Unit 6: Jurisdiction of states

Dr CJ Tchawouo Mbiada
 Course outlines
❑Introduction
❑Difficulties in identifying jurisdictional rules
❑State jurisdiction under South African law
❑The six bases of jurisdiction
❑Specialised jurisdiction regimes
❑Immunity from jurisdiction
 Introduction
The definition of jurisdiction has not been defined in international law until late.
Jurisdiction refers to ‘the extent of each state’s right to regulate conduct or the consequences.
• It describes the competence of international institutions (such as international courts and quasi-judicial
mechanisms) to exercise power over states (as in the case of the International Court of Justice) and over
individuals (as in the case of the International Criminal Court).
• It further describes the obligations that states have under human rights instruments. States are said to have
obligations in respect of individuals ‘within their jurisdiction’. Finally, jurisdiction is used colloquially to
refer to national space.
Shaw defines state jurisdiction as 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.
Three, distinct powers or competences exercised by states, namely, prescriptive, enforcement and adjudicative
jurisdiction.
• This chapter is mainly concerned with prescriptive jurisdiction, or the geographical reach of a State’s laws
 Introduction
Only exceptionally is reference made to the enforcement and adjudicative forms of jurisdiction, and this is done
explicitly. For the most part, international law on states’ capacity to exercise adjudicative and enforcement
jurisdiction is settled: states are free to do so within their territory. However, there is still much debate in respect
of when a state can extend its laws to conduct that takes place abroad – that is, exercise extraterritorial
prescriptive jurisdiction.
Secondly, this unit is mainly concerned with criminal and not civil jurisdiction (governed by private
international law or conflict of laws).
• Thirdly, in many cases states have concurrent jurisdiction over conduct or persons under international law,
and there is no general legal hierarchy among jurisdictional claims.
 Difficulties in identifying jurisdictional rules
The challenge of the Lotus case
'Lotus', France v Turkey, Judgment, Judgment No 9, PCIJ Series A No 10, ICGJ 248 (PCIJ 1927), (1935) 2 Hudson,
World Ct Rep 20, 7th September 1927, League of Nations (historical) [LoN]; Permanent Court of International Justice
(historical) [PCIJ]
The case involves a collision on the high seas between a French vessel, the Lotus, and a Turkish vessel, the Boz-
Kourt, causing the latter to sink, which resulted in the death of eight sailors and passengers. When the Lotus reached
the Turkish port, the French officer in charge at the time of the collision was arrested by the Turkish authorities and
charged with manslaughter. France protested against this action, alleging that Turkey had no jurisdiction to try the
offence.
This case, and its legacy, are the source of much of the uncertainty regarding the exercise of jurisdiction by states
under international law. The PCIJ in Lotus, while accepting the territorial limits placed on a state’s enforcement
jurisdiction, went on to afford a state a wide measure of discretion or licence in respect of ‘exercising jurisdiction in
its own territory, in respect of any case which relates to acts which have taken place abroad’. It noted:
‘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, … [international law] leaves them in
this respect a wide measure of discretion, which is only limited in certain cases by prohibitive rules; as regards other
cases, every State remains free to adopt the principles which it regards as best and most suitable.’
This is terms the permissive approach which means that states possess very wide powers of jurisdiction, which …
[can] only be restricted by proof of a rule of international law prohibiting the action concerned. Simply put, in the
absence of a rule in international law to the contrary, a state may do whatever it pleases.
 Difficulties in identifying jurisdictional rules
The challenge of the Lotus case (schools of thought)
Restrictive approach which is of the view that there should be a positive ground for the exercise of jurisdiction, rather than to rely
on the absence of a prohibition. The restrictive approach is divided into two: ie
• those who consider positive grounds of extraterritorial jurisdiction to be allowed by international law through consensual state
practice (a horizontal conception of the international order), and
• those who consider such grounds to be granted by international law (a vertical conception of the international
• order).
