328

10
JURISDICTION
Vaughan Lowe

SUMMARY
",lts
-/'
Each State has the right to regulate its own public order, and to that end it is entitled to
legislate for everyone within its territory. But States are also entitled to legislate for their
nationals, and some actions extend over national boundaries; and there are accordingly
situations in which two or more States may seek to apply their laws to the same conduct.
This chapter is concerned with the principles of international law that regulate the
right of States to apply their laws to conduct, and with the resolution of disputes
arising from overlapping jurisdictional claims, and also with the problems of enforcing
national laws.

I. INTRODUCTION

A. THE MEANING OF 'JURISDICTION'

. -
'h;rrisdiction' is the term that describes the limits of the legal competence 0~.QL
.,. '. ,.~-....::.--
oili.:er regulatory authority (such as the European Community) to make, apply, and
enforce-rilIes of conduct upon persons. It 'concerns essentially the extent of each
state's right to regulate condl,lCCOI.:thg ~Qnsequences of.eY~!l:~s'.l
States regulate conduct in this sense in various ways, which may involve any of
the branches of government. Thus, the Legislature may lay down rules by statute, or
the Executive may do so by order. Laws on the provocation of religious hatred, and
statutory instruments forbidding the export of certain goods to certain countries,
are obvious examples. Some laws are less obviously prescriptive, but are nonetheless
equally part of the structure of the social order: for example, laws regarding the
qualifications of the acquisition of a State's nationality, or describing the conditions
upon which a person will be liable to pay taxes to the State. States also regulate

1 Oppenheim's International Law, 1992, p 456.

 330 VAUGHAN LOWE
conduct by means of the decisions of their courts, which may order litigating parties
to do or abstain from doing certain things. So, too, may the State's administrative
bodies, which may apply rules concerning, for example, the issuance of licences to
export goods to certain countries. The police, and other law-enforcement agencies,
are also involved, in the arrest and detention of persons, and the seizure of goods.
All of these activities are in principle regulated by the rules of international law
concerning jurisdiction.
T!?-e term 'jurisdiction' is also commonly used in international law to describe the
scope of the right of an international tribunal, such as the InternationarCourt of
justice or the International Criminal Court, to adjudicate upOIf_~ase~~d ·-t~ make
-,iidersln:- respect of the parties to them. In abstra~t-t;r;;~~-th~·J;ri~diction of States
-and-the"jurisdiction of tribunals areb~th instances of the concept of the scope of the
powers of a legal institution; but it is traditional, and practically useful to distinguish
between them and to treat them separately. The jurisdiction of international tribunals
is, accordingly, not treated in this chapter.
B. THE SIGNIFICANCE OF THE PRINCIPLES OF JURISDICTION
_ The lc:.gal rules and principles governing jurisdiction have a fundamental importance
in international relations, becaus~ ..th.~y __are co~_~...!~ the allocation between
'States, and other entities such as the European U~, 5~f.~<?~~ence to regUIat-~ 4@.Y
-n.fe"·~--tha{ is, the competence to secure the differences that make each State a distinct
society. Inasmuch as they determine the reach of a State's laws, they may be said
to determine what the boundaries of that State's particular public order are. For
instance, the rejection by western States of the fatwah issued against Salman Rushdie
was, in essence, a denial that the jurisdiction of the Iranian authorities extended so far
as to regulate conduct in the United Kingdom. 2 There are many other examples of
contested jurisdictional claims, perhaps less spectacular but affecting a much wider
range of interests. For example, the United States has at various times enacted laws
that purport to forbid foreign b~;inesses, based outside the United States, to trade
with certain States, such as the former Soviet Union, Iran, ~d C~~Tho~e liws-have
iffiposed significant economic costs and disadvantages on non-Us co~p~ie;~~d
they raise the question of the propriety-indeed, thelegalliY=oroneStite pur-
porting to forbid persons in another State to do things that are perfectly lawful in the
State where those persons are located.
Similarly, as the principles governing jurisdiction define the limits of the State's
coercive powers, they effect one of the most important delineations of the different
2 It appears that it was technically a religious authority, rather than what in western terms would
be thought of as a typically 'governmental' authority, that issued the fatwah. This raises the interesting
question of the limits of the notion of 'the State' for the purposes of State responsibility. On this question
see Part V of this book and see United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports
1980,p 3.
JURISDICTION 331
societies into which the world is divided. It is these principles that dictate, for
example, that the British authorities have no right to operate in French territory in
order to regul~te the conduct of asylum-s~ek~rs at Sa~g-;:tte, and that the Scottish
_._ courts have no right to sit in the Netherlan~. It ~~-~~~~~;ry for France -~d ·th~--
y-nited Kingdom to conclude an_ agr~~ all~~g th~~stoms and immigration
~ officers of each to operate ~_.!he._i~r!t9ry ~(t!?-_e_<:l!her in. relation to the Channel
T.YllDd.._and for the Netl}._t:!.r.land~_~4.!heJ!E:~~~~_gdo~_!~ coridiide--an-~g~~ement­
t9_.p~xmit the~tish c.<2.~!_!~~~t at Camp Zeist in th~-Neth~~l~-dst~·h-;;~~the·cases·
~ainst the Libyan nationals accuse9-~f._blQ..wips.lJ.-p_~_y? cie-i9Pl~e iI1:!J?_e._s~es above
Lockerbie in Scotland. 3
. . . - ....... -
~------~----
In view of its significance, it is not surprising that the principles governing juris-
diction have attracted considerable attention from jurists over the years. In fact,
however, international controversy over the limits of jurisdiction, which was intense
in four or five decades after 1945, seems to have abated somewhat during recent years.
Before turning to the examination of those principles in detail, it is necessary to
say a word about the framework within which jurisdictional principles are analysed by
international lawyers.
C. THE DOCTRINAL ANALYSIS OF JURISDICTION
Luris~~~~~.~.'. as a top~c o~~~as a l:ss solid and universal basis than is
often supposed. EnglIsh-language monographs typICally devote a chapter to the topiC,4
as they have done since the late nineteenth century,s continental monographs,
on the other hand, have tended to adopt a rather different approach, regarding
jurisdiction as an aspect of statehood or territo!Y, or the law of the sea or of some
other aspect of international law. There--is, on this continental approach, no com-
prehensive, consolidated statement of all of the principles of jurisdiction. 6 It is notable
that there is, for example, no volume devoted to jurisdiction in Verzijl's great treatise,
International Law in Historical Perspective. That pattern appears to be changing. In
1968 the Council of Europe produced a Model Plan for the Classification of Documents
concerning State Practice in the Field of Public International Law,? which distributed
the treatment of jurisdiction under a number of different headings, including
'Personal Jurisdiction', 'State Territory and Territorial Jurisdiction', and 'Seas, Water-
ways, Ships,' in line with the continental approach. In 1997, that plan was revised,
and jurisdiction now has its own separate chapter in the Model Plan, divided up as
follows:
3 See 117 ILR 664, 666.
4 See, eg, the texts by Oppenheim, 1992; Brownlie, 1998; O'Connell, 1970.
5 See, eg, the texts by Twiss, 1884 and Hall, 1895.
6 See, eg, Verhoeven, 2000.
7 Council of Europe Res (68) 17 of 28 June 1968. This scheme is used to arrange the survey of United
Kingdom Materials on International Law, in each year's British Year Book of International Law.
33 2 VAUGHAN LOWE
JURISDICTION 333

