“Sovereignty in the relations between States ● The territoriality principle holds that a

signifies independence. Independence in state has jurisdiction over all acts,

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

● The power to prescribe is asserted ‘Objective territoriality’ - focuses on the

according to five principles: effects of an offense and holds that a state
principles of territoriality, will have jurisdiction over an offense that is
nationality, passive personality, completed on its territory even though some
protective jurisdiction, and of the elements of the offense took place
universal jurisdiction. abroad.

‘Subjective territoriality’, on the other

1. Territorial jurisdiction hand, stipulates that a state has jurisdiction
over all acts that are completed abroad as
● The most basic and uncontroversial long as they are initiated or planned on the
basis of jurisdiction is the principle of territory of the state in question. The
territoriality derived from state subjective approach is of great practical
sovereignty. importance in fighting transnational crime,
such as international cybercrime
Example: The 11 September 2001 terrorist nationality. States are generally free
attacks in the United States. As the attacks to decide who they consider to be
were completed on US territory, the their ‘nationals’ and under what
Americans had jurisdiction over the attacks circumstances an individual qualifies
on the basis of objective territoriality. But for citizenship.
since a substantial part of the planning and
preparation of the attacks occurred ● In the Nottebohm case, however,
elsewhere, most notably in Afghanistan and the International Court of Justice
Germany, other states could derive a claim (ICJ) stated that the exercise of
of jurisdiction on the basis of subjective rights associated with nationality
territoriality. may be challenged by other states
and that nationality connotes a
*effects doctrine economic effects ‘genuine connection’ with the
state that seeks to protect the
- ‘Any state may impose liabilities, rights of its citizens
even upon persons not within its
allegiance, for conduct outside its ‘passive personality’ principle
borders that has consequences ● a state can assert its jurisdiction
within its borders which the state over an offense committed abroad
reprehends; and these liabilities on the sole ground that the victim of
other states will ordinarily recognize’. the offense was a national of the
state.
**In the 1993 Wood Pulp case, the (then)
European Court of Justice accepted ● The passive personality principle
legislative jurisdiction on the basis of what makes it practically impossible for a
were essentially local effects/consequences potential offender to anticipate which
of foreign conduct. state’s laws he or she may be
subjected to and it creates
uncertainty about acceptable
2. Jurisdiction on the basis of behavior within a state.
nationality
● This is accepted in the context of
States may extend their laws to their own international terrorism.
nationals regardless of where they are
located. ● Jurisdiction on the basis of passive
personality ought to be limited to
“active personality’ principle” serious offences (e.g. crimes of
● States have a legitimate interest in terrorism) that are prescribed in all
the behavior of their own citizens states. This ensures that a state
abroad and since they are reluctant does not prosecute an individual for
to extradite their nationals to criminal a crime that was lawful in the
prosecution in other states, territory where it was committed and
preventing impunity for serious that potential offenders will know
offenses occasionally requires the that their conduct constitutes a
state of nationality to prosecute its serious crime.
own nationals for crimes they have
committed abroad. ● Serves as a subsidiary means of
jurisdiction in the sense that it is only
● If an individual has dual nationality, asserted when the state in which the
both states of nationality may assert offense occurred does not intend to
jurisdiction on the basis of prosecute the offender.
 (Since pirates roamed the high seas
outside the territorial jurisdiction of any state
3. Protective jurisdiction prejudicial to its security it made good practical sense to allow all
states to prosecute any pirate they could get
● “Protective principle” holds that a their hands on and customary law thus
state may extend its jurisdiction over established a right for all states to assert
any matter that has a deleterious universal prescriptive jurisdiction over the
effect on it regardless of where the crime)
acts occur or who has committed it.
Protective jurisdiction is derived from ● Universal jurisdiction was thereby
the sovereign right of all states to created to fulfill a potential
conduct their affairs without outside jurisdictional vacuum.
interference.
● Universal jurisdiction is mostly
● The exercise of protective applied in order to prevent impunity
jurisdiction does require the for perpetrators of particularly
existence of a genuine threat to a serious offenses.
vital state interest and it must not,
therefore, be confused with the 1961 Eichmann trial in Israel:
controversial effect doctrine visited As justification for prosecuting Eichmann
earlier whereby a state extends its under an Israeli law that gave Israeli courts
laws to acts that merely have a jurisdiction to prosecute crimes committed
negative economic effect in the outside Israel at a time when the State of
state. Israel had not yet been established, the
court stated that the ‘abhorrent’ crimes in
Example: The prohibition of question were not just crimes under Israeli
falsification or counterfeiting of ‘seals, law alone. According to the court:
currency, instruments of credit, stamps,
passports, or public documents’, issued by “These crimes which offended the whole
the state. of mankind and shocked the conscience
of nations are grave offenses against the
law of nations itself (‘delicta juris
4. Universal jurisdiction gentium’). Therefore, so far from
international law negating or limiting the
● International law recognizes that jurisdiction of countries with respect to such
certain offenses are so serious crimes, in the absence of an International
and/or disruptive to international Court, the international law is in need of the
society that any state may claim judicial and legislative authorities of every
jurisdiction over them no matter country, to give effect to its penal injunctions
where they have been committed or and to bring criminals to trial. The
by whom. jurisdiction to try crimes under international
law is universal”
● The lack of a direct link between the
state and the offense makes ● Violations of norms of a
so-called ‘universal jurisdiction’ peremptory character/jus cogens,
stand out from other principles of such as genocide, crimes against
jurisdiction. It was the crime of piracy humanity, serious war crimes and
that gave rise to the notion of torture, are the most serious
universal jurisdiction. offences under international law and
therefore constitute obvious
candidates for being crimes under
 universal jurisdiction even in the *Since the legal basis for the
absence of a treaty-based obligation to prosecute or extradite is
entitlement. generally a treaty, non-state parties are not
obliged to assert their (universal) jurisdiction
● universal jurisdiction is asserted in over the offense in question.
at least two situations:

