STATE JURISDICTION

TRẦN HỮU DUY MINH – KHOA LUẬT QUỐC TẾ, HỌC VIỆN NGOẠI GIAO
Email: minh.thd@dav.edu.vn
Telegram: 0983070832
 CONTENT

1. Definition of ‘jurisdiction’
2. Principles providing the legal basis for a state to
establish its jurisdiction
 ‘Jurisdiction’
 James Crawford: “Jurisdiction is an aspect of
sovereignty: it refers to a state’s competence
under international law to regulate the conduct of
natural or juridical persons.”
 Includesall activities of all branches: legislative,
executive and judicial.
➔ prescriptive, enforcement, and adjudicative
jurisdiction
 ‘Jurisdiction’
 James Crawford: “Jurisdiction is an aspect of
sovereignty.”
 Sovereign equality => conflict of jurisdiction
between states.
 International law on state jurisdiction: principles
providing a State the legal basis to establish its
jurisdiction.
 Principles

1. Territoriality principle
2. Nationality principle (personality)
3. Universality principle
 1. Territoriality Principle
 Genuine link: territory and persons/acts
 A state has jurisdiction over all persons and acts
within its territory.
 “territory
of a State”?
 Exception?

 Objective territorial principle: state where acts

complete.
 Subjective territorial principle: jurisdiction over
acts commencing within the state
 1. Territoriality Principle

 Limitedterritorial jurisdiction: jurisdictional

zones of the sea i.e. EEZ

 Vacuum of territorial jurisdiction: high sea

or Area.
 2. Nationality Principle

 Genuine link: Natural and juridical persons and

their national states.
 ‘Active personality principle’
 ‘Passive personality principle’

 How to determine the nationality of a natural

person, a legal person, a ship or an aircraft?
Nationality of a natural person
 Nottebohm case (p. 23):

“… nationality is a legal bond having as its

basis a social fact of attachment, a genuine
connection of existence, interests and
sentiments, together with the existence of
reciprocal rights and duties.”
“… international law leaves it to each State
to lay down the rules governing the grant of
its own nationality.”
Nationality of a natural person
 ILC’s Draft articles on Diplomatic Protection
(2006), Article 4:
 “For the purposes of the diplomatic protection of
a natural person, a State of nationality means a
State whose nationality that person has acquired,
in accordance with the law of that State, by birth,
descent, naturalization, succession of States or in
any other manner, not inconsistent with
international law.”
 Nationality of a legal person
 ILC’s Draft articles on Diplomatic Protection (2006),
Article 9:
 “For the purposes of the diplomatic protection of a
corporation, the State of nationality means the State
under whose law the corporation was incorporated.
However, when the corporation is controlled by
nationals of another State or States and has no
substantial business activities in the State of
incorporation, and the seat of management and the
financial control of the corporation are both located
in another State, that State shall be regarded as the
State of nationality.”
 Nationality of a ship
 UNCLOS (1982), Article 91(1) – “Nationality
of ships”
“Every State shall fix the conditions for the
grant of its nationality to ships, for the
registration of ships in its territory, and for
the right to fly its flag. Ships have the
nationality of the State whose flag they are
entitled to fly. There must exist a genuine
link between the State and the ship.”
 Nationality of an aircraft
 Chicago Convention on International Civil
Aviation (1944):
Art.17: “Aircraft have the nationality of the
State in which they are registered.”
Art. 19: “An aircraft cannot be validly
registered in more than one State, but its
registration may be changed from on State
to another.”
 3. Universality Principle
 Genuine link: the nature of an act and the
whole community of states.
 Piracy, slavery, war crimes, or genocide.
 All states have jurisdiction to try persons
alleged to commit these acts.
 3. Universality Principle
 UNCLOS (1982), Article 105:
 “On the high seas, or in any other place outside
the jurisdiction of any State, every State may
seize a pirate ship or aircraft, or a ship or
aircraft taken by piracy and under the control of
pirates, and arrest the persons and seize the
property on board. The courts of the State
which carried out the seizure may decide
upon the penalties to be imposed, and may also
determine the action to be taken with regard to
the ships, aircraft or property, subject to the
rights of third parties acting in good faith.”
 3. Universality Principle
 Convention against Torture (1984),
Article 5(2):
“Each State Party shall likewise take
such measures as may be necessary
to establish its jurisdiction over such
offences in cases where the alleged
offender is present in any territory
under its jurisdiction …”
4. Protective or security principle

 Genuine link: acts and state possibly

injured by such acts
 Injuries to national security or welfare of
states
 ‘effect’ doctrine= a variant of territoriality
principle or protective principle
Freedom to adopt the principles
 The Lotus case (PCIJ):

“State remains free to adopt the

principles which it regards as best and
most suitable… all that can be required of a
state is that it should not overstep the limits
which international law places upon its
jurisdiction; within theses limits, its title to
exercise jurisdiction rests in its
sovereignty.”
 In sum,
 Principles → the legal basis for a state to
establish its jurisdiction.
 Territoriality and nationality principles wider
accepted.
 Universality principles: limits in certain
international crimes.
 Protective or security principle + ‘effect’
doctrine: not widely accepted.