SUBJECTS

OF
PUBLIC INTERNATIONAL LAW II:
State Jurisdiction
a) Introduction
b) The Concept of International Legal Personality
c) State
i. Statehood: territory, population, effective government
ii. Recognition
iii. Succession
iv. Jurisdiction (and jurisdictional immunities)
d) Inter-governmental organizations - Three examples
i. UN
ii. EU: Law of the EU
ii. Council of Europe: International Human Rights Law
e) Individuals
i. International rights: International Human Rights Law
ii .International obligations & responsibility: International Humanitarian Law & International Criminal Law

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 Reminder: Sovereignty
(external sovereignty = independence of States)

Definition & content:

Sovereignty is the power possessed by states and the right or ability to exercise it.
Sovereign equality of states (UN Charter Art. 2(1) + 1970 Declaration 6)
Each state, as a full subject of the international legal order, is endowed with formal equality before the law = Rule of law

Limits on sovereignty:

1. prohibition of intervention in domestic affairs (UN Charter Art. 2(7) + 1970 Declaration 3)
2. prohibition of use of force (UN Charter Art. 2(4), 2(3) + 1970 Declaration 1, 2)
3. international treaty obligations (self-imposed restrictions and limits è UN Charter Art. 2(2) + 1970 Declaration 7)
4. peremptory norms (jus cogens)
5. human rights
6. Par in parem non habet imperium = equals have no sovereignty over one another.
Par in parem non habet jurisdictionem= equals have no jurisdiction over one another.

Cassese, p. 98: Limitations imposed on State sovereignty are the natural legal consequences of the obligation
to respect the sovereignty of other States.

Island of Palmas case, RIAA II 829, 1928 at 838 (sole arbitrator Max Huber): “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
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way as to make it the point of departure in settling most questions that concern international relations.”
 Jurisdiction
Definition:
“Jurisdiction concerns the power of the state under international law to regulate or otherwise impact upon
people, property and circumstances and reflects the basic principles of state sovereignty, equality of states
and non-interference in domestic affairs. Jurisdiction is a central feature of state sovereignty, for it is an
exercise of authority which may alter or create or terminate legal relationships and obligations. It may be
achieved by means of legislative, executive or judicial action. In each case, the recognised authorities of the
state as determined by the legal system of that state perform certain functions permitted them which affect
the life around them in various ways.” (Shaw, p. 483)

Content:
1. Jurisdiction to legislate: to make rules binding on persons, transactions, and relationships that have some
connection with the State.
2. Jurisdiction to adjudicate: power of a tribunal to decide a particular dispute or to hear a certain case.
3. Jurisdiction to enforce: power to enforce its rules and judgements.

Limits:
1. State immunity (state sovereignty) and immunities of IOs
2. Diplomatic and consular privileges and immunities
3. Extra-territorial jurisdiction of other states (e.g. artificial islands)
4. International treaty obligations (self-imposed restrictions and limits)
e.g. capitulations, Status of Forces Agreements (SOFA) (i.e. criminal prosecution of service members and
their dependents of the military contingents stationed in other countries); leases (e.g. Hong Kong, Panama
Canal Zone, Guantanamo Bay*)
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 Principles of Jurisdiction under PIL
RULE: States, in principle, have exclusive and unlimited jurisdiction over their territories and peoples.

1. TERRITORY: Principle of territoriality

- rule: territorial jurisdiction (objective territoriality & subjective territoriality)
- exception: extra-territorial jurisdiction
(e.g. effective control, diplomatic personnel, protection, universality, flag-state…)

2. PEOPLE: Principle of nationality

- personal jurisdiction (active personality & passive personality)

3. GOVERNMENT: Principle of Protection

- protective jurisdiction

4. Territories outside the jurisdiction of any single state è principle of universality

è jurisdiction of flag-state

5. Concurrent (overlapping) jurisdiction (yarışan yetki): when two or more states are entitled to exercise
legislative (or, rarely, enforcement) jurisdiction

★ Treaty based extensions of jurisdiction: Aut dedere, aut judicare (prosecute or extradite)
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1. PRINCIPLE of TERRITORIALITY

Rules:
1. Sovereignty & territory goes hand in hand.
2. Every State can exercise jurisdiction over persons/property/transactions/events occurring within its
territory.
3. Territory = land, territorial sea, national airspace.