Part eight: jurisdiction of the State or 'adjudicative' or 'curial jurisdiction'. This refers to the right of courts to receive, try,
I. Bases ofjurisdiction and determine cases referred to them. It is doubtful whether it is necessary to separate
A. Territorial principle out this type of jurisdiction. Insofar as parties choose to submit to the jurisdiction of
B. Personal principle a national court, there can be no cause for complaint unless one or more of the parties
is subject to an order made under the law of another State, obliging them not
C. Protective principle
to submit to the foreign court. If such an antisuit order is made, there is a clash of
D. Universality principle
prescriptive jurisdiction, as there is if two or more courts hear the same case and
E. Other bases issue conflicting orders. But all of this can be analysed in terms of prescriptive
II. Types ofjurisdiction and enforcement jurisdiction. It seems unnecessary to introduce a separate category
A. Jurisdiction to prescribe of 'jurisdiction to adjudicate', and that category is not employed in this chapter.
B. Jurisdiction to adjudicate
2. Other jurisdictional issues
C. Jurisdiction to enforce
III. Extra-territorial exercise ofjurisdiCtion The third category in the Council of Europe scheme, 'Extra-territorial exercise of
jurisdiction', is concerned with the exceptional circumstances in which a State is
A. General
entitled to exercise its enforcement jurisdiction (and with it, its legislative juris-
B. Consular jurisdiction
diction) in the territory of another State. A common example in NATO States is
C. Jurisdiction over military personnel abroad the network of arrangements under which troops of one NATO State are stationed
D. Others (artificial islands, terrae nullius, etc.) in another, but subject to the control of their home State authorities, so that, for
Iv. Limitations upon jurisdiction (servitudes, leases, etc.) instance, United States military police will have the right to arrest and imprison
V. Concurrent jurisdiction members of US forces on military bases in the United Kingdom.
The fourth and fifth of the Council of Europe 'Types' are of a rather different kind.
1. Types of jurisdiction The 'Limitations upon jurisdiction' instanced by servitudes and leases are limitations
The first section of the Model Plan, 'Bases of jurisdiction', is concerned with the ambit that arise when a particular piece of territory is 'leased' to another State (as part of
of a States' laws: that is, with its jurisdiction to prescribe rules, or its 'legislative' or Hong Kong was leased by China to the United Kingdom from 1898 to 1997, and as
'prescriptive' jurisdiction, as it is sometimes called. The second section, 'Types the Panama Canal Zone was leased by Panama to the United States from 1903 to
of jurisdiction', somewhat illogically steps up to a higher level of abstraction and 1977), and under the terms of the lease the territorial sovereign permits the lessee
distinguishes between, on the one hand, ~he jurisdiction to prescriQ~~ and, on to exercise exclusive jurisdiction over the area. This is not so much a 'type' of juris-
the other hand, the jurisdiction to enforce theIIk or 'enforcement jurisdiction' as diction as a particular consequence of the temporary transfer or alienation of rights
it is commonly known. Thus, the United Kingdom may enact a law forbidding, say, of sovereignty over areas of State territory; and it will not be further discussed here. 9
murder and make that law applicable to all British citizens wherever in the world they The final category, 'Concurrent jurisdiction', concerns the issues that arise when two
might be. That would fall within the United Kingdom's prescriptive jurisdiction, in or more States are entitled to exercise legislative (or, rarely, enforcement) jurisdiction
accordance with what is called the 'nationality' or 'personal' principle (Section LB in relation to the same factual circumstances.
in the Council of Europe scheme). But if a British citizen were to ~t murder
in, say, BrazQ, the United KingdoJ!! authoritIes would have no rigllt .to~nter Brazil
and arrest the mur~~:r.: The United Kingdom's enforcement
jurisdiction, like that
of every o~,- is in principle limited to its own territory. That is why States II. PRESCRIPTIVE JURISDICTION
'~eed to seek the extradition of persons accused of committing crimes within their
jurisdiction, in circumstances where the accused is living in another State. To whom maya State extend its laws? Who may the State order to do this, or not to
There is another 'Type of jurisdiction' identified in the Council of Europe scheme, do that? Or, to ask a question of a slightly different kind, who may be deemed by
and in similar frameworks adopted elsewhere: 8 that is the 'jurisdiction to adjudicate', a State to be, say, a citizen, or 'married', or 'an infant'? or how far maya State rule that
a particular ceremony counts as a valid wedding, or divorce? what, in other words, are
8 See, eg, the American Law Institute's Restatement of the Law: the Foreign Relations Law of the United
States, 3rd edn (1987); Akehurst, 1972-73, pp 145-217. 9 See further Ch 7 above.
334 VAUGHAN LOWE
the limits of the right of a State to impose legal characterizations upon persons or
events? These are all questions about the reach, the ambit or scope, of a State's laws;
that is, about the limits of its prescriptive or legislative jurisdiction.
Before tur~ing to the principles that explain the bases upon which States are
entitled to exercise prescriptive jurisdiction, it is necessary to refer to a tiresome and
oddly persistent fallacy that arose from an early case in the Permanent Court of
International Justice (PCIJ). The case concerned a collision on the high seas (that is,
that part of the sea that is beyond the territorial jurisdiction of every State), between
the French steamer, the Lotus, and the Turkish steamer, the Boz-Kourt, which resulted
in eight deaths. When the Lotus entered Constantinople, the Turkish authorities
prosecuted M Demons, the officer of the watch on the Lotus. Proceedings were also
instituted against the captain of the Turkish ship. France objected to the proceedings
against M Demons, on the ground that no State is entitled to extend its law to foreign
ships on the high seas, and that Turkey, accordingly, was not entitled to prosecute
M Demons. The PCn held that Turkey was entitled to prosecute. The passage
in question is so often quoted, and so much misunderstood, that it is worthwhile
reproducing it here. The Court said:1O
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.
That proposition is not controversial. It asserts that a State's enforcement jurisdiction
is in principle confined to the State's territory (I return to this point below). In the
Lotus case, this was not an issue. Turkish authorities had not gone out on to
the high seas to arrest M Demons: they had waited until the Lotus entered a Turkish
port and so came within Turkish territory and thus within Turkish enforcement
jurisdiction. The question was whether having arrested M Demons in Turkey he, as a
French citizen, could then be prosecuted by the Turkish authorities for his acts outside
Turkish territory, on the high seas. The Court continued, addressing itself to this
question, as follows: l l
It does not, however, follow that international law prohibits a State from exercising juris-
diction 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 internation:allaw 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
10 'Lotus', Judgment No 9,1927, PCl], Ser A, No 10, pp 18-19.
11 Ibid, P 19.
JURISDICTION 335
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 ...
That passage has been read as indicating that a State may extend the reach of its
prescriptive jurisdiction as it chooses, except in circumstances where it can be shown
that some rule of international law specifically prohibits it from doing so. A moment's
thought will indicate that it is extremely improbable that this is what the Court meant
to say. Suppose, for example, that Zimbabwe were to enact a law that made it an
offence for anyone, of whatever nationality and wherever in the world they might be,
to make a complaint to a UN body alleging that any State had violated its inter-
national human rights obligations; and suppose that a British citizen, on holiday
in Zimbabwe, was arrested and charged with breaking that law by writing to the UN
Human Rights Committee from his home in Birmingham with a complaint that,
say, Iraq had violated its obligations. 12 Could it really be supposed that the onus would
be upon the United Kingdom to prove that some prohibitive rule of international law
forbade such exercises of legislative jurisdiction by Zimbabwe?
There are many reasons for thinking that international law does not impose the
burden of proof upon those objecting to egregious assertions of jurisdiction over
foreigners outside the territory of the legislating State. Two are of particular relevance
here. First, in more than a century of objections to exercises of extraterritorial
jurisdiction, from the Cutting case l3 onwards, there seems to be not a single instance
of an objecting State either seeking to prove that there existed a prohibitive rule
forbidding the contested exercise of extraterritorial jurisdiction, or indicating that
it might consider itself to be under any legal obligation to do so. When States object
to exercises of jurisdiction, they simply assert that the other State has 'no right' to
exercise jurisdiction in the way that it claims. State practice is consistently based upon
the premiss that it is for the State asserting some novel extraterritorial jurisdiction to
prove that it is entitled to do so. Secondly, the argument in favour of the alleged
presumption of freedom is fallacious. In the Lotus case the Court argued that: 14
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.
Even if the characterization of international law as fundamentally consensual
is accepted, it does not follow that a sovereign State is free to do what it wishes. The
12 An extreme example: Zimbabwe has not, as far as I know, enacted any such law. The United States,
however, has enacted a law in somewhat similar terms: see below, note 33.
13 Foreign Relations of the United States, 1887, p 751; idem, 1888, II, pp 1114, 1180.
14 'Lotus', Judgment No 9, 1927, PCl], Ser A, No 10, P 18.
 VAUGHAN LOWE
sovereign equality of States is equally a fundamental principle of international law.
Claims by one State to prescribe rules for persons in another State encroach upon
the rights of the State where those persons are based itself to exercise jurisdiction
over those within its territory. There are two States-two 'co-existing independent
communities' -involved, and there plainly can be no presumption that the one
asserting extraterritorial jurisdiction is entitled to prevail in the event of a conflict,
and to impose its laws on persons within the territory of another State.
The best view is that it is necessary for there to be some clear connecting factor, of
a kind whose use is approved by international law, between the legislating State and
the conduct that it seeks to regulate. This nQtion of the need for a linking point, which
has been adopted by some prominent jurists, 15 accords closely with the actual practice
of States. If there exists such a linking point, one may presume that the State is entitled
to legislate; if there does not, the State must show why it is entitled to legislate for
anyone other than persons in its territory, or for its nationals abroad (who are covered
by the territorial and the national principles respectively).
There are two of these linking points, or 'Bases of Jurisdiction', or 'principles
of jurisdiction' (the terms mean the same thing) that are firmly established in
international law: territoriality, and nationality.
A. THE TERRITORIAL PRINCIPLE
The territorial principle is a corollary of the sovereignty of a State over its territory.
That sovereignty entails the right of the State to prescribe the laws that set the
boundaries of the public order of the State. It is taken for granted that foreign visitors
to a State are bound by the State's criminal law in the same way as everyone else in the
