jurisdiction theories of jurisdiction in international law

JurisdictionTheories of Jurisdiction in International Law

International Jurisdiction

Jurisdiction refers to the power of a state to affect persons, property, and circumstances within its territory.

It may be exercised through legislative, executive, or judicial actions.

International law particularly addresses questions of criminal law and essentially leaves civil jurisdiction to national control.

No state is obligated to exercise its jurisdiction even if international law would raise no objections.

Theories of International Jurisdiction

Territorial PrincipleNational PrinciplePassive Personality PrincipleProtective PrincipleUniversality Principle

Territorial Principle

According to the territorial principle, states have exclusive authority to deal with criminal issues arising within their territories; this principle has been modified to permit officials from one state to act within another state in certain circumstances.


Territorial Principle allows a state to apply its law to:a. Conduct that wholly or in substantial part, takes

place within its territory;b. The status of persons, or interests in things, present

within its territory;c. Conduct outside its territory that has or is intended

to have substantial effect within its territory. Restatement Third § 402 (1)


A state has jurisdiction to adjudicate under the territorial principle if the exercise of jurisdiction is reasonable.

Territorial jurisdiction is exercised regarding conduct outside its territory that has or is intended to have substantial effect within its territory.

Nationality Principle

The nationality principle recognizes that a sovereign can adopt criminal laws which govern the conduct of the sovereign’s nationals while outside of the sovereign’s borders. Under this principle, for example, a sovereign can make it a crime for its nationals to engage is sexual relations with minors while outside of its borders or to pay bribes outside of its borders to public officials of another sovereign.


The nationality principle has the effect of allowing a sovereign to adopt laws that make it a crime for its nationals to engage in conduct that is not illegal in the place where the conduct is performed.

The nationality principle permits a country to exercise criminal jurisdiction over any of its nationals or entities accused of criminal offenses in another state.


For example, under this principle a sovereign could make it a crime for its nationals to gamble. If Bob, one of the sovereign’s nationals goes to Jamaica and gambles, notwithstanding that gambling is perfectly legal in Jamaica, Bob has committed a crime in his country and is subject to prosecution.


The exercise of nationality principle could results in concurrent jurisdiction over a defendant by separate state.

Passive Personality Principle

The passive personality principle recognizes that a sovereign can adopt laws that apply to conduct of foreign nationals who commit crimes against the sovereign’s nationals while the sovereign’s nationals are outside of the sovereign’s territory.

Passive Personality Principle

Jurisdiction on the nationality of the victim-has not been generally accepted for non-terrorist acts that might injure or even kill someone, but in recent years it has been increasingly accepted for acts of organized violence directed specifically against nationals of the regulating state, including diplomats and other public officials.

Protective Principle

The principle permits a state to exercise jurisdiction over certain conduct outside its territory by persons not its nationals that are directed against the security of the state or against a limited class of other state interests.

EspionageCounterfeitingFalsifying documentsOther issues involving the security of the state

Limitations of Jurisdiction

Even when one of the bases for jurisdiction under § 402 is present, a state may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable.


Whether exercise of jurisdiction over a person or activity is unreasonable is determined by evaluating all relevant factors, including, where appropriate:

(a) the link of the activity to the territory of the

regulating state, i.e., the extent to which the activity takes place within the territory, or has substantial, direct, and foreseeable effect upon or in the territory;


(b) the connections, such as nationality, residence, or economic activity, between the regulating state and the person principally responsible for the activity to be regulated, or between that state and those whom the regulation is designed to protect;

(c) the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to which other states regulate such activities, and the degree to which the desirability of such regulation is generally accepted.


(d) the existence of justified expectations that might be protected or hurt by the regulation;

(e) the importance of the regulation to the international political, legal, or economic system;

(f) the extent to which the regulation is consistent with the traditions of the international system;

(g) the extent to which another state may have an interest in regulating the activity; and

(h) the likelihood of conflict with regulation by another state.


When it would not be unreasonable for each of two states to exercise jurisdiction over a person or activity, but the prescriptions by the two states are in conflict, each state has an obligation to evaluate its own as well as the other state's interest in exercising jurisdiction, in light of all the relevant factors, including those set out in Subsection (2); a state should defer to the other state if that state's interest is clearly greater.

Universality Principle

A state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism, even where none of the bases of jurisdiction indicated in § 402 is present.

Universality Principle

The universal principle recognizes that a sovereign can adopt criminal laws that apply to conduct performed by any person any where in the world when the conduct is recognized by nations as being of universal concern.

Extradition

The transfer of an accused from one state or country to another state or country that seeks to place the accused on trial.

Extradition comes into play when a person charged with a crime under state statutes flees the state. An individual charged with a federal crime may be moved from one state to another without any extradition procedures.

Extradition

Article IV, Section 2, of the U.S. Constitution provides that upon the demand of the governor of the prosecuting state, a state to which a person charged with a crime has fled must remove the accused "to the State having Jurisdiction of the Crime."

Extradition

When extraditing an accused from one state to another, states follow the procedures set forth in the Uniform Criminal Extradition Act, which has been adopted by most jurisdictions. A newer uniform act, the Uniform Extradition and Rendition Act, is designed to streamline the extradition process and provide additional protections for the person sought, but by 1995, it had been adopted by only one state.

North Dakota. See N.D. Cent. Code§§29-30.3-01-29-30.3-21 (2007).

Extradition

In some cases, courts considering extradition from one state to another may go beyond the procedural formalities and look at the merits of the criminal charge or at allegations by the accused. Such cases seldom take place because under the U.S. Constitution, states are not given the power to review the underlying charge.