The third group of scholars, advocate for a conciliatory approach and argue that the difference is one of emphasis, or irrelevant in
practice.
The International Court of Justice (ICJ) has not brought any further clarity to the matter and has not since Lotus directly addressed
the doctrine of (extraterritorial) jurisdiction. One may suggest that its indirect pronouncements on the subject can be interpreted in
support of both approaches.
• As a result, the development of the law in this field ‘has come about solely in national legal practice, without supervisory
guidance by an international court or regulator’. This focus on ‘national legal practice’ brings with it a number of challenges.
• Two main schools of thought restrictive and permissive ie
• Either one allows States to exercise jurisdiction as they see fit, unless there is a prohibitive rule to the contrary [the permissive
approach], or one prohibits States from exercising jurisdiction as they see fit, unless there is a permissive rule to the contrary
[the restrictive approach].
 Difficulties in identifying jurisdictional rules
The problem of state practice and opinio juris
The relevant jurisdictional rules under international law are hindered by the problems of state practice and opinio juris. The
challenges in this regard are two-fold:
• States take into account both international and domestic law, as well as policy considerations when exercising jurisdiction (or
refraining from doing so).
• States do not react to each and every exercise of jurisdiction by other states.
❖ When states choose to exercise jurisdiction (or refrain from doing so), the lawfulness of their action under international law is
not their only consideration as they may also take into account domestic law, as well as policy (‘extra-judicial’) considerations.
Ie they may exercise self-restraint and choose not to exercise jurisdiction because of domestic legal requirements or policy
concerns.
• The result is that a decision to exercise jurisdiction, or not, might not reflect state practice or opinio juris, but rather domestic
concerns of a political or legal nature. This leads to the difficulty in practice of distinguishing between a state’s refusal to
extend its jurisdiction as a result of a belief that international law does not permit it, and its refusal to do so on the basis of
domestic law or policy. Only the former would be sufficient for the purposes of pointing to a rule of customary international
law.
❖ states do not typically react to each and every exercise of jurisdiction by other states. Generally, it is only a state with a
competing jurisdictional claim, or some direct interest in the person or subject matter, that is likely to object to the exercise of
jurisdiction. Objections may also not be based solely on what international law permits or prohibits, if at all, and may reflect
other considerations
 Difficulties in identifying jurisdictional rules
The problem of state practice and opinio juris
❖ states do not typically react to each and every exercise of jurisdiction by other states. Generally, it is only a state with a
competing jurisdictional claim, or some direct interest in the person or subject matter, that is likely to object to the exercise of
jurisdiction. Objections may also not be based solely on what international law permits or prohibits, if at all, and may reflect
other considerations.
when states do object, they may do so based on a misunderstanding of the basis of jurisdiction, intentional or otherwise.
• Eg African states have complained vehemently about the alleged abuse of the principle of universal jurisdiction by European
states. However, closer consideration reveals that many of the exercises of jurisdiction complained about were not in fact based
on universal jurisdiction, but rather on more widely accepted principles of jurisdiction.
 State jurisdiction under South African law
State jurisdiction under South African law
• In the absence of a definitive position, it is up to states in practice to decide which construction of jurisdiction – permissive or
restrictive – to follow.
• Initially South Africa was willing to extend its laws beyond its territory in line with the permissive approach. In 1946, the
Appellate Division noted that ‘the general principle that a state will only punish crimes committed within its own territory or
by its own subjects is not universally admitted’. Then, albeit in unique circumstances, South Africa extended its laws to the
territory of the former South West Africa, which, while not recognised by South Africa as a sovereign state at the time, was still
outside the Republic.
• Since 1994, the Constitutional Court appears to have adopted the restrictive approach to the exercise of jurisdiction
extraterritorially on a number of occasions. First, in Kaunda and Others v President of the Republic of South Africa, the
Constitutional Court noted that Lotus ‘has been criticised by a substantial number of authorities and found that ‘when the
application of a national law would infringe the sovereignty of another state, that would ordinarily be inconsistent with and not
sanctioned by international law’. See also S v Basson.