State. It may be less obvious, but it is no less true, that States may impose the entirety
of their laws-economic, social, cultural, or whatever-upon everyone within their
territories. In practice, States generally exercise this power with moderation. While
the basic principle is that everyone within the territory is equally obliged to obey
the law, those laws may be drafted so as to exempt people who are merely visiting the
State from certain obligations, such as obligations to pay income tax or to perform
compulsory military service (and equally, so as to exclude them from certain rights,
such as the right to vote, or to social security payments). Exactly how and where these
lines are drawn is a matter for each State.
The 'territory' of the State includes both its territorial sea, which extends twelve
miles from its coast, and the airspace above its land and sea territory. States may
thus legislate for ships off their coasts, and for aircraft in their skies. It was the latter
right that entitled the United Kingdom to prosecute the Libyan nationals accused
of blowing up a US aircraft in the skies above Lockerbie, Scotland, in 1988. Again, in
practice States usually leave the prescription of rules applicable on board ships or
aircraft to the State of registry of the craft, asserting jurisdiction only in exceptional
15 See the discussion in Attorney-General of the Government of Israel v Eichmann (1961), 36 ILR 5.
JURISDICTION 337
cases. The routine application of the customs and excise laws of the territorial State
is a most common exception to this pattern, which is one reason why duty-free sales
cease shortly before the craft arrives at its destination.
States enjoy 'plenary' jurisdiction over their territory. That is to say, subje<;:t to
their duties under human rights laws and similar constraints, they may legislate as
they please, on any matter whatsoever. At sea, States enjoy an additional but func-
tionally limited jurisdiction. Beyond the twelve-mile territorial sea they may claim a
twelve-mile contiguous zone, in which they can exercise jurisdiction in relation to
customs, fiscal, sanitary, and immigration matters, and also in order to safeguard
submarine archaeological sites. Subject to certain limitations, they may also assert
jurisdiction over the exploration for and exploitation of living and non-living
resources (such as fish and oil) and energy, over the establishment of artificial
islands and structures, and over pollution and scientific research, in an Exclusive
Economic Zone (EEZ) that extends 200 miles from the coast. And they may assert
full civil and criminal jurisdiction over installations, such as oil rigs, set up on their
continental shelves or in their EEZs in order to exploit seabed resources. These zones
that lie beyond the territorial sea are not part of the territory of the State; but the
coastal State is permitted to exercise limited jurisdiction in them, in contrast to
the position on the high seas (and in outer space) where, in principle, craft and
those on board them are subject to the jurisdiction only of the State of registry (the
'flag' State). 16
Most acts, most bank robberies, weddings, and daily struggles to earn a living, take
place squarely within the territory of a single State. The territorial principle is entirely
adequate to sustain jurisdiction over such acts. Indeed, in the domestic law of many
States there is a presumption that the State's laws, in particular its statutes, apply
throughout the State's territory but not outside that territory, unless there is clear
indication that the law is intended to apply outside the territory. Some acts, however,
straddle more than one jurisdiction. The Lockerbie bomb is said to have been loaded
aboard the aircraft in Malta, before it entered the United Kingdom; the September
11 th attacks are said to have been planned and prepared by people in a number of
different countries. Who has jurisdiction? One solution would be to allow each State
to exercise jurisdiction over the particular fragment of the greater scheme that was
located within its territory: one State might prosecute the offence of loading a bomb
on board an aircraft, another the offence of causing an explosion on board an aircraft,
another, murder, and so on. Whatever theoretical tidiness might be preserved by
such an approach, it has no practical merits to commend it. It is more efficient if the
investigation and prosecution of an offence is concentrated largely in the hands of
a single State. That is what States in fact 40. Territorial jurisdiction has spawned
two variants to cope with such situations. They are commonly known as subjective
territorial jurisdiction and objective territorial jurisdiction.
16 See the UN Convention on the Law of the Sea, 1982, Articles 2, 33, 56, 60, 92, 303.
 VAUGHAN LOWE
1. Subjective territorial jurisdiction
'Subjective territorial jurisdiction' is the name given to the exercise of prescriptive
jurisdiction by a State in circumstances where it applies its law to an incident which is
initiated within its territory but completed outside its territory. The prosecution for
murder of bombers by the State in which they put the bomb on board an aircraft,
even though the bomb exploded in the airspace of another State, is an example.
2. Objective territorial jurisdiction
'Objective territorial jurisdiction' is the name given to the exercise of prescriptive
jurisdiction by a State in circumstances where it applies its law to an incident that
is completed within its territory, even though it was initiated outside its territory.
The prosecution for murder of bombers by the State in whose airspace a bomb
on board an aircraft exploded, even though the bomb had been loaded on the
aircraft in another State, is an example. The Lotus case is another example. Ships
(and aircraft) are treated for jurisdictional purposes much as if they are pieces of
floating territory of the State of registration, although they are, in law, quite clearly
not parts of the State's territory. The act of the Lotus in colliding with the Turkish
ship was, therefore, an act completed within Turkish territorial jurisdiction-
literally, within the Turkish ship-and accordingly liable to be prosecuted by the
Turkish authorities.
Both subjective and objective territorial jurisdiction are routinely asserted by States,
in order to secure the application of their laws to all elements of offences that they
wish-to prosecute. In English law, examples include DPPv Doot, 17 DPPv Stonehouse, 18
and Liangsiriprasertv Government of the United States ofAmerica. 19
3. The 'effects' doctrine
Exercises of subjective territorial jurisdiction have not proved problematic; but the
same cannot be said for exercises of objective territorial jurisdiction. There is little
difficulty with cases where distinct physical elements of the overall crime take place
within the jurisdiction of different States. But some States, notably the United States
of America, have sought to extend the concept much further. The clearest example
of this is the so-called 'effects' doctrine, developed first in the context of US antitrust
law. In the Alcoa case, US v Aluminium Co of America, 20 the United States asserted
jurisdiction over the conduct of a non-US company that was a member of a cartel
whose activities were intended to affect imports to or exports from the United States,
and actually did so. The significance of the decision was that it did not depend upon
the commission of physical acts within US territory: the intentional production of
economic 'effects' within the United States was sufficient.
17 [1973] AC 807; [1973] 1 All ER 940 (HL).
18 [1978] AC 55; [1977] 2 All ER 909 (HL).
19 [1991]1 AC 225; [1990] 2 All ER 866 (PC).
20 US v Aluminium Co ofAmerica, 148 F.2d 416 (1945).
JURISDICTION 339
This idea reached what is perhaps its fullest expression in the Uranium Antitrust
litigation, which surfaced in the English courts in Rio Tinto Zinc Corp v Westinghouse
Electric COrp.21 There, uranium producers in a number of States, including the United
Kingdom, formed, with the knowledge or encouragement of their national govern-
ments, a cartel, primarily in order to maintain the world market price of uranium.
This was in response to a protectionist US law that had effectively shut them out of
the United States market, which amounted to more than two-thirds of the world
market. Meanwhile, Westinghouse, a US company, had contracted to sell uranium to a
public utility in the United States, at a price set some years earlier, but needed to buy
the uranium on the world market. The cartel's success in maintaining the market
price of uranium was such that Westinghouse could not afford to fulfil the contract.
Westinghouse was sued for $2bn; and it in turn sued some members of the cartel
for $6bn, under a provision of US ~titrust law that allows those injured by cartels to
recover treble damages. Here, US law was to be applied to non-US companies, in
respect of their acts outside the United States, at a time when they were forbidden by
US law to trade in the United States. The only jurisdictional link was the 'effect' of
the cartel upon the United States: there was no intraterritorial conduct at all. It is the
reliance upon economic .repercussions within the territory, rather than upon some
element of intraterritorial conduct, that distinguishes the 'effects' doctrine in its pure
form from objective territorial jurisdiction, which does require some intraterritorial
conduct. The assertion of extraterritorial jurisdiction by the United States in this case
was met with strong protests from many other States.
It is sometimes said that other States also assert jurisdiction on the basis of the
'effects' doctrine. There is some truth in this. States such as France and Germany, and
the Ee in cases such as Woodpulp,22 have adopted laws or decisions that appear to
involve such an assertion; but on a closer inspection it is clear that such laws are
usually applied only in circumstances where there is some element of intraterritorial
conduct.
B. THE NATIONAL PRINCIPLE
States have an undisputed right to extend the application of their laws to their citizens
(that is, those who have the nationality of the State), wherever they may be. This
type of jurisdiction has a longer history than jurisdiction based upon the territorial
principle. Rulers asserted jurisdiction over those who owed allegiance to them even
before the rulers' control over their land territory was consolidated to the point where
they could be said to assert territorial jurisdiction. Nonetheless, the advent of the
European territorial State as the paradigmatic unit of the international legal order
has long since given territorial jurisdiction pre-eminence. Jurisdiction based on
nationality is used relatively infrequently.
21 [1978] 1 All ER 434 (HL).
22 Cases 89/85, Ahlstrom Osakyhtio v Commission [1988] ECR 5193.
340 VAUG HAN LOWE
States are in principle left free to decide who are their nationals, and to lay
down the conditions for the grant of nationality in their own laws. It is usual to accord
nationality to anyone born in the territory; except, perhaps, in cases where the
mother's presence is merely transient-for example, as a passenger on a ship or
aircraft transiting the State's territory. This basis of nationality is sometimes known
as the jus soli. It is common also to accord nationality to children one or both of
whose parents are themselves nationals cf the State. This is sometimes known as
the jus sanguinis. States also commonly provide for the conferral of nationality
by naturalization, the process in which those who fill whatever residential and
other requirements the State may lay down apply to become nationals of the State.
Naturalization usually involves the renunciation of any other nationalities the person
might have; but it is not uncommon for people to have two nationalities, one derived
from the nationality of their parents, the other from the place where they were born.
Such people are known as 'dual nationals'.
The nationality of companies is also a matter for each State to determine under its