1. Universal jurisdiction in absentia- Concurring/overlapping jurisdictions

The first and ‘purest’ form where a
state asserts universal ● Since states can rely on a number of
jurisdiction despite the fact that principles in order to assert
the alleged offender is not even jurisdiction to prescribe a given
present on its territory. person or matter, it is not uncommon
for more than one state to be entitled
*In the Arrest Warrant case, the to claim jurisdiction in a given case.
Democratic Republic of Congo (DRC)
brought a case against Belgium because Example: If, say, a citizen of state A
Belgian authorities had issued an arrest kills citizens of state B on the territory of
warrant for the arrest of the acting minister state C, international law may potentially
of foreign affairs in the DRC pursuant to the entitle all three states to assert jurisdiction
new legislation. The DRC claimed that the over the offense.
Belgian legislation violated international law.
The case was ultimately decided on the - State A may assert jurisdiction on
basis of immunity. But some of the judges the basis of the offender’s
also discussed the compatibility of this form nationality;
of universal jurisdiction with international - State C may rely on the principle of
law. Their disagreement was noticeable territoriality and the fact that the
*The fight to end impunity for serious offense was committed on its
violations of international law speaks in territory.
favor of accepting even the purest form of - Depending on the circumstances,
universal jurisdiction as a basis for state B could also be entitled to
jurisdiction. assert jurisdiction on the basis of the
nationality of the victims (at least to
the extent that the offence in
2. The second and more limited form of question could be characterized as
universal jurisdiction is tied to the an act of terrorism).
obligation of a state in an increasing
number of treaties to either ● The principle of universality may
prosecute or extradite—aut dedere also entitle all states to exercise
aut judicare—an alleged offender of jurisdiction over an offense
specific offenses who is located on irrespective of a link between those
the territory of that state. states and the crime.

