“Sovereignty in the relations between ● The territoriality principle holds

States signifies independence. that a state has jurisdiction over

Independence in regard to a portion of all acts, whether criminal or not,
the globe is the right to exercise committed on its territory
over and
therein, to the exclusion of any other everyone
located on the territory of that
State, the functions of a State” (Island state. Subject to limitations
of Palmas case) imposed under human rights
law, a state can legislate as it
Jurisdiction to prescribe pleases on whatever matter it
● The jurisdiction to prescribe so desires on its own territory.
relates to the authority of a
state to apply its national laws ● ‘Territory’ includes not only
to any individual, property or territory on land but also the
event no matter where they territorial sea and the airspace
may be located or occur above the land and sea territory
● A state is not generally entitled What does it mean that an act is
to exercise prescriptive committed or occurs on the territory
jurisdiction over an individual or of a state?
a particular matter if it is not
somehow affected or deemed to - Often, a sequence of events that
have a reasonable interest in so cause an effect does not occur
doing wholly within one state. A
criminal offense, for example,
● There must be some sort of real may often be initiated or
link—a ‘connecting factor’— planned in one state but
between the acts or the committed in another.
behavior that the state wants to
prescribe and the legitimate
interests of the state. In most
cases, of course, it is unlikely Two approaches to deal with
that a state will take steps to ‘cross-border’ activities
prescribe acts it does not have
any interest in. ‘Objective territoriality’ - focuses on the
effects of an offense and holds that a
● The power to prescribe is have jurisdiction over an
state
asserted according to five offense
principles:
principles of territoriality, wil that
nationality, passive personality, lcompleted on its is even though
territory some
protective jurisdiction, and sovereignty.
universal jurisdiction.

1. Territorial jurisdiction

● The most basic and

uncontroversial basis of
jurisdiction is the principle of
territoriality derived from state
of the elements of the offense
took place abroad.

‘Subjective territoriality’, on the

other hand, stipulates that a
state has jurisdiction
a over all acts that are completed
s long as they are initiated or abroad
planned on the territory of the
state in question. The subjective
approach is of great practical
importance in fighting
transnational crime, such as
international cybercrime
Example: The 11 September 2001 ● If an individual has dual nationality,
terrorist attacks in the United States. both states of nationality may
As the attacks were completed on US assert jurisdiction on the
territory, the Americans had basis of
jurisdiction over the attacks on the
basis of objective territoriality. But
since a substantial part of the
planning and preparation of the
attacks occurred elsewhere, most
notably in Afghanistan and Germany,
other states could derive a claim of
jurisdiction on the basis of subjective
territoriality.

*effects doctrine economic

effects
- ‘Any state may impose
liabilities, even upon persons
not within its allegiance, for
conduct outside its borders that
has consequences within its
borders which the state
reprehends; and these liabilities
other states will ordinarily
recognize’.

**In the 1993 Wood Pulp case, the

(then) European Court of Justice
accepted legislative jurisdiction on the
basis of what were essentially local
effects/consequences of foreign
conduct.

2. Jurisdiction on the basis of

nationality

States may extend their laws to their

own nationals regardless of where
they are located.

“active personality’ principle”

● States have a legitimate
interest in the behavior of their
own citizens abroad and since
they are reluctant to extradite
their nationals to criminal
prosecution in other states,
preventing impunity for serious
offenses occasionally requires
the state of nationality to
prosecute its own nationals for
crimes they have committed
abroad.
 nationality. States are ● Serves as a subsidiary means of
generally free to decide who jurisdiction in the sense that it
they consider to be their is only asserted when the state
‘nationals’ and under what in which the offense occurred
circumstances an individual does not intend to prosecute
qualifies for citizenship. the offender.

● In the Nottebohm case,

however, the International Court
of Justice (ICJ) stated that the
exercise of rights associated with
nationality may be challenged by
other states and that nationality
connotes a ‘genuine
connection’ with the state that
seeks to protect the rights of
its citizens

‘passive personality’ principle

● a state can assert its
jurisdiction over an offense
committed abroad on the
sole ground that the victim
of the offense was a national
of the state.

● The passive personality

principle makes it practically
impossible for a potential
offender to anticipate which
state’s laws he or she may
be subjected to and it
creates uncertainty about
acceptable behavior within a
state.

● This is accepted in the

context of international
terrorism.

● Jurisdiction on the basis of

passive personality ought to
be limited to serious
offences (e.g. crimes of
terrorism) that are
prescribed in all states. This
ensures that a state does
not prosecute an individual
for a crime that was lawful in
the territory where it was
committed and that
potential offenders will know
that their conduct
constitutes a serious crime.
 (Since pirates roamed the high seas
outside the territorial jurisdiction of any state
3. Protective jurisdiction prejudicial to its it made good practical sense to allow all
security states to prosecute any pirate they could get
● “Protective principle” holds their hands on and customary law thus
that a established a right for all states to assert
state may extend its jurisdiction universal prescriptive jurisdiction over the
over crime)
any matter that has a
deleterious
● Universal jurisdiction was
effect on it regardless of where
the thereby created to fulfill a
acts occur or who has committed potential jurisdictional vacuum.
it.
Protective jurisdiction is derived ● Universal jurisdiction is mostly
from the sovereign right of all applied in order to prevent
states to conduct their affairs impunity for perpetrators of
without outside interference. particularly serious offenses.