1.1. Objective territoriality

(where the consequences of the behaviour is felt: a state will have jurisdiction over all
offences completed over its territory, even if the act originates from another territory)

e.g. Lockerbie case: An American passenger aircraft (Pan Am Flight 103) took off from London on it s
flight to New York, crashing in Scotland following the explosion of a bomb on board on 21/12/1988=
jurisdiction of the UK (but the actual trial of the Libyan defendants took place in the Netherlands,
based on the Agreement concerning a Scottish Trial in the Netherlands, 18/9/1998, UKTS No.43,1999)

1.2. Subjective territoriality

(where the behaviour is originated: a state will have jurisdiction over offences originated in
its territory, but has been completed elsewhere.)

+ effects principle: the acts occurs exclusively outside the State’s territory, but the effects are
felt at another State. (e.g. US antitrust law, EC Woodpulp case)
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The Case of the S.S. Lotus (France v. Turkey), PCIJ, 7 Sept. 1927
è Lotus principle, Mahmut Esat “BOZKOURT”

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Facts: A collision occurred on the high seas (5 nm north of Greek Lesbos Island
(Midilli)) between a French vessel – Lotus – and a Turkish vessel – Boz-Kourt. The Boz-
Kourt sank and 8 Turkish nationals were died. The vessel Lotus (including its officer
Monsieur Demons and crew) and 10 survivors of the Boz-Kourt (including its captain
Hassan Bey) were taken to İstanbul; both Demons and Hassan arrested, and later Demons
was sentenced to 80 days of prison for negligence. The Turkish Court held that Hassan had
the primary responsibility for the collision.

The French government protested the situation, demanding the release of Demons or the
transfer of his case to the French Courts. France argued that the Turkish authorities had no
jurisdiction with regard to this collision which occurred on the high seas and no power to
arrest the French nationals on a vessel carrying the French flag.

Turkey and France agreed to submit the dispute to the PCIJ. Question: “Has Turkey,
contrary to Article 15 (on the islands) of the Convention of Lausanne of July 24th, 1923,
respecting conditions of residence and business and jurisdiction, acted in conflict with the
principles of international law -and if so, what principles- by instituting, following the
collision which occurred on August 2nd, 1926, on the high seas between the French
steamer Lotus and the Turkish steamer Boz-Kourt and upon the arriva1 of the French
steamer at Constantinople-as well as against the captain of the Turkish steamship-joint
criminal proceedings in pursuance of Turkish law against M. Demons, officer of the watch
on board the Lotus at the time of the collision, in consequence of the loss of the Boz-Kourt
having involved the death of eight Turkish sailors
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and passengers?”
p. 18-20: “International law governs relations between independent States. The rules of law binding upon States
therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing
principles of law and established in order to regulate the relations between these co-existing independent communities
or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be
presumed.
Now the first and foremost restriction imposed by international law upon a State is that – failing the existence of a
permissive rule to the contrary – it may not exercise its power in any form in the territory of another State. In this sense
jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive
rule derived from international custom or from a convention.”
It does not, however, follow 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. Such a view would only be tenable if international law contained a general
prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and
acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain
specific cases. But this is certainly not the case under international law as it stands at present. 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 and acts outside their territory, it 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 discretion left to States by international law explains the great variety of rules which they have been able to adopt
without objections or complaints on the part of other States …In these circumstances all that can be required of a State
is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title
to exercise jurisdiction rests in its sovereignty.”
It follows from the foregoing that the contention of the French Government to the effect that Turkey must in each case
be able to cite a rule of international law authorizing her to exercise jurisdiction, is opposed to the generally accepted
international law to which Article 15 of the Convention of Lausanne refers. Having regard to the terms of Article 15
and to the construction which the Court has just placed upon it, this contention would apply in regard to civil as well
as to criminal cases, and would be applicable on conditions of absolute reciprocity as between Turkey and the other
contracting Parties; in practice, it would therefore in many cases result in paralyzing the action of the courts, owing to
the impossibility of citing a universally accepted rule on which to support the exercise of their jurisdiction.”
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p. 25: “A corollary of the principle of the freedom of the seas is that a ship on the high seas is assimilated to the
territory of the State the flag of which it flies, for, just as in its own territory, that State exercises its authority upon it,
and no other State may do so. Al1 that can be said is that by virtue of the principle of the freedom of the seas, a ship
is placed in the same position as national territory ; but there is nothing to support the claim according to which the
rights of the State under whose flag the vessel sails may go farther than the rights which it exercises within its territory
properly so called. It follows that what occurs on board a vessel on the high seas must be regarded as if it occurred on
the territory of the State whose flag the ship flies. If, therefore, a guilty act committed on the high seas produces its
effects on a vessel flying another flag or in foreign territory, the same principles must be applied as if the territories of
two different States were concerned, and the conclusion must therefore be drawn that there is no rule of international
law prohibiting the State to which the ship on which the effects of the offence have taken place belongs, from
regarding the offence as having been committed in its territory and prosecuting, accordingly, the delinquent.