own laws; but here the practice is more complex. As the International Court noted in
the Barcelona Traction case,23 there is a divergence in State practice. Broadly speaking,
there is a tendency for common law States to accord nationality to companies on the
basis of their incorporation in the territory of the State, regardless of where the actual
business or management of the company is carried out. In contrast: at least some civil
law States confer their nationality not on the basis of the place of incorporation but
rather on the basis of the place where the company has the seat of its management. As
companies may be formally incorporated in one State for tax reasons, but maintain
their actual business or management elsewhere, this is a significant point. In contrast
to individuals it seems that companies cannot change their nationality, for example by
naturalization. They can only achieve a comparable result, by dissolving the company
and transferring all of its assets and responsibilities to a new company in another
State. This is, however, more a matter of corporate succession than of a change of
nationality.
The freedom of States to fix the conditions for the grant of nationality extends
also to ships and aircraft. The same is true of comparable structures, such as off-
shore oil rigs (which appear to be regarded as having the nationality of the State
of registry while they are in transit, even though they fall under the jurisdiction of
the coastal State while they are actually operating on the continental shelf). Typical
conditions might include a requirement that the vessel operates from a home port
in the State, or has a certain proportion of the owners, or perhaps of the crew, having
the nationality of the State. In this respect, many States tend to be more restrictive
in granting nationality to ships and aircraft than they are in granting nationality to
companies.
This freedom is not absolute. The existence of limitations upon the international
effectiveness of grants of nationality was discussed by the International Court in the
23 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, p 3.
JURISDICTION 341
Nottebohm case,24 which is sometimes supposed to be authority for the proposition that
a genuine and close link between the individual and the national State is necessary
if nationality is to be effective: ie, if other States are to be obliged to accept it as an
adequate basis for the State to treat the individual as its national. The Court did not
say that. It did hold that nationality should, in principle, be the juridical expression of
a close factual link between the individual and the national State. But the Court was
not concerned with the effectiveness of nationality in general, but only with the much
narrower issue of its effectiveness as the basis for diplomatic protection. The Court
was not even concerned with the general question of the right of a national State
to exercise diplomatic protection. The Court limited itself to the particular question
whether a State with which a naturalized citizen has no real links can exercise
diplomatic protection on behalf of the citizen against another State with which
the citizen, while not a national of that State (Nottebohm was not a dual national),
does have close and real links. The decision was, accordingly, of no relevance what-
ever to the question of the efficacy of nationality for jurisdictional purposes. Indeed,
as Nottebohm had himself chosen to become a naturalized citizen of a State,
Liechtenstein, with which he had nO_~~,~_~ks, it is difficult to see any ground on
which Liechtenstein could be denied the right to impose its laws upon Nottebohm in
accordance with the nationality principle.
One may also note that on the one occasion, post-Nottebohm, when the Inter-
national Court was invited to rule that grants of nationality not underpinned by some
close factual connection with the putative national State were ineffective, it did not do
so, but instead reaffirmed that it is for each State to fix the conditions for the grant of
its nationality.25 There are, no doubt, limits to this freedom. The mass imposition
of nationality upon unwilling people, or nationality obtained by fraud or corruption,
or a nationality acquired for vessels in order to circumvent legal regulations based
upon the nationality of ships, for example, might in certain circumstances be held
not to be effective. For practical purposes, however, States remain free to decide who
are their nationals. (It should also be noted that it is arguable that the exercise of
legislative jurisdiction based upon nationality is not a matter for international law at
all. The way that a State treats its nationals is-questions of human rights apart-in
general not a matter for international law. If a State were to legislate for persons who
were indisputably its nationals, who could complain?)
In practice, States now rarely exercise legislative jurisdiction over their nationals.
They tend to do so in order to prohibit serious offences which not only disturb
the peace of the place where they are committed, but also signal a characteristic
of the offender in which the national State has an interest. For example, a State would
plainly have an interest in forbidding its· nationals to engage in bigamous marriages
abroad, and forbidding them to commit murder abroad. Another motive for asserting
24Nottebohm, Second Phase, Judgment, ICJ Reports 1955, p 4.
25See the Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative
Organization, Advisory Opinion, ICJ Reports 1969, p 150.
342 VAUGHAN LOWE
jurisdiction over nationals is beginning to appear in State practice, too. The
emergence of bodies such as the International Criminal Court (Cassese, Gaeta, and
Jones, 2002), and of obligations under international treaties to surrender to another
State persons accused of various specified crimes, if they are not tried by the State in
which they are found, is increasing the chances of a national of a State being tried by
a foreign court. Some States are fearful of this; and some have principled objections
to the surrender of their nationals to foreign tribunals. There are signs that States are
taking steps to ensure that they can themselves prosecute their nationals for offences
for which the surrender of the national might otherwise be sought. Whether this is a
sign of the seriousness with which the States intend to prosecute nationals accused
of such offences, or rather of the determination of States to keep their nationals as far
as possible out of the hands of foreign courts, is not entirely clear.
C. THE PROTECTIVE PRINCIPLE
It has long been recognized that when essential interests of the State are at stake States
need to, and will, act in order to preserve themselves. Accordingly, when vital issues
are threatened, even if by non-nationals acting outside the territory of the State, the
State's interests are engaged and it may exercise its legislative jurisdiction over them.
The counterfeiting of a State's currency is a typical example, as is an extraterritorial
conspiracy to evade the State's immigration laws.
The category of vital interests is not closed. The United States has asserted juris-
diction over foreigners on the high seas on the basis of the protective principle, in
cases such as US v Gonzalez,26 and in statutes such as the 1986 Maritime Drug Law
Enforcement Act. It argues that the illegal trade in narcotics constitutes so severe a
threat to United States' society that the protective principle allows this extension of its
jurisdiction. Other States have acquiesced in this United States' move; but they have
tended not to follow it but rather to extend their jurisdiction by means of treaty
arrangements concerning the suppression of unlawful drug trafficking.
The rationale of the protective principle is clearly linked to the protection pf vital
State interests. Accordingly, while the category is not closed, the potential for its
expansion is limited. Whereas States could, in principle, apply any law that they might
choose to their nationals, by no means every law could be given extraterritorial scope
under the protective principle. That is why offences against, for example, a State's
competition laws are not prosecuted on the basis of this principle but are instead
explained as applications of the territorial principle or the 'effects' doctrine. That
said, the overblown rhetoric with which governments from time to time describe their
attempts to combat various 'threats' to the State, or to civilized values or to the world
order or whatever, must take their toll. The pressure to expand the use of this prin-
ciple, and the danger of unshackling it from the protection of truly vital interests and
of permitting its use for the convenient advancement of important interests, is clear.
26 776 E2d 931 (1985).
- - - - - - - - - - - - - - - - - - - - - - - - - - .-._----
JURISDICTION 343
D. THE UNIVERSAL PRINCIPLE
Some crimes are regarded as so heinous that every State has a legitimate interest
in their repression. That is the traditional explanation of universal jurisdictionY
But given that the first, and one of the most firmly established, of the instances of
crimes covered by the universal principle is piracy, one may wonder if the traditional
explanation is entirely satisfactory.
It is probably more accurate to say that there are two strands running together to
make up the universal principle. One is the strand that is indeed made up of heinous
crimes, such as genocide, crimes against humanity, and serious war crimes, all of
which are subject to universal jurisdiction. The second is crimes that are serious,
and which might otherwise go unpunished. Piracy-which means simply an un-
authorized act of violence or depredation committed by a private vessel ·on the high
seas against another vessel, for private ends-may involve relatively minor uses of
force; and not every act of piracy can properly be described as heinous. Yet
for centuries, piracy was covered by universal jurisdiction, but murder, armed
robbery, rape, and arson, which could surely be equally heinous, were (and are) not.
The justification for universal jurisdiction over pirates is not so much that piracy is
inherently heinous, and on a par with genocide and war crimes, as the fact that
because pirates operate on the high seas it is very easy for them to evade the juris-
diction of any State that might have jurisdiction over them on some other basis (for
example, the flag State of their ship, or their national State), unless any State that
happens to have them within its jurisdiction is entitled to try them. 28
This point is not trivial. One might argue that the principle could be extended to
justify assertions of jurisdiction over others who commit serious crimes in places
beyond the territorial jurisdiction of the State. Crimes committed in Antarctica would
be one example (which the 1!nited States has in fact addressed by making certain
acts, such as murder, committed by or against US nationals in Antarctica, subject to
US jurisdiction). .
E. TREATY-BASED EXTENSIONS OF JURISDICTION
If the territorial principle, in all its variants, is overwhelmingly the most important
principle in the day-to-day application of a State's laws, much the most impor-
tant basis for the assertion of extraterritorial jurisdiction is now the large, and con-
stantly growing, network of treaties in which States cooperate to secure the effective
and efficient subjection to the law of offences of common concern.
Most of these treaties follow the same broad pattern. A particular offence or range
of offences is defined. For example, Article 1 of the 1971 Montreal Convention for the
Suppression of Unlawful Acts against the Safety of Civil Aviation (which is at the
27 See, eg, US v Yunis, 681 ESupp 896 (1988); Arrest Warrant of 11 April 2000 (Democratic Republic of the
Congo v Belgium), IC! Reports 2002, p 3; (2002) 41 1LM 563.
28 See again the Yunis case, idem.
344 VAUGHAN LOWE
centre of the Lockerbie case in the International Court ofJustice),29 states that a person
commits an offence if he unlawfully and intentionally performs an act of violence
against a person on board an aircraft in flight if that act is likely to endanger the safety