*The obligation requires a state to ● The issue of concurrent jurisdiction

extend its prescriptive jurisdiction to certain and the simultaneous exercise of
individuals suspected of committing jurisdiction by more than one state
enumerated offenses regardless of where over the same matter may give rise
the offense is committed and the nationality to considerable international
of the offender. The alleged offender is friction and it is therefore somewhat
physically present in the state. unfortunate that states are not under
a legal obligation to exercise their
 jurisdiction in a particularly ● The 1963 Tokyo Convention on
reasonable manner. Offenses and Certain Other Acts
Committed on Board Aircraft -
● In a Separate Opinion in Barcelona specifies that the state of registration
Traction before the ICJ, Judge of an aircraft has authority to apply
Fitzmaurice noted that states are its laws to matters that occur on
obliged ‘to exercise moderation and board its aircraft while in flight
restraint as to the extent of the regardless of where it is located. It
jurisdiction assumed by its courts in also establishes the general rule
cases having a foreign element, and that a contracting state which is
to avoid undue encroachment on a not the state of registration may
jurisdiction more properly exercised not interfere with an aircraft in
by another state’. flight in order to exercise its
criminal jurisdiction over an
● The territorial state will claim that it offense committed on board
has the closest link to a particular
offense and therefore has a more ● The Tokyo Convention - provides the
privileged position compared to aircraft commander (the captain)
states with ‘competing’ claims of with the authority to use reasonable
jurisdiction. force to deal with individuals who
have committed or are about to
● It will be the state with physical commit a crime or acts that may
custody of the offender that jeopardize safety on board the
determines which state will exercise aircraft.
jurisdiction over the individual. The
principle aut dedere aut judicare can **In cases of hijacking of an aircraft,
be perceived as a principle of contracting states are obliged to ‘take all
resolving a potential jurisdictional appropriate measures to restore control of
dispute. the aircraft to its lawful commander or to
preserve his control of the aircraft’
** Principle of comity **The Tokyo Convention’s regulation
- suggests that a state should limit the on the prevention of hijacking has since
reach of its laws and defer to other been supplemented by numerous other
states if those states have a stronger conventions including the 1970 Hague
link to a situation. Convention for the Suppression of Unlawful
Seizure of Aircraft according to which, as
Jurisdiction over aircraft and ships we saw earlier, 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- stipulates Extradition Law
that all states have complete and https://lawphil.net/statutes/presdecs/pd1977
exclusive sovereignty over the /pd_1069_1977.html)
airspace 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 individual
another State’. Unless the even if the state believes that the
territorial state gives its consent, defendant was brought there by
a state cannot enter another state irregular means.
in order to secure the arrest of an
alleged offender or confiscate **In the Eichmann case
stolen property.
- A well-known case was
● In criminal law, the practical Israeli agents’ apprehension
problems associated with the and subsequent transfer in
prohibition against physical 1960 from Argentina to Israel
enforcement in other states are of the former high-ranking
solved by extradition where a state Nazi officer Adolph
hands over an individual located on Eichmann. In Israel,
its territory who is wanted for Eichmann was convicted and
criminal prosecution in another state. executed for atrocities
committed during the Second
● All extraditions are generally World War. The UN Security
governed by a number of Council responded to the
principles: unlawful Israeli incursion into
Argentina by requesting
1. ‘Double criminality’ - stipulates that Israel to offer compensation.
the offense involved must be a
criminal offense in both states - The District Court of
concerned. Jerusalem stated that a state
2. ‘Double jeopardy’ (ne bis in idem) - must only abstain from
specifies that an individual should prosecution if the defendant
not be punished twice for the same is tried for an offense
offense. different from that for which
he or she was extradited.
**Extraditing states are bound by obligations
in human rights conventions. The most SUMMARY:
important of these is the obligation not to
extradite an individual to another state if ● In international law, jurisdiction is
there is a risk that the individual may be concerned with the authority of a
subjected to inhuman or degrading state to exert its influence and power
treatment in the receiving country or in a over individuals or property.
third state to which the individual may
subsequently be transferred. ● The rules can be divided into three
forms of jurisdiction: jurisdiction to
● In its Draft Convention on prescribe, jurisdiction to enforce and
Jurisdiction with Respect to Crime, jurisdiction to adjudicate. The
Harvard Research in International purpose of the rules is to strike a
Law stipulated that a state should balance between the rights of a
refrain from prosecuting an sovereign state to exert its influence
individual brought into the state on matters of interest to it and the
through measures that violated interests of other sovereign states
international law. 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.