INTL 3321

Public International Law

Jurisdiction
Introduction
• Jurisdiction is the foundation of internal order of every
State.
• It is the assertion of a State’s sovereignty over the
making of law, the enforcement of law and the
adjudication of legal issues within and sometimes
outside its territory.

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Definition
• Jurisdiction has several meanings:
o Denote the scope/ reach of thing or an
activity
o Used in technical sense to imply
competence of a court or a tribunal to
try a case or deal with dispute, criminal
or civil before it.

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Definition
• In International law, jurisdiction as a
legal concept is discussed through the
examination of:
o The bases upon which a State exercises its
jurisdiction either to legislate or to prescribe laws
for all entities, humans or otherwise, present on
its territory;
o To enforce its own laws in relation to foreigners
within and outside its territory.

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Introduction
• It is the state’s ability to exert legal authority on:
1. Individuals= natural persons
2. Corps, NGOs= legal persons
3. Conduct/ event (ex sale of drugs)
4. Property/ things
• This jurisdiction extends on land, air above the land, and
subsoil. This shows the sovereignty of the state mcq

• There are certain exception which the state has limited

jurisdiction on embassies, foreign ships and foreign
airplanes

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Introduction
• It must be noted that the jurisdictional principles and
their various dimensions relate solely to criminal not
civil, jurisdiction of States.
• International law does not limit States’ jurisdiction in
civil law matters, and there is nothing stopping a State
extending its law in civil matters to another State
through conflict-of-law rules.
=> This is so because, unlike criminal law, civil law is
usually tied to the rights of the parties that arise from
personal claims not tied to the public sphere.

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Two types of jurisdiction
Jurisdiction to legislate:
• It is the authority of a state to make its law applicable to
persons or activities
• Is the jurisdiction to prescribe
• Brings any matter within the scope of legislation
• It is absolute and unfettered
• Any state has this right without limitation

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Two types of jurisdiction
• Jurisdiction to enforce:
o It is the use of resources of government to induce or
compel compliance with its law
o It is the right to enforce closely related to the territory
o The relation to territory is to prevent conflicts and
clashing of sovereignty
o However, through consent state can enforce their laws
in other territories. This means that extraterritorial
only through consent

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Five CL bases of
jurisdiction
1. Territoriality;
2. Nationality;
3. Passive Personality;
4. Protective Principle;
5. Universality.

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The Territoriality
Principle
• The territorial principle entitles a State to exercise
jurisdiction over everything and everyone found on its
territory, except those that are excluded under treaties or
customary international law, such as diplomatic
embassies or high commissions of foreign States.

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The Territoriality
Principle
• A state has the power
o To make law covering people and things on its
territory;
o To enforce laws; and
o To prosecute matters arising from breaches of such
laws, against any individuals, whether its nationals or
foreigners or any entities such as companies on its
territory.

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The Territoriality
Principle
• The right of a State to exercise territorial jurisdiction is
essential and it is considered that such right is absolute
and unquestionable.
• The territoriality principle is the most visible way
through which a State demonstrates its sovereignty.

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The Territoriality
Principle
The subjective test
• A State can exercise territorial jurisdiction over a crime
that commences on its territory, regardless of whether
the crime is actually completed on its territory or
elsewhere.

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The Territoriality
Principle
The objective test
• Under the objective test, a State is able to exercise
jurisdiction in an offence is completed on its territory,
regardless f where the offence is initiated.

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 The Nationality Principle
• Under this principle, a State may extends its jurisdiction
over its nationals beyond its territory.
• Nationality principle will generally be applied, when for
the example, the State where the criminal is located
refuses to prosecute a crime committed by that person
either because the offence committed is not a crime
under its own laws or simply for lack of interest in that
matter.

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 The Nationality Principle
• Defendant’s conduct violates State X laws
• Defendant is a citizen (national) of State X, hence allows
the state X have jurisdiction over the perpetrator
• Conduct may start or end anywhere
• Enforceable only when the perpetrator returns the
territory

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 The Nationality Principle
• This principle permits a state to exercise jurisdiction
over a person or entity on the basis of the nationality of
the person or entity
• The nationality principle has been found to be useful in
child trafficking cases.
• For example of tourists abusing and sexually exploiting
children in developing countries in which most of the
crimes occur => Prosecute offenders in home countries.

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The passive personality
principle
• The passive personality principle allows a State to
prosecute a foreigner whose act abroad affects a national
of that State.
• This principle arises where an act done abroad injuries
the nationals of another State, thereby attaching to the
nationality principle but in reverse manner.
• This principle affirms that a state may assert jurisdiction
on the basis of nationality of a victim of an offence
regardless of where the offence occurs or the nationality
of the perpetrator.

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The passive personality
principle
• Defendant’s conduct violates State X laws
• Victim is a citizen (national) of State X
• Conduct may start or end anywhere

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The protective principle
• This principle permits a state to excise jurisdiction over
certain conduct outside its territory by its own or foreign
nationals that is directed against the security of the State
or against a limited class of other state interest.

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The protective principle
• According to 33 US Restatement Foreign Relations Law
the protective principle gives the a country the:
• Jurisdiction to prescribe a rule of law attaching legal
consequences to conduct outside its territory that
threatens its security as a state or the operation of its
governmental functions, provided the conduct is
generally recognized as a crime under the law of states
that have reasonably developed legal systems.
=> What is the required is that the interest of that State, its
security or functioning wherever these many be located are
threatened by the crime.

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The protective principle
• Defendant’s conduct violates State X laws
• Conduct may start or end anywhere
• Conduct has potentially effects on State X
• Conduct has certain harm on national interest
• The Conduct is extra-territorial, conducted by non-
nationals
• Usually occurs in three cases:
o Counterfeiting
o Immigration
o Espionage
• States can assert jurisdiction on the grounds of the
state’s interest

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 The universality principle
• The impact of certain crimes transcends the jurisdiction
of any single state.
• There are certain obligations, they are owed to the entire
international community, not just the victim or the state
representing the victim and consequently all states have
the right to complain of a breach of such an obligation.
• There is no requirement of a link between the person
who commits a universal crime, the effect of the crime,
or the place where it is committed and the State that
claims universal jurisdiction.
=> What is important is that the nature of the crimes is
such that it is of universal concern.

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 The universality principle
• Defendant conduct sufficiently heinous to violate law of
all states
• Conduct started and completed anywhere
• All states may prosecute (not just state X)
• Usually jus-cogens / preemptory norm: slavery,
genocide, piracy, and torture
• Usually states that have been affected by the conduct
claim universality There is no pure universality

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Extradition
• The transfer of an accused from one state to another that
seeks to place the accused on trial.
• Elements of extradition:
1. If there is no treaty → no duty to extradite
2. Issue of specialty → can only be charged for the crimes
s/he is extradited for

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Extradition
Two schools of thought:
• Male caplus, bene detenum→ bad capture, a good
detention, a court does not take into consideration how
the offender was brought b/c even he was abducted or
came voluntarily, s /he will have a fair trial. Such a claim
is often taken by defendants to defeat jurisdiction.

• Clean hands→ the court cannot be blind to actions of the

government and must take it into consideration.

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