This conclusion could only be overcome if it were shown that there was a rule of customary international law which,
going further than the principle stated above, established the exclusive jurisdiction of the State whose flag was flown.
… In the Court’s opinion, the existence of such a rule has not been conclusively proved. ”

p. 30: “The conclusion at which the Court has therefore arrived is that there is no rule of international law in regard to
collision cases to the effect that criminal proceedings are exclusively within the jurisdiction of the State whose flag is
flown.
This conclusion moreover is easily explained if the manner in which the collision brings the jurisdiction of two
different countries into play be considered.
The offence for which Lieutenant Demons appears to have been prosecuted was an act – of negligence or imprudence
– having its origin on board the Lotus, whilst its effects made themselves felt on board the Boz-Kourt. These two
elements are, legally, entirely inseparable, so much so that their separation renders the offence non-existent… It is only
natural that each should be able to exercise jurisdiction and to do so in respect of the incident as a whole. It is therefore
a case of concurrent jurisdiction.” = objective territoriality

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BUT, later a rule on the issue has been drafted as treaty law:

1958 High Seas Convention Art. 11

&
1982 UNCLOS Art. 97:

Penal jurisdiction in matters of collision or any other incident of navigation

1. In the event of a collision or of any other incident of navigation concerning a ship on

the high seas, involving the penal or disciplinary responsibility of the master or of any
other person in the service of the ship, no penal or disciplinary proceedings may be
instituted against such persons except before the judicial or administrative authorities
either of the flag State or of the State of which such person is a national.
2. In disciplinary matters, the State which has issued a master’s certificate or a certificate
of competence or licence shall alone be competent, after due legal process, to
pronounce the withdrawal of such certificates, even if the holder is not a national of
the State which issued them.
3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered
by any authorities other than those of the flag State.

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2. PRINCIPLE OF NATIONALITY (Aybay, p. 214-229)

2.1. Active Personality Principle (nationality of the offender) è

“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. A state may prosecute its
nationals for crimes committed anywhere in the world (active nationality principle). This rule is universally accepted, and
continental countries make extensive use of it.” (Akehurst’s, p. 111)

In the case of dual nationality, both states would be entitled to claim their authority. But practically there will usually
be a dominant nationality whose state will be keener to claim authority than the other.

è nationality of real persons:

jus soli (place of birth), jus sanguinis (nationality of parents), naturalization (telsik)

è nationality of corporations:
Barcelona Traction, Light and Power Company, Limited, 2nd phase, Judgment, ICJ 1970, p. 3: (Place of incorporation / place
of seat or management)

è nationality of ships and aircrafts: place of registration

e.g. US Foreign Corrupt Practices Act (15 USC, para 78dd-1(a)): creates a civil action against individuals or companies who
bribe foreign government officials in pursuance of business contracts overseas. It is also a crime for a US citizen to travel to a
foreign country to engage in sex with minors. (18 USC, para. 2423)

*** AY m. 38/son: (Değişik: 7.5.2004-5170/5 md.) Uluslararası Ceza Divanına taraf olmanın gerektirdiği yükümlülükler
hariç olmak üzere vatandaş, suç sebebiyle yabancı bir ülkeye verilemez.