of that aircraft, or ifhe commits certain other specified acts. The Convention then goes
on to require all States parties to make such acts punishable by severe penalties and
to assert their jurisdiction over such offences if they are committed in certain specific
circumstances, including offences committed in the territory of the State or on board
an aircraft registered in the State, and offences committed in cases where the aircraft
lands in the State's territory with the alleged offender still on board. Most significant
of all is the obligation to provide for jurisdiction over offences in every case where
the alleged offender is found within the State's territory, regardless of the offender's
nationality or of the place where the offence was committed. This is a crucial element
in what is often known as the aut dedere, aut iudicare provision, which stipulates that
in every case where an alleged offender is found within the State's territory the State
must either extradite him to face trial in another State that seeks him for the purposes
of prosecution (and for this purpose, the Convention offences are deemed by the
Convention to be included in the lists of extraditable crimes that appear in any
extradition treaties that may be in force between the two States), or if it does not
extradite him, it must submit the case to its competent authorities for the purpose of
prosecution.
Thus, the aim is to ensure that alleged offenders do not escape prosecution; and
the convention does this in part by creating what is in essence a form of universal
jurisdiction as between the parties. (It is, strictly speaking, only applicable between the
parties. In theory, if an alleged offender was prosecuted for an offence outside
the territory of, and not on an aircraft registered in, the prosecuting State, and the
national State of the alleged offender was not a party to the Convention, it could object
to the assertion of jurisdiction over its citizen. There do not appear to have been any
such protests, however.)
There are many conventions that follow a similar pattern, most of them designed
to counter various forms of terrorist activity or internationally organized crime.
Some, such as the 1979 International Convention Against the Taking of Hostages,
have introduce a different, wider range of circumstances in which States parties must
establish their jurisdiction over offences defined in the convention. Likewise, the
1979 Hostages Convention stipulates that States parties must establish their juris-
diction over Convention :offences committed in any of a range of circumstances: in
the State's territory, or on board a ship or aircraft registered in the State; or by any of
its nationals (and, if the State considers it 'appropriate' also by any stateless persons
who have their habitual residence in its territory); or '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
29 See Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial
Incident at Lockerbie, Provisional Measures, Orders of 14 April 1993, IC! Reports 1992, pp 3, 114; 94 1LR 478;
Preliminary Objections, Judgment, IC! Reports 1998, pp 9, 115; 117 ILR 1.
JURISDICTION 345
that State, 'if that State considers it appropriate'. The last two circumstances are
particularly interesting. In the last circumstance, jurisdiction is based on the national-
ity of the victim, a ground often known as the 'passive personality' principle, which
will be discussed below. It would allow, for example, the United States to prosecute
someone who took a US citizen hostage in a foreign State. The other extension of
jurisdiction, to States which are the target of the hostage-taker's pressure, would allow,
for example, Israel to prosecute someone who took a non-Israeli Jew hostage in order
to bring pressure upon Israel-a scenario similar to the hijacking of the Achille Lauro
in 1985,30 in which a Jewish US citizen was killed as part of a campaign to pressurize
Israel. Novel and striking as such bases of jurisdiction might be, in the context of the
treaty their effect is·· less dramatic. The general aut dedere, aut judicare principle
requires the State to prosecute every alleged offender found within its territory, if
it does not extradite him. The law of States parties must therefore provide for juris-
diction over offenders whether or not the offence was committed within the State's
territory or ships or aircraft, or by or against a national of the State, or in order to
compel the State to do something. The broad grounds of treaty jurisdiction are all
in effect swallowed up within the quasi-universal jurisdiction that the aut dedere, aut
judicare principle requires. What the treaty regime does add, however, is a clear
entitlement of States whose links with the offence fall within one of the specified
grounds to seek the extradition of the alleged offender. The treaty provisions have the
important practical effect of extending the range of States acknowledged as having a
legitimate interest in the prosecution of th~ alleged offender.
These extensions of jurisdiction treaty grounds have induced some parallel devel-
opments in the unilateral practice of States. For example, after the 1985 Achille Lauro
incident, the United States followed the broad approach of these international treaties
by enacting the 1986 Omnibus Diplomatic Security and Anti-Terrorism Act, which
asserted jurisdiction over physical attacks on US citizens outside the United States.
(It is interesting to note that this development was recorded in the Cumulative Digest
of United State Practice in International Law 1981-88 under the heading 'Jurisdiction
Based on Universal and Other State Interests' -an indication of an increasingly
robust approach to extraterritorial jurisdiction over terrorists.) Similarly, in United
Kingdom law universal jurisdiction is asserted in sections 47 and 51 of the Anti-
Terrorism, Crime and Security Act 2001, in respect of the offence of knowingly
causing a nuclear explosion without authorization. The Rule of Law isa wondrous
th~ t
F. CONTROVERSIAL BASES OF PRESCRIPTIVE JURISDICTION
The bases of jurisdiction described above are generally accepted in State practice.
There are certain other .bases that have been advanced by States from time to time,
which have not found general acceptance. These are instances of States considering
30 See (1985) 24 1LM 1509.
 VAUGHAN LOWE
that the link between them and the conduct that they seek to regulate is sufficient
to warrant the exercise of prescriptive jurisdiction. The objections of other States,
however, operate to preclude the emergence of a <general practice accepted as law'
and the consequent establishment of the claimed basis of jurisdiction in customary
international law.
1. Passive personality
One of the oldest controversial bases of prescriptive jurisdiction is the so-called
<passive personality' principle: that is, the principle that would allow the national
State of the victim of an offence to assert prescriptive jurisdiction. That principle lay
behind the controversy that arose in 1885 when Mr AK Cutting, a citizen of the
United States, was imprisoned in Mexico and charged with having libelled a Mexican
citizen in a paper published in the United States. In his annual address to Congress
in 1886, President Grover Cleveland recalled that the incident <disclosed a claim of
jurisdiction by Mexico novel in our history, whereby any offense committed anywhere
by a foreigner, penal in the place of its commission, and of which a Mexican is the
object, may, if the offender be found in Mexico, be there tried and punished in
conformity with Mexican laws'. He went on to say that <[t]he admission of such a
pretension would be attended with serious results, invasive of the jurisdiction of
this Government and highly dangerous to our citizens in foreign lands. Therefore I
. have denied it and protested against its attempted exercise as unwarranted by the
principles of law and international usages'. It is a perfect example of a protest against
an excessive jurisdictional claim. It will be noted that the United States assumed that
the burden lay upon Mexico to prove its entitlement to exercise jurisdiction in this
way; no attempt was made by the United States to establish a <prohibitive rule' of the
kind that is sometimes said to be required by the Lotus case.
Claims to jurisdiction based upon the passive personality principle are still made.
For example, in 1975 the United States again had cause to protest against assertions of
passive personality jurisdiction, on that occasion by Greece. 31 The passive personality
principle has still not established itself in customary international law but, as was
noted above, it features prominently in international treaties such as the Hostages
Convention.
2. National technology
One of the most imaginative, and least successful, attempts to extend the scope of
legislative jurisdiction was made by the United States in the 1980s. In the course of its
attempts to prohibit trade with the Soviet Union, following the imposition of martial
law in Poland, the United States made it a criminal offence for anyone, regardless
of their n!ltionality or State of residence, to export to the Soviet Union goods that
contained more than a certain proportion of components of US origin or had been
created using US technology. This was an attempt to assert jurisdiction on the basis of
31 See the Digest Of United States Practice In International Law 1975, p 339.
JURISDICTION 347
the <nationality' of technology (a concept unknown in international law); and it
was vigorously resisted by the European States whose nationals bore the brunt of the
prohibition. The main European protest appears in the Comments of the European
Community dated 12 August 1982. 32 Again, however, the refusal of other States to
accept the right to the United States unilaterally to impose its law on anyone who
handles US technology has not prevented the acceptance of that basis of jurisdiction
on an agreed basis in international treaties. For example, States appear to have been
willing to conclude .agreements relating to transfers of nuclear materials, under which
the consent of the supplying State is required in the event of subsequent transfers of
the material.
3. Unprincipled assertions of jurisdiction
From time to time, States are tempted to assert an extended extraterritorial juris-
diction in a manner that appears to be almost totally unprincipled. One of the most
startling examples is to be found in the US Military Order of 13 November 2001,
concerning the detention at a US base, Guantanamo Bay in Cuba, of <international
terrorists' seized by the United States in Afghanistan. Section 7 of that Order
stipulates, in relation to detained individuals, that:
the individual shall not be privileged to seek any remedy or maintain any proceeding,
directly or indirectly, or to have any such remedy or proceeding sought on the individual's
behalf, in (i) any court of th~ United States, or any State thereof, (ii) any court of any foreign
nation, or (iii) any international tribunal. 33
It is not clear whether this curiously drafted Order is intended to prevent the making
of applications to bodies such as the Inter-American Commission of Human Rights;34
but insofar as it is intended to forbid non-US citizens to make such applications, it
is difficult to see that even the protective principle could be stretched so far as to
justify this provision, even if it were otherwise compatible with the United States'
international obligations.
G. INADEQUACIES OF THE TRADITIONAL APPROACH
The traditional approach to the bases of jurisdiction is beset by considerable difficulty
in practice. Two problems stand out. First, th~ problem of locating acts; and second,
the problem of reconciling conflicts when two or more States have concurrent
jurisdiction.
1. The difficulty of locating acts
The territorial principle, both in its plain form and its objective and subjective
variants, presupposes that it is clear where an act is committed; but that is far from
32 (1982) 21 lLM 891.
33 www.whitehouse.gov/news/releases/2001l111print/20011113-27.html.
34 The Inter-American Commission acted anyway: see (2002) 41 lLM 532.