• Two statutes provide for a permissive approach granting SA courts ‘extraterritorial’ jurisdiction. First (the Prevention and
Combating of Corrupt Activities Act 12 of 2004, and the Criminal Law (Sexual Offences and Related Matters) Amendment Act
32 of 2007) which provide for such jurisdiction to be exercised over conduct that does not fall under the exceptions provided
for under the restrictive approach to jurisdiction. By implication, this supports the permissive approach to jurisdiction, in terms
of which ‘in the absence of a rule in international law to the contrary, a state may do whatever it pleases’.
 The six bases of jurisdiction
The principle of territoriality
In terms of the principle of territoriality, all crimes committed (or alleged to have been committed) within the
territorial jurisdiction of a state may come before the municipal courts and the accused if convicted may be sentenced.
This is the case even when the offenders are foreign citizens. This principle is ‘universally recognized’, and, as a
matter of practice, states routinely assert jurisdiction over criminal acts that occur within their territory and over the
persons responsible for such acts.
There are some circumstances where it is difficult to determine whether a crime took place within the territory of the
state attempting to exercise jurisdiction over it. Eg crimes which are not committed wholly within the territory of a
single state. Two approaches to resolve the jurisdictional issue:
The subjective approach, ie 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. This is termed the initiatory theory.
The objective approach, or the terminatory theory ie a state is able to exercise jurisdiction if an offence objective is
completed on its territory, regardless of where the offence is initiated.
• South African courts have adopted the subjective approach to territorial jurisdiction eg S v Basson, the
Constitutional Court found that South Africa had jurisdiction over an alleged conspiracy entered into in South
Africa, even though the crimes themselves were committed in Namibia.
 The six bases of jurisdiction
The nationality principle
In terms of the nationality principle, a state may choose to exercise jurisdiction over crimes committed abroad (that is,
extraterritorial jurisdiction) when they are committed by nationals of that state. The link or connecting factor between
the state and the conduct in question is the nationality of the perpetrator. Justification is found in the concept of
sovereignty and nationality.
Also within state practice, there is a division between common and civil law countries in relation to the crimes over
which nationality jurisdiction is exercised. Generally speaking, states with a legal system based on the civil law model
exercise this form of extraterritorial criminal jurisdiction regularly, while states of the common law legal tradition
often limit the exercise of this jurisdictional ground to certain ‘serious’ crimes. The United Kingdom, for example,
limits this kind of jurisdiction to treason, murder, bigamy, as well as international crimes.
• South Africa, for the most part, follows the common law approach, and restricts its exercising of nationality
jurisdiction to a limited category of serious offences ie treason crimes against humanity, genocide and war crimes,
terrorism and related offences; corruption; certain sexual offences; and human traffickings.
Passive personality
In terms of the passive personality principle, a state may choose to exercise jurisdiction over extraterritorial crimes
committed, or intended to be committed, against their nationals (and in some instances their ordinary residents). The
link between the state and the conduct in question is the nationality of the victim of the crime in question.
South Africa’s recently adopted legislation concerning crimes against humanity, genocide and war crimes; terrorism
and related offences; corruption; certain sexual offences; and human trafficking provides for passive personality
jurisdiction over such offences.
 The six bases of jurisdiction
The protective principle
The protective jurisdiction is concerned with the special interest of a state that is affected or prejudiced by the crime in question.
In principle, these interests are generally security-related, and the crimes are those such as espionage or broadcasting dangerous
propaganda. The principle also extends offences related to the seals, currency instruments of credit, stamps, passport, and public
documents issued by states.
The effects principle
• In terms of this principle, a state has jurisdiction to prescribe law with respect to … conduct outside its territory that has or is
intended to have substantial effect within its territory. Scholars have argued that the effects principle is an extension of objective
territorial jurisdiction so as to include ‘not only where the crime is completed, but where its effect is felt. An alternative
interpretation is that it is an extension of the already tenuous protective principle. However, the interest protected need not
necessarily be security-related, but could include economic interests.