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Nottebohm case (Liechtenstein v. Guatemala), 2nd phase, Judgment, ICJ Rep. 1955, p.23: “The
character thus recognized on the international level as pertaining to nationality is in no way inconsistent with
the fact that international law leaves it to each State to lay down the rules governing the grant of its own
nationality. The reason for this is that the diversity of demographic conditions has thus far made it impossible
for any general agreement to be reached on the rules relating to nationality, although the latter by its very
nature affects international relations. It has been considered that the best way of making such rules accord
with the varying demographic conditions in different countries is to leave the fixing of such rules to the
competence of each State. On the other hand, a State cannot claim that the rules it has thus laid down are
entitled to recognition by another State unless it has acted in conformity with this general aim of making the
legal bond of nationality accord with the individual's genuine connection with the State which assumes the
defence of its citizens by means of protection as against other States.
…
According to the practice of States, to arbitral and judicial decisions and to the opinions of writers,
nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence,
interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute
the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or
as the result of an act of the authorities, is in fact more closely connected with the population of the State
conferring nationality than with that of any other State. Conferred by a State, it only entitles that State to
exercise protection vis-à-vis another State, if it constitutes a translation into juridical terms of the individual's
connection with the State which has made him its national.
Diplomatic protection and protection by means of international judicial proceedings constitute measures for
the defence of the rights of the State. As the Permanent Court of International Justice has said and has
repeated, "by taking up the case of one of its subjects and by resorting to diplomatic action or international
judicial proceedings on his behalf, a State is in reality asserting its own rights -its right to ensure, in the
person of its subjects, respect for the rules of international
12 law" (P.C.I. J., Series A, No. 2, p. 12, and Series
A/B, Nos. 20-21, p. 17).”
2.2. Principle of Passive Personality (nationality of the victim)

A State can prosecute anyone who harms its nationals, no matter where this occurs.

Traditionally, common law countries opposed to this, while Turkey (e.g. LOTUS –but in
combination with the objective territoriality principle), Mexico, Brazil and Italy are
supportive of this principle. Today, due to international terrorism, the US courts also
have the tendency to extend their jurisdiction based on the passive personality principle,
but generally in combination with the other principles as well.

The US Restatement (Third), para. 402: “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.”

Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), ICJ Rep. 2002,
p. 3, Joint separate opinion of Judges Higgins, Kooijmans, and Buergenthal at p.11: “passive
personality jurisdiction, for so long regarded as controversial… today meets with
relatively little opposition, at least so far as a particular category of offences is
concerned.”

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3. PRINCIPLE OF PROTECTION
(extra-territorial jurisdiction) (protection of the government, national interests, officials abroad etc.)

e.g. esp. in the US è espionage, counterfeiting of currency, terrorism, drug trafficking, ‘vital
interests’ of concern…

e.g. 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected
Persons, including Diplomatic Agents Art. 3:
1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the
crimes set forth in article 2 in the following cases:
a. When the crime is committed in the territory of that State or on board a ship or aircraft registered in
that State;
b. When the alleged offender is a national of that State;
c. When the crime is committed against an internationally protected person as defined in article 1 who
enjoys his status as such by virtue of functions which he exercises on behalf of that State.
2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction
over these crimes in cases where the alleged offender is present in its territory and it does not extradite
him pursuant to article 8 to any of the States mentioned in paragraph 1 of this article.
3.This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.

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4. Principle of Universality

Piracy (hostis humanis generi (enemies of all humankind)), gross violations of HR

e.g. 1789 Alien Tort Claims Act (but started to be applied by the Courts as of 1980),
1991 Torture Victim Protection Act, 2007 Genocide Accountability Act of the US
Other examples include Belgium, Finland etc.

***CIVIL ACTION AGAINST INDIVIDUALS:

Filártiga v. Peña-Irala, 630 F.2d 876 (2nd Circuit of Appeals, 30 Jun 1980): A landmark case in the US and international
law. It set the precedent for US federal courts to punish non-Americans for tortious acts committed outside the US that were
in violation of the law of nations or any treaties to which the US is a party. It thus extends the jurisdiction of the US courts to
tortious acts committed around the world. A crime (torture and murder) committed by a Paraguayan (police chief of Paraguay
Peña-Irala) against a Paraguayan (Filártiga) in Paraguay, but the suspect and the father of the victim were in the US at the
time the case was lodged before the US courts!!! No criminal proceedings in absentia.
US courts eventually ruled in favor of the Filártigas, awarding them roughly $10.4 million, but Peña-Irala was already
deported from the US. Torture was clearly a violation of the law of nations, and the US had jurisdiction over the case since
the claim was lodged when both parties were inside the US. Additionally, Peña had sought to dismiss the case based on forum
non conveniens, arguing that Paraguay was a more convenient location for the trial, but he did not succeed.