VAUGHAN LOWE
always the case. Take, for example, the case of the hijacking of an aircraft. If control
over an aircraft registered in State A is seized w4ile the aircraft is in the airspace of
State B, is the hijack' committed' (or, rather, still being committed) when the aircraft
lands in State C? And, to take another example, suppose that individuals in States L
and M conspire by fax, telephone, and e-mail to import narcotics into State K, but
that only one of them ever sets foot in State K. Could each of States K, L, and M assert
jurisdiction over the entire conspiracy and all of the participants?
As a matter of domestic law (the law under which the accused will, of course, be
tried), it is evident that much will depend upon the particular way in which the
crime with which they are charged is defined. The English courts have distinguished
between 'conduct' crimes and 'result' crimes, the former focusing upon what is
actually done and the latter upon the consequences of what is done, in a manner that
lends itself respectively to the application of the subjective and objective variants of
territorial jurisdiction. 35
While such approaches may be sufficient to enable national courts to overcome any·
difficulties that they may have in determining the reach of the laws that they have to
apply, it does not answer the question whether the jurisdictional reach asserted in
those laws is in conformity with international law. Indeed, the drafting of national
laws may aggravate the problem. It is quite possible to redraft every offence so as to
make it a crime to enter the State having done .x, y, or z before entry. For example, the
customs laws of some Commonwealth States made it an offence for ships to enter the
territorial sea having broken a bulk cargo into smaller parcels on the high seas (such
breaking being almost invariably the prelude to smuggling of goods ashore). Was that
an extension of the State's jurisdiction onto the high seas? Or was it an assertion of
jurisdiction over acts that took place within the State's territory? A slightly different
issue was raised in the 1920s by the US Prohibition Law, which sought to forbid the
importation of alcohol into the United States. That law was applicable to foreign
cruise ships entering US ports from the high seas. Did that therefore mean that the US
was forbidding those ships to carry alcohol on the high seas? That was certainly the
practical effect of the enforcement of the Prohibition Law; but was it the proper
juridical characterization of that law?
There is no clear theoretical answer to this problem. As usual, however, there is
much to be said for falling back on common sense. Where other States consider that
the jurisdictional claim has gone too far-as they did in relation to the application of
the Prohibition Law to foreign cruise ships,36 but not in relation to the laws on the
breaking of bulk cargo-they will protest. Those protests generally hold jurisdictional
claims within reasonable bounds. If other States choose to acquiesce in the claim, it
will become established in customary law.
35 See DPPv Doot [1973] AC 807; [1973]1 All ER 940 (HL); DPPv Stonehouse [1978] AC 55; [1977]2 All
ER 909 (HL); Liangsiriprasertv Government of the United States ofAmerica [1991] 1 AC 225; [1990] 2 All ER
866 (PC).
36 The dispute was largely settled by an accommodation in the series of bilateral 'Liquor treaties' made
with the United States.
JURISDICTION 349
2. The difficulty of overlapping jurisdiction
All of the examples cited in the previous section in fact involve overlapping juris-
diction: that is, more than one State can make out a claim on the basis of established
principles of international law to apply its laws to the conduct in question. That is hy . v:
the cases are problematic: it is unlikely that a State will complain about the assertIOn
of jurisdiction over an individual unless there is some other State that might m~re
appropriately assert jurisdiction. In the 'Prohibition' cases, for example, the protestmg
European States thought it right that the flag State, and not the State of each port at
which a cruise ship might call, should decide whether or not the ship could carry
alcohol on board.
Instances of' overlapping', or 'concurrent', jurisdiction give rise to the question of
priority. If the applicable laws diverge, which is to prevail? In some ~ases it may.appear
clear which law is to yield. There is a considerable body of practice supportmg the
view that a State may not require anyone outside its territory to do an act that would
violate the criminal law of the place where the act would be done. Thus, courts in the
United States allow what is sometimes known as the 'foreign sovereign compulsion'
defence. For example, the court may excuse a failure to produce documents in pursu-
ance of an order of the court, if the failure results from a prohibition on disclosure
37
under the criminal law of the State where the documents are located. (This defence is
not available in circumstances where the duty of non-disclosure arises under the civil,
rather than the criminal, law of the territorial state.)38
Some States have sought to utilize the foreign sovereign compulsion defence by
enacting laws that oblige persons in their territory to do or not to do certain things.
For instance, the United Kingdom enacted the Protection of Trading Interests Act
1980 (a more powerful successor to the Shipping Contracts and Commercial
Documents Act 1964), under which the Secretary of State may order any person in the
United Kingdom not to comply with orders from a foreign cour~ for the prod~cti~n
of evidence or, indeed, with substantive orders made on the baSIS of extraterntonal
jurisdiction by a foreign State. The powers under the Act were invoked in 1982 in
order to forbid British businesses to comply with US orders not to supply goods to
the Soviet Union for use in connection with the construction of the Siberian gas
pipeline, during the so-called 'pipeline' dispute39 -an unusual example of one NAT?
State making it a criminal offence to comply with the law of another NATO State m
respect of dealings with the Soviet Union during the Cold War. Similar laws, often
known as 'blocking' statutes, have been adopted by a number of other States including
Australia, Belgium, Canada, Denmark, Finland, France, Germany, Italy, Japan, the
Netherlands, New Zealand, Norway, the Philippines, South Africa, Switzerland, and-
the most dramatic measure of all-the European Community.40
37 See, eg, Societe Internationale v Rogers, 357 US 197 (1958).
38 See, eg, USv First National City Bank, 396 F.2d 897 (1968). .
39 See the symposium in (1984) 27 German Yearbook of InternatIOnal ~aw 11:-142.
40 See European Community Council Regulation (EC) 2271/96, publIshed ill (1996) OJ L309. For other
measures, see Lowe, 1983.
 350 VAUGHAN LOWE
Blocking statutes are no solution to jurisdiction of conflicts. Quite apart from the
fact that they represent a degree of friction in the international system that inevitably
impairs its efficiency, they do nothing to overcome the problem of what might
be called 'prudential compliance'. Even though an extraterritorial measure may be
patently unlawful as matter of international law, and though it is possible that a
person may at some point be ordered not to comply with it, the risk of the legislating
State imposing sanctions for non-compliance is so great that anyone caught by the
extraterritorial claim must, if they are prudent, organize their affairs so as to comply
with the law. European businesses, for example, often organize transactions so as to
comply with US law, even though the United State~ may have no legitimate claim
to jurisdiction over them; and the converse is increasingly true of US companies in
relation to EU law.
Jurisdictional disputes continue to arise, though their forms change. Thus, in 1996
the United States enacted laws providing for sanctions against Cuba (the Helms-
Burton Act) and against Iran and Libya (the D'Amato Act). Those laws contained
a range of extraterritorial measures, including the imposition of sanctions upon
non-US businesses which purchased, in good faith and for full value, property in
Cuba that had been confiscated in the 1960s from US owners who had not been
compensated for the takings. These measures provoked a strong response from the
European Community, resulting in an uneasy stand-off when the full implementation
of the American laws was suspended.41
The States that claim extraterritorial jurisdiction are by no means always and
wholly insensitive to the views of other States. US courts, in particular, have developed
what they call the 'balancing of interests' approach to jurisdiction of conflicts. This
approach has a number of variants, which may be seen in the leading cases such as
Timberlane, Mannington Mills, and Hartford Fire Insurance. 42 Broadly speaking, under
this approach the court considers the nature and extent of the United States' interest
in having its law applied, and the interests of the other State in not having US law
applied, and also factors such as the nationalities of the parties involved and the
nature of their links with the United States. It then decides whether, on balance, it
is right to apply United States law or to exercise judicial restraint. Not surprisingly,
it is practically invariably decided to apply United States law. Nonetheless, there is no
doubt that judges in United States courts are now more sensitive to the constraints
of international law and the demands of international comity than they were in the
1960s and 70s.
There are more satisfactory approaches to a solution to jurisdictional conflicts than
unilateral restraint and blocking statutes. Sometimes, States may be able to harmonize
their policies so that even though their jurisdictional claims may overlap, individuals
affected by those laws are not subjected to conflicting demands. Sometimes, States
41 See Lowe, 1997.
42 The cases are discussed in Hartford Fire Insurance Co v California, 113 S Ct 2891 (1993); and
LowenfeId,1995.
JURISDICTION 351
may be able to establish consultation procedures in Of.der to seek to elm:inate on a
case-by-case basis extraterritorial applications laws whIch would cause dIfficulty. f~r
the State in whose territory the regulated conduct occurs. A good example of thIS IS
the antitrust cooperation procedure established by the European Co~unity and
United States. 43 Such steps have, in recent years, done much to defuse disputes ov~r
jurisdiction, which are now somewhat less common and less acute than they. were ill
the 1980s- though whether this trend is anything more than temporary r~maills to be
seen. Ultimately, however, it must be recognized that jurisdictional conflIcts are con-
flicts over the right to prescribe the rules that make up the public order. of the State.
"Whatever solution is adopted, it must be a solution that ensures the nght of ever:
State, as an equal sovereign, to decide for itself upon the precise natu~e of that.publIc
order, to the extent that it can do so without invading and subvertrng the nght of
other States to do likewise.
III. THE FUNDAMENTAL PRINCIPLE GOVERNING
ENFORCEMENT JURISDICTION
In contrast to the principles governing the exercise of p~es~ri~ti:e j~risdiction,
the international law governing the exercise of enforcement JunsdictlOn IS clear ~d
-i;imple. There is one basic principle: enforcement jurisdiction may not be exerCIsed
-in the territory of any other State without the consent of that State. In other words,
enforcement jurisdiction is in principle limited to the territory of the State con~erned.
(In fact, those two propositions are not precisely the same: there are areas outsIde the
territory of a State that do not fall within the territory of another State-for example,
the high seas, and the exclusive economic zones of other States.) .
One particular application of this principle is that the courts ~f one State will
generally not enforce the public laws of another. 'Public laws', in thIS co~text, means
not only criminal laws but also laws relating to matters such as taxanon, that are
quintessentially manifestations of the State's sovereign powe.r, rather th~ l~v:s that
lay down the ground rules for the creation of rights and dunes betwe~n illdIVlduals,
in the way that, say, contract, family, and land law do. The most d.Ifficult laws to
classify on this basis are tort laws. These are in some respects pnvate, b~t m~y
also be viewed as laws by which the State prescribes rules of conduct for SOCIety, ill
the same way that it does in its criminal law, but leaving the enfo:ceme.nt of
those rules up to private parties. This dual nature of tort law is mos~ eVIdent ill US
antitrust laws, where those injured by unlawful anticompetitive practIces are ~~abled
to recover treble damages, as an incentive to act as 'private attorneys general ill the
43 EC-US Agreement on the ApplIcatIon
., .. C omlty
of POSItIve . P' . 1es in the Enforcement of their
nncip
Competition Laws, OJ L173 of 18 June 1998.
 352 VAUGHAN LOWE
JURISDICTION 353