New Mexico ex rel. Ortiz v. Reed, 524 U.S. 151 (1998) (New Mexico refused to return a fugitive to the state of Ohio).

Extradition

The court considering an extradition case can only decide four issues: (1) whether the extradition documents on their face are in order, (2) whether the petitioner has been charged with a crime in the demanding state, (3) whether the petitioner is the person named in the request for the extradition, and (4) whether the petitioner is a fugitive. The New Mexico Supreme Court in Reed determined that the person subject to the extradition, Manuel Ortiz, was not a "fugitive," and refused to honor the extradition order from the state of Ohio. The Supreme Court found that New Mexico courts had overstepped their authority and ordered the New Mexico Supreme Court to return the fugitive.

Extradition & International Relations

Extradition between nations is usually based on a treaty between the country where the accused is currently located and the country seeking to place him or her on trial for an alleged crime.

The United States has entered into extradition treaties with most countries in Europe, Latin America, and with a few countries in Africa and Asia.

Extradition & International Relations

Extradited pursuant to a treaty is based on the language of the particular treaty.

Some treaties list all the offenses for which a person can be extradited, or provide a minimum standard of punishment that renders an offense extraditable.

Doctrine of double criminality

Most treaties require that an offense to be subject to extradition must be a crime in both jurisdictions. This is called the doctrine of double criminality. The requirement of double criminality is met if the particular act charged is criminal in both jurisdictions.

Collins v. Loisel, 259 U.S. 309 (1922).

Doctrine of specialty

The doctrine of specialty is also often applied, meaning that once a person has been surrendered, he can be prosecuted or punished only for the crimes for which extradition was requested, and no other crimes committed prior to the surrender.

United States v. Rauscher, 119 U.S. 407 (1886).

Self Help

International extradition process can be time-consuming and complicated. Some are critical of failures to assist with bringing fugitives to justice. As a result, the United States has turned to abduction to return a fugitive.

Self Help

United States invaded Panama to bring General Manuel Noriega to the United States to face charges related to drug trafficking.

Noriega was eventually brought to the United States to stand trial, contesting the federal district court's jurisdiction over him. United States v. Noriega, 746 F. Supp. 1506 (S.D. Fla. 1990). The court rejected his contention despite the means used to bring him to trial. The court declined to address the underlying legality of Noriega's capture who was viewed as an unrecognized head of state, lacking standing to challenge the invasion as a violation of international law in the absence of protests from the legitimate government of Panama.

Immunity From Jurisdiction

Diplomatic ImmunityIf a nation enters into diplomatic relations with

another nation, international law requires almost total immunity from civil and criminal jurisdiction for a diplomat.

Vienna Convention on Diplomatic Relations

With near-universal participation by sovereign States, the high degree of observance among States parties and the influence it has had on the international legal order, the Vienna Convention on Diplomatic Relations may claim to be the most successful of the instruments drawn up under the United Nations framework for codification and progressive development of international law.

Vienna Convention on Diplomatic Relations, 500 U.N.T.S. 95, signed 19 April 1961, entered into force, 24 April 1964.

Vienna Convention on Diplomatic RelationsBasic provisions of the treaty regarding diplomatic immunity:

The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State.


The sending State and the head of the mission shall be exempt from all national, regional or municipal dues and taxes in respect of the premises of the mission, whether owned or leased, other than such as represent payment for specific services rendered.


Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory.


The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions.

The diplomatic bag shall not be opened or detained.The packages constituting the diplomatic bag must

bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use.


The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.

The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.

His papers, correspondence and, property, shall likewise enjoy inviolability.

Vienna Convention on Diplomatic RelationsA diplomatic agent shall enjoy immunity from the criminal

jurisdiction of the receiving State.He shall also enjoy immunity from its civil and administrative

jurisdiction, except in the case of:(a) A real action relating to private immovable property

situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;


(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

A diplomatic agent is not obliged to give evidence as a witness.No measures of execution may be taken in respect of a

diplomatic agent except in the cases coming under subparagraphs (a), (b) and (c) of paragraph 1 of this article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.

The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.


The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities.

Consular Immunity

Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.

Members of a consular post may be called upon to attend as witnesses in the course of judicial or administrative proceedings.

Consular Immunity

Consular officers shall not be liable to arrest or detention pending trial, except in the case of a

grave crime and pursuant to a decision by thecompetent judicial authority.

Immunity for Organizations

International organizations will enter into an agreement with the host state and specific the scope of immunities.

Immunities are associated with the purposes of the organization (and include the representatives of members) to include:

TaxesImmigration controlsMilitary serviceImmunity from legal process and criminal jurisdictionProperty of the organization

Sovereign ImmunityAbsolute Theory The doctrine of foreign sovereign immunity provides

that a foreign state generally is immune from the jurisdiction of the courts of another sovereign state.

Restrictive TheoryThe theory of state immunity that foreign states were

immune from jurisdiction relating to their “public acts” (acta jure imperii) but were not immune from jurisdiction for their “private acts” (acta jure gestionis) including commercial activities.

Sovereign Immunity

The United States codified the restrictive approach to state immunity through the Foreign Sovereign Immunities Act of 1976 (the “FSIA”).

The Act of State Doctrine

This doctrine says that a nation is sovereign within its own borders, and its domestic actions may not be questioned in the courts of another nation. Each sovereign state has complete control over the laws within its own borders and that its acts cannot be questioned in the courts of another state.

The act-of-state doctrine is a common-law principle that prevents U.S. courts from questioning the validity of a foreign country's sovereign acts that take