In Kadic v Karadzić (1995), groups of Bosnian Croats and Muslims commenced proceedings against Serbia for war crimes
in an American domestic court, with Radovan Karadzić being in the US at the time. Karadzić was found not to be immune.
Following the Karadzić judgment, it was ruled in Sosa v. Alvarez-Machain 542 U.S. 692 (2004): Alien Tort Claims Act only
covers the most serious violations of the most accepted human rights. (depriving someone’s (Mexican drug trader) liberty
illegally for a day is not serious enough to be considered as a customary intl law) è again resident in the US.

This was further limited in Kiobel v. Royal Dutch Petroleum Co., where it was affirmed that there was a strong
presumption against extraterritoriality, causes of action must also apply to the American domestic Alien Torts Act and not to
acts committed outside the United States. The Court concluded 15 that nothing in the Statute’s text was sufficient to overcome
the assumption against extraterritoriality.
***CRIMINAL JURISDICTION AGAINST INDIVIDUALS:

The US Restatement (Third), para. 404): “[a] state has jurisdiction to define and prescribe punishment
for certain offenses recognized by the community of nations as of universal concern, such as piracy,
slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of
terrorism.”

“The Restatement (Third) views these offences as being subject to universal jurisdiction as a matter of
customary law. Additional offences may be subject to universal jurisdiction on the basis of
international agreements, such as, for example, the 1973 International Convention on the Suppression
and Punishment of the Crime of ‘Apartheid’ or the 1984 Convention against Torture and other Cruel,
Inhuman and Degrading Treatment or Punishment. But such agreements only apply between the
states that are parties to them, unless it can be shown that customary law has also come to accept these
offences as subject to universal jurisdiction.
… apart from piracy, the slave trade, war crimes and crimes against humanity, other crimes of
international concern established by more recent conventions, extending to the hijacking of aircraft,
sabotage, apartheid, crimes against internationally protected persons, terrorism, hostage-taking, drug
trafficking, counterfeiting of currency and others, raise perplexing issues concerning the legal basis of
the alleged universal jurisdiction. Such conventions create an obligation to prosecute or to extradite the
accused (aut dedere aut judicare) and thereby confer jurisdiction under the provisions of the relevant
treaty. But how can such treaties, which are binding only among the parties to them, by themselves
create true universal jurisdiction in relation to non-parties?” (Akehurst’s, p. 112-113)

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5. Treaty based extensions of jurisdiction: Aut dedere, aut judicare (prosecute or extradite)
e.g 1999 International Convention for the Suppression of the Financing of Terrorism Art. 10: “The State Party in
the territory of which the alleged offender is present shall, in cases to which article 7 applies, if it does not extradite
that person, be obliged, without exception whatsoever and whether or not the offence was committed in its territory,
to submit the case without undue delay to its competent authorities for the purpose of prosecution, through
proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner
as in the case of any other offence of a grave nature under the law of that State….”
1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation Art. 7: “The
Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be
obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the
case to its competent authorities for the purpose of prosecution. Those authorities shall take their decision in the
same manner as in the case of any ordinary offence of a serious nature under the law of that State.”
1979 International Convention against Taking of Hostages Art. 5: “
1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over any of the offences
set forth in article 1 which are committed:
a. in its territory or on board a ship or aircraft registered in that State; (TERRITORIALITY)
b. by any of its nationals or, if that State considers it appropriate, by those stateless persons who have their habitual
residence in its territory; (NATIONALITY)
c. in order to compel that State to do or abstain from doing any act; or
d. with respect to a hostage who is a national of that State, if that State considers it appropriate. (PASSIVE
PERSONALITY)
2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over the
offences set forth in article 1 in cases where the alleged offender is present in its territory and it does not extradite
him to any of the States mentioned in paragraph 1 of this article.
3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.
Art. 8: “1. The State Party in the territory of which the alleged offender is found shall, if it does not extradite him,
be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit
the case to its competent authorities for the purpose of prosecution, through proceedings in accordance with the
laws of that State. Those authorities shall take their decision in the same manner as in the case of any ordinary
offence of a grave nature under the law of that State…”

è Extradition (to another country) (or “surrender”

17 to an international criminal tribunal),
mutual legal assistance treaties (MLATs) and cooperation