enforcement of the laws. For that reason, English courts have refused to enforce US
antitrust laws. 44 as Argentina did in the trial of Eichmann, there is at least the possibility that
the national State of the abducted individual might complain that its rights, too
It is unusual, but not unknown, for one State to give another permission to
have been violated. As far as the individual is concerned, the position is less clear. In
exercise enforcement jurisdiction in its territory. Perhaps the most significant agree-
some States the illegalitY of the abduction may, as a matter of the domestic law of the
ments of this kind in recent years are the so-called (ship rider' agreements made, for
State, preclude the trial of the individual. In most States, however, it is likely that ~he
example, by the United States with a number of Caribbean States, under which US
illegality of the abduction will be regarded as a matter to be handled by the ExecutIve,
navy vessels may in certain circumstances enter the territorial seas of the other party
if and when the State from which the defendant is taken complains, but not a matter
in order to pursue and arrest vessels suspected of being engaged in the illicit traffic in
that the trial court needs to take into account. So, for example, in the United States the
narcotic drugs. Similar agreements are being prepared on a multilateral basis in
most egregious violation of international law appears to be insufficient to constitute
order to facilitate· international action against narcotics traffic pnd maritime
terrorism. a bar to the trial of the abducted defendant: even the sand-bagging of suspects and
the smuggling of their comatose bodies back to the United States was he~d t? ?e no
Ordinarily, where an alleged offender who is sought for the purposes of prosecu-
obstacle to their trial before a US court, on the curious ground that the mdividuals
tion is within the territory of another State, the State that seeks him must· request
did not enjoy the protection of US Constitutional safeguards while they were. outside
the State where he is found to surrender him. Many States are, under their own
US territory.45 The English courts adopt a somewhat different approach. Havmg long
domestic law, bound not to surrender individuals except in accordance with an
taken the view that it was no concern of the court how the defendant happened to
extradition agreement that is in force with the requesting State. In addition, some
have arrived before it, in more recent years the courts have moved towards the view
States are bound under their own law not to surrender their nationals to foreign States
that the forcible abduction of defendants in violation of agreed procedures may be
under any circumstances. There is a rich body of international law and practice
so serious as to amount to an abuse of process, in which case their trial should
concerning the interpretation and application of extradition treaties, but shortage of
space precludes its discussion here. not proceed. 46 Such a finding will, however, be unusual, and be made only where t~e
British police or prosecuting authorities have themselves acted illegally ~r collude~ m
It is not unknown for States to attempt to obtain custody of alleged offenders
unlawful procedures in order to secure the presence of the defendant m the l!rnt~d
without going through the formalities of extradition procedures -or, indeed, any
Kingdom, or have violated international law or the law of a foreign State or otherwIse
other formalities. For example, individuals are sometimes simply transported over
abused their powers.47
national borders into the hands of law enforcement officers on the other side. This
appears, for example, to have been the way in which many members of the European
terrorist organizations such as the Red Brigades and the Baader-Meinhof Gang
were moved around Europe in the 1970s. On occasion, States have gone fu~ther, and
IV. CONCLUSION
themselves seized wanted persons from the territory of another State. Such actions
patently violate the territorial sovereignty of the State from which the persons are
This chapter has surveyed, albeit briefly, the principles of internationall~w ~overning
seized. If that State should retrospectively (consent' to the seizure, that may cure the
exercises of legislative and enforcement jurisdiction. These are truly prmClples, and
illegality; alternatively, the State may declare that it does not intend to pursue the
not rules. The difficulties of applying the principles rigidly have been noted, and are
question of the violation, and will regard the matter as closed. This seems to have
implicit in the nature of jurisdiction. It is not possible to devise strict rules that :V-0uld
happened, for instance, in relation to the seizure, apparently by agents of the govern-
divide jurisdiction between sovereign States in any practical manner. The solutIOn to
ment of Israel, of Adolf Eichmann from Argentina. Initially unaware of Eichmann's
jurisdictional problems has to be found by increasing the sensitivity of S:ates to the
abduction, the government of Argentina subsequently agreed to abandon its claim for
reparation for the violation of its territorial sovereignty. constraints imposed by international law, and also to the fact that the ~terests of
other States demand respect. It should be clear that if in any case the exerCIse by one
What is the position if a State seizes an accused person, in violation of territorial
State of its jurisdiction threatens to subvert the laws that another State has enacted to
sovereignty of another State, and then puts that person on trial in its own courts? As a
matter of international law, one might say that the subsequent trial compounds the
violation of the other State's territorial sovereignty; and even if that State acquiesces,
45 See US v Toscanino, 500 F.2d 267 (1974); US v Verdugo-Urquidez, 494 US 259 (1990); US v Alvarez-
Machain, 112 S Ct 2188 (1992).
44 See the submissions of the Attorney-General in Rio Tinto Zinc v Westinghouse Corp [1978} AC
46 Bennett v Horseferry Road Magistrates' Court [1994] 1 AC 42; [1993] 3 All ER 138 (HL). And see the
547 (HL). South African case of State v Ebrahim (1992),31 ILM 888.
47 R v Staines Magistrates Court, ex parte Westfallen [1998] 4 All ER 210.
 JURISDICTION 355
354 VAUGHAN LOWE

