law over such aircraft in such circumstances. In addition, the
Convention permits interference with an aircraft in flight in order to establish criminal
jurisdiction over an offence committed on board in certain specific circumstances by
contracting states not being the state of registration. The circumstances specified are
where the offence has effect on the territory of such state; has been committed by or
against a national or permanent resident of such state; is against the security of such state;
consists of a breach of any rules or regulations relating to the flight or manoeuvre of
aircraft in force in such state or where the exercise of jurisdiction is necessary to ensure
the observance of any obligation of such state under a multilateral international
agreement. No obligation to extradite is provided for.
The Hague Convention provides that any person who, on board an aircraft in flight, is
involved in the unlawful seizure of that aircraft (or attempts the same), consists an
offence which contracting states undertake to make punishable by severe penalties. Each
contracting state is to take such measures as may be necessary to establish its jurisdiction
over the offence or related acts of violence when the offence is committed on board an
aircraft registered in that state, when the aircraft in question lands in its territory with the
alleged offender still on board or when the offence is committed on board an aircraft
leased without a crew to a lessee who has his principal place of business, or if the lessee
has no such place of business, his permanent residence, in that state. The Convention also
provides that contracting states in the territory of which an alleged offender is found must
either extradite or prosecute him.
The Montreal Convention contains similar rules as to jurisdiction and extradition as the
Hague Convention but is aimed at controlling and punishing attacks and sabotage against
civil aircraft in flight and on the ground rather than dealing with hijacking directly. A
Protocol to the Montreal Convention was signed in 1988. This provides for the
suppression of unlawful acts of violence at airports serving international civil aviation
which cause or are likely to cause serious injury, and acts of violence which destroy or
seriously damage the facilities of an airport serving international civil aviation i'nterna-
destroy or seriously damage the facilities of an airport serving international civil aviation
or aircraft not in service located thereon or disrupt the service of the airport.
Conclusion from all above convention on hijacking- The wide range of jurisdictional
bases is to be noted, although universality as such is not included. Nevertheless,
condemnation of this form of activity is widespread and it is likely that hijacking has
become an international crime of virtually universal jurisdiction in practice. Further, it is
possible that international terrorism may in time be regarded as a crime of universal
jurisdiction.

If states fail to fulfil or respect the obligations in the above conventions, the possible
solutions may be to impose sanctions on arrant states, bilateral agreements, other
self help measures eg In 1973, for example, Israeli warplanes intercepted a civil
aircraft in Lebanese airspace in an unsuccessful attempt to apprehend a guerrilla
leader held responsible for the killing of civilians aboard hijacked aircraft. Israel
was condemned for this by the UN Security Council and the International Civil
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Aviation Organisation. On the night of 10-11 October 1985, an Egyptian civil

aircraft carrying the hijackers of the Italian cruise ship Achille Lauro was
intercepted over the Mediterranean Sea by US Navy fighters and compelled to
land in Sicily. The US justified its action generally by reference to the need to
combat international terrorism. Nothing in these Conventions, it is suggested,
would appear to justify an interception of a civilian aircraft over the high seas or
over any area other than the territory of the intercepting state and for specified
reasons. The apprehension of terrorists is to be encouraged, but the means must be
legitimate. Nevertheless, there may be circumstances where an action taken by a
state as a consequence of hostile hijacking or terrorist operations would be
justifiable in the context of self-defence.

Illegal apprehension of suspects and the exercise of jurisdiction

It would appear that unlawful apprehension of a suspect by state agents acting in the
territory of another state is not a bar to the exercise of jurisdiction. Such apprehension
would, of course, constitute a breach of international law and the norm of non
intervention involving state responsibility unless the circumstances were such that the
right of self- defence could be pleaded. Still, in most cases a distinction is clearly drawn
between the apprehension and jurisdiction to prosecute and the illegality of apprehension
has not affected the validity of prosecution.

Cases:

In US vs Alvarez –Machain, the case involved abduction from a country with which there
was an extradition treaty. The Court noted that where the terms of an extradition treaty in
force between the states concerned prohibited abduction then jurisdiction could not be
exercised. Otherwise the rule in Kerwould apply and the prosecution would proceed. This
applied even though the US government had been involved in the abduction and the state
from whose territory the apprehension took place had protested.

In the UK, it was noted that once a person was in lawful custody within the jurisdiction,
the court had no power to inquire into the circumstances in which he had been brought
into the jurisdiction. However, in R v. Horseferry Road Magistrates' Court, exparte
Bennett, the House of Lords declared that where an extradition treaty existed with the
relevant country under which the accused could have been returned, 'our courts will
refuse to try him if he has been forcibly brought within our jurisdiction in disregard of
those procedures by a process to which our own police, prosecuting or other executive
authorities have been a knowing party'.

The approach in this case was extended in R v. Latif to cover entrapment. However,
where an accused was taking legal action to quash a decision to proceed with an
extradition request, the fact that he had been lured into the jurisdiction was not sufficient
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to vitiate the proceedings since safeguards as to due process existed in the light of the
Home Secretary's discretion and under the law of the state to whom he was to be
extradited. Further, in Exparte Wesqallen, the High Court took the view that where there
had been no illegality, abuse of power or violation of international law or of the domestic
law of the foreign states involved, the decisions under challenge could not be impugned
nor the subsequent criminal proceedings be vitiated.

the US Alien Tort Claims Act

Under this Act, the First Congress established original district court jurisdiction over all
causes where an alien sues for a tort 'committed in violation of the law of nations or a
treaty of the United States: In Filartiga v Pene Irala, the US Court of Appeals for the
Second Circuit interpreted this provision to permit jurisdiction over a private tort action
by a Paraguayan national against a Paraguayan police official for acts of torture
perpetrated in that state, it being held that torture by a state official constituted a violation
of international law. This amounted to an important move in the attempt to exercise
jurisdiction in the realm of international human rights violations, although one clearly
based upon a domestic statute permitting such court competence. The relevant issues in
such actions would thus depend upon the definition of the 'law of nations' in particular
cases Alien Tort Claims Act does not constitute an exception to the principle of sovereign
immunity so that a foreign state could not be sued.