● The exercise of protective 1961 Eichmann trial in Israel:

jurisdiction does require the As justification for prosecuting
existence of a genuine threat to a Eichmann under an Israeli law that
vital state interest and it must gave Israeli courts jurisdiction to
not, therefore, be confused with prosecute crimes committed outside
the controversial effect doctrine Israel at a time when the State of
visited earlier whereby a state Israel had not yet been established,
extends its laws to acts that the court stated that the ‘abhorrent’
merely have a negative crimes in question were not just
economic effect in the state. crimes under Israeli law alone.
According to the court:
Example: The prohibition of
falsification or counterfeiting of ‘seals, “These crimes which offended the whole
currency, instruments of credit, of mankind and shocked the conscience
stamps, passports, or public of nations are grave offenses against the
documents’, issued by the state. law of nations itself (‘delicta juris
gentium’). Therefore, so far from
international law negating or limiting the
4. Universal jurisdiction jurisdiction of countries with respect to such
crimes, in the absence of an International
● International law recognizes Court, the international law is in need of the
that certain offenses are so judicial and legislative authorities of every
serious and/or disruptive to country, to give effect to its penal injunctions
international society that any and to bring criminals to trial. The
state may claim jurisdiction jurisdiction to try crimes under international
over them no matter where law is universal”
they have been committed or
by whom. ● Violations of norms of a
peremptory character/jus cogens,
● The lack of a direct link between such as genocide, crimes
the state and the offense against humanity, serious war
makes so-called ‘universal crimes and torture, are the
jurisdiction’ stand out from most serious offences under
other principles of jurisdiction. It international law and therefore
was the crime of piracy that constitute obvious candidates
gave rise to the notion of for being crimes under
universal jurisdiction.
 universa
jurisdiction even in the committed and the nationality of the
l offender. The alleged offender is
absenceof a treaty-based physically present in the state.
entitlement.

● universal jurisdiction is
asserted in at least two
situations:

1. Universal jurisdiction in absentia-

The first and ‘purest’ form
where a state asserts
universal jurisdiction
despite the fact that the alleged
offender is not even present on its
territory.

*In the Arrest Warrant case, the

Democratic Republic of Congo (DRC)
brought a case against Belgium
because Belgian authorities had
issued an arrest warrant for the arrest
of the acting minister of foreign affairs
in the DRC pursuant to the new
legislation. The DRC claimed that the
Belgian legislation violated
international law. The case was
ultimately decided on the basis of
immunity. But some of the judges also
discussed the compatibility of this
form of universal jurisdiction with
international law. Their disagreement
was noticeable
*The fight to end impunity for
serious violations of international law
speaks in favor of accepting even the
purest form of universal jurisdiction as
a basis for jurisdiction.

2. The second and more limited

form of universal jurisdiction is
tied to the obligation of a state
in an increasing number of
treaties to either prosecute or
extradite—aut dedere aut
judicare—an alleged offender of
specific offenses who is located
on the territory of that state.

*The obligation requires a state

to extend its prescriptive jurisdiction
to certain individuals suspected of
committing enumerated offenses
regardless of where the offense is
 *Since the legal basis for the considerable international friction
obligation to prosecute or extradite and it is therefore somewhat
is generally a treaty, non-state unfortunate that states are not
parties are not obliged to assert under a legal obligation to
their (universal) jurisdiction over exercise their
the offense in question.

Concurring/overlapping jurisdictions

● Since states can rely on a

number of principles in order
to assert jurisdiction to
prescribe a given person or
matter, it is not uncommon
for more than one state to
be entitled to claim
jurisdiction in a given case.

Example: If, say, a citizen of

state A kills citizens of state B on
the territory of state C,
international law may potentially
entitle all three states to assert
jurisdiction over the offense.

- State A may assert jurisdiction

on the basis of the offender’s
nationality;
- State C may rely on the principle
of territoriality and the fact that
the offense was committed on its
territory.
- Depending on the
circumstances, state B could
also be entitled to assert
jurisdiction on the basis of the
nationality of the victims (at least
to the extent that the offence in
question could be characterized
as an act of terrorism).

● The principle of universality

may also entitle all states to
exercise jurisdiction over an
offense irrespective of a link
between those states and
the crime.