SCHLOSSER, P (2000), 'Jurisdiction and

International Jurisdiction Revisited
regulate life in its own territory, in the exercise of its sovereign right to choose how International Judicial and Administrative
after Twenty Years', 186 Recueil des
to organize life within its borders, the boundaries of lawful jurisdiction have been Co-operation', 284 Recueil des Cours 9.
Cours 9.
over-stepped. If States wish to do more than they are able to do within the 14nits of
the jurisdiction allowed to them, they must first seek the agreement and cooperation
of other States.

REFERENCES

AKEHURST, M (1972-73), 'Jurisdiction in LOWENFELD, A (1995), 'Conflict,

International Law', 46 BYIL 145-217.
BROWNLIE, I (1998), Principles of Public
International Law, 5th edn (Oxford:
Oxford University Press).
CASSESE, A, GAETA, P, and JONES, JRWD
(2002), The Rome Statute of the Inter-
national Criminal Court: A Commentary
(Oxford: Oxford University Press).
HALL, W (1895), A Treatise on International
Law, 5th edn (Oxford: Clarendon Press).
LOWE, V (1983), Extraterritorial Jurisdic-
tion (Cambridge: Grotius Publications).
- - (1997), 'US Extraterritorial Jurisdic-
tion: the Helms-Burton and D'Amato
Acts', 46 ICLQ 378-390.
Balancing of Interests, and the Exercise
of Jurisdiction to Prescribe: Reflections
on the Insurance Antitrust Case, 89
AJIL42.
O'CONNELL, DP (1970), International Law,
2nd edn (London; Stevens).
OPPENHEIM (1992), JENNINGS, SIR Rand
WATTS, SIR A (eds), Oppenheim's
International Law, 9th edn (Harlow:
Longman).
TWISS, SIR T (1884), On the Rights and
Duties of Nations in Times of Peace
(Oxford: Clarendon Press).
VERHOEVEN, J (2000), Droit international
public (Brussels: Larcier).

FURTHER READING

Curiously, there is no satisfactory modern monograph on jurisdiction. There are, however,

some good articles that discuss the basic principles of jurisdiction in international law in
the light of the various disputes that have arisen over the years:

AKEHURST, M (1972-73), 'Jurisdiction in - - (1985), 'The Problems of Extra-

International Law', 46 BYIL 145. territorial Jurisdiction: Economic Sover-
BOWETT, DW (1982), 'Jurisdiction: eignty and the Search for a Solution', 34
Changing Patterns of Authority over ICLQ724.
Activities and Resources', 53 BYIL 1. MANN, FA (1964-1), 'The Doctrine of
LOWE, V (1981), 'Blocking Extraterritorial Jurisdiction in International Law', III
Jurisdiction: the British Protection of Recueil des Cours 1.
Trading Interests Act, 1980',75 AJIL 257. - (1984-III), 'The Doctrine of