South Africa has adopted a version of this principle in the Protection of Constitutional Democracy Against Terrorist and Related
Activities Act, which criminalises ‘any act committed in or outside the Republic, which … causes any major economic loss or
extensive destabilisation of an economic system or substantial devastation of the national economy of a country.
 The six bases of jurisdiction
The Universal principle (By far the most controversial exercise of extraterritorial jurisdiction)
• The universal jurisdiction is criminal jurisdiction based solely on the nature of the crime, without regard to where the crime
was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to
the state exercising such jurisdiction.
Universal jurisdiction ‘means that there is no link of territoriality or nationality between the State and the conduct or offender,
nor is the State seeking to protect its security or credit’. A more precise definition is offered by O’Keefe, who defines it as ‘the
assertion of jurisdiction to prescribe in the absence of any other accepted jurisdictional nexus at the time of the relevant conduct.
South African statutes provide for universal jurisdiction to be exercised over a number of offences, including crimes against
humanity, genocide and war crimes; terrorism and related offences; corruption; certain sexual offences; and human trafficking.
 Specialised jurisdiction regimes
It concerns situations whereby human activity moves beyond the ordinary boundaries of states. The question of who has
jurisdiction over such activity arises.
Law of the sea
The territories of the coastal states only extend to the outer limits of the territorial sea, which are at most 12 nautical miles from
the baselines. foreign ships have the right of innocent passage through the territorial sea without entering the internal waters of a
state. The state may not take any steps on board to arrest any person or to conduct any investigation in connection with any
crime committed before the ship entered the territorial sea’, except with respect to violations of laws and regulations applying in
the exclusive economic zone (EEZ) or the protection and preservation of the marine environment.
However, in the case of a crime committed on board the ship during its passage, the coastal state may exercise its criminal
jurisdiction:
• if the consequences of the crime extend to the coastal State
• if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea
• if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular
officer of the flag State
• or if that exercise is necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.
The fact that the territories of coastal states do not extend beyond the outer limits of the territorial sea means that jurisdiction
cannot be based on territoriality beyond those limits. Indeed, most of the world’s oceans were, until recently, part of the high
seas, over which no state was allowed to validly purport to claim sovereignty.
 Specialised jurisdiction regimes
Law of the sea
The fact that the territories of coastal states do not extend beyond the outer limits of the territorial sea means that jurisdiction
cannot be based on territoriality beyond those limits. Indeed, most of the world’s oceans were, until recently, part of the high
seas, over which no state was allowed to validly purport to claim sovereignty.
States could, in most parts of the oceans, exercise the freedom of the high seas, which comprises, inter alia, the freedom of
navigation, the freedom of overflight, the freedom to lay submarine cables and pipelines, the freedom to construct artificial
islands and other installations permitted under international law, the freedom of fishing, and the freedom of scientific research.
• However, states used nationality of the ship (reflected by the flag that the ship is entitled to fly) and not the nationality of the
individuals on the ship.as the basic jurisdictional ground.
• Eg A warship that encounters a foreign ship on the high seas may exercise the enforcement jurisdiction of its state by
boarding the ship if there is reasonable ground for suspecting that the ship is engaged in piracy, the slave trade or
unauthorised broadcasting. Another exception is the right of ‘hot pursuit’, which allows a state to continue exercising its
enforcement jurisdiction despite the fact that the ship pursued has moved into a maritime zone where the state no longer
otherwise has a basis for exercising that jurisdiction. Finally, states are obviously free to allow other states to exercise their
jurisdiction over ships flying their flags.
• Under customary international law it is accepted that ships in distress are entitled to enter the harbour of a foreign state or
other place of refuge. In such instances, the coastal state is prevented from exercising jurisdiction over persons on board such
a vessel.