● The issue of concurrent

jurisdiction and the
simultaneous exercise of
jurisdiction by more than
one state over the same
matter may give rise to
 jurisdictionin a ● The 1963 Tokyo Convention on
particularly Offenses and Certain Other Acts
reasonable manner. Committed on Board Aircraft -
specifies that the state of
● In a Separate Opinion in registration of an aircraft has
Barcelona Traction before the authority to apply its laws to
ICJ, Judge Fitzmaurice noted matters that occur on board its
that states are obliged ‘to aircraft while in flight regardless
exercise moderation and restraint as of where it is located. It also
to the extent of the jurisdiction establishes the general rule that a
assumed by its courts in cases contracting state which is not the
having a foreign element, and to state of registration may not
avoid undue encroachment on a interfere with an aircraft in flight
jurisdiction more properly exercised in order to exercise its criminal
by another state’. jurisdiction over an offense
committed on board
● The territorial state will claim
that it has the closest link to a ● The Tokyo Convention -
particular offense and therefore provides the aircraft
has a more privileged position commander (the captain) with
compared to states with the authority to use reasonable
‘competing’ claims of force to deal with individuals
jurisdiction. who have committed or are
about to commit a crime or acts
● It will be the state with physical that may jeopardize safety on
custody of the offender that board the aircraft.
determines which state will
exercise jurisdiction over the **In cases of hijacking of an
individual. The principle aut aircraft, contracting states are obliged
dedere aut judicare can be to ‘take all appropriate measures to
perceived as a principle of restore control of the aircraft to its
resolving a potential lawful commander or to preserve his
jurisdictional dispute. control of the aircraft’
**The Tokyo Convention’s
** Principle of comity regulation on the prevention of
- suggests that a state should limit hijacking has since been
the reach of its laws and defer supplemented by numerous other
to other states if those states conventions including the 1970 Hague
have a stronger link to a Convention for the Suppression of
situation. Unlawful Seizure of Aircraft according
to which, as we saw earlier,
Jurisdiction over aircraft and ships contracting states are obliged to
extradite or prosecute hijackers.
Jurisdiction over a state’s airspace and
aircraft is regulated in a number of
conventions: Jurisdiction to enforce
● 1944 Chicago Convention on (**Link to P.D. No. 1069, Philippine
International Civil Aviation- Extradition Law
stipulates that all states have https://lawphil.net/statutes/presdecs/pd
complete and exclusive 1977
sovereignty over the airspace /pd_1069_1977.html)
above their territory, including
the airspace over their ● As the PCIJ stated in the Lotus
territorial waters case, the ‘first and foremost
restriction imposed by
international law upon a
state is that— failing the
 existence of a permissive rule to the ● Most states follow the maxim of
contrary—it may not exercise its mala captus, bene detentus
power in any form in the territory of whereby a state can try an
another State’. Unless the individual even if the state
territorial state gives its consent, believes that the defendant was
a state cannot enter another state brought there by irregular
in order to secure the arrest of an means.
alleged offender or confiscate
stolen property. **In the Eichmann case
● In criminal law, the practical - A well-known case was
problems associated with the Israeli agents’
prohibition against physical apprehension and
enforcement in other states are subsequent transfer in
solved by extradition where a 1960 from Argentina to
state hands over an individual Israel of the former high-
located on its territory who is ranking Nazi officer
wanted for criminal prosecution Adolph Eichmann. In
in another state. Israel, Eichmann was
convicted and executed
● All extraditions are generally for atrocities committed
governed by a number of during the Second World
principles: War. The UN Security
Council responded to the
1. ‘Double criminality’ - stipulates unlawful Israeli incursion
that the offense involved must into Argentina by
be a criminal offense in both requesting Israel to offer
states concerned. compensation.
2. ‘Double jeopardy’ (ne bis in
idem) - specifies that an - The District Court of
individual should not be Jerusalem stated that a
punished twice for the same state must only abstain
offense. from prosecution if the
defendant is tried for an
**Extraditing states are bound by offense different from
obligations in human rights that for which he or she
conventions. The most important of was extradited.
these is the obligation not to extradite
an individual to another state if there SUMMARY:
is a risk that the individual may be
subjected to inhuman or degrading ● In international law, jurisdiction
treatment in the receiving country or is concerned with the authority
in a third state to which the individual of a state to exert its influence
may subsequently be transferred. and power over individuals or
property.
● In its Draft Convention on
Jurisdiction with Respect to ● The rules can be divided into
Crime, Harvard Research in three forms of jurisdiction:
International Law stipulated jurisdiction to prescribe,
that a state should refrain from jurisdiction to enforce and
prosecuting an individual brought jurisdiction to adjudicate. The
into the state through measures that purpose of the rules is to strike
violated international law. a balance between the rights of
a sovereign state to exert its
influence on matters of
interest to it and the
interests of other sovereign
states that may be at
risk of undue
 encroachments on their own
right to conduct their affairs as
they please.

● International law generally

operates with five bases for the
exercise of prescriptive
jurisdiction. These are
jurisdictions on the basis of
territoriality, nationality,
universality, protective
principles and so-called passive
personality.

● passive personality—is
particularly controversial.
International law prohibits a
state from physically enforcing
its jurisdiction on the territory of
another state unless the latter
gives its consent.