 Specialised jurisdiction regimes
Antarctic law
Climatic conditions in Antarctica are such that it is not permanently inhabited and, for this reason, it was initially regarded as a
terra nullius open to acquisition by states. Seven states have indeed laid claims to sectors of the continent, leaving however one
substantial section of the continent unclaimed. Three of those claims overlap and the legality of all the claims is contested by
most countries. The continent’s legal regime is based on the Antarctic Treaty, which was signed in 1959 by 12 states, including
South Africa, and came into force in 1961.
In terms of the Antarctic Treaties Act 60 of 1996, South Africa exercises jurisdiction over specified offences committed in the
area south of 60° south latitude with regard to:
• South African citizen
• persons who are not South African citizens, but are ordinarily resident in South Africa, unless those persons are on board a
ship, vessel or aircraft that is operating, whether exclusively or not, in support of an expedition organised by the government
of another contracting party to any of the Antarctic international instruments, or those persons are citizens of another
contracting party, and they are in the area for the purpose of exercising their functions, whether as inspectors, observers or
other officials or exchange scientists contemplated in the instruments;
• citizens of another contracting party, if the immunity of those persons has been waived by that party;
• all persons, whether South African citizens or not, who are members of, or responsible for organising, an expedition that has
been organised in South Africa to visit Antarctica, but not an expedition organised by the government of another contracting
party; and
• companies, close corporations or other juristic persons registered as such in terms of the laws of South Africa, operating or
using any ship, vessel or aircraft registered in South Africa.
 Specialised jurisdiction regimes
Air and space law
Civil aviation is largely regulated by multilateral conventions such as the 1944 Chicago Convention on International Civil
Aviation to which South Africa is a party and which is incorporated into South African law by means of the Civil Aviation Act
13 of 2009. The Chicago Convention provides, inter alia, for the following general principles:
• Every state has complete and exclusive sovereignty over the airspace above its territory.
• The territory of a state shall be deemed to be the land areas and territorial waters thereto under the
• sovereignty, suzerainty, protection or mandate of such state.
• The Convention shall be applicable only to civil aircraft, and shall not be applicable to state aircraft.
• No state aircraft of a contracting state shall fly over the territory of another state or land thereon without authorisation by
special agreement or otherwise.
• ..
 Specialised jurisdiction regimes
Air and space law
• with the advent of the space age, inaugurated by the Soviet Union’s launch of the first artificial satellite ‘Sputnik’ on 4
October 1957. These developments raised the issue of regulating the conduct of states and individuals in outer space,
including the exercise of ‘extraterrestrial jurisdiction’ by states. To this end, in 1961, the UN General Assembly adopted a
resolution declaring that:
• international law, including the Charter of the United Nations, applies to outer space and celestial bodies; and
• outer space and celestial bodies are free for exploration and use by all states in conformity with international law and are not
subject to national appropriation.
This was followed by a 1963 UN General Assembly resolution setting out guiding principles for the exploration and use of outer
space, with the aim of ensuring ‘broad international co-operation in the scientific as well as in the legal aspects of exploration
and use of outer space for peaceful purposes’. For present purposes, these included that ‘[t]he State on whose registry an object
launched into outer space is carried shall retain jurisdiction and control over such object, and any personnel thereon, while in
outer space
The 1967 Space Treaty remains the key international instrument concerning the exercise of state jurisdiction in outer space. As
far as jurisdiction is concerned, article VIII of the Space Treaty states:
A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control
over such object, and over any personnel thereof, while in outer space or on a celestial body
 Immunity from jurisdiction
Antarctic law
• International law may, in certain instances, prevent a court from exercising criminal or civil jurisdiction over foreign states
and their representatives through the principle of immunity. In the Jurisdictional Immunities case, the ICJ concluded on the
basis of proven state practice that the rule of state immunity enjoys international customary law status, which entitles a state
to claim immunity as of right under international law with a corresponding obligation on the part of other states to respect and
give effect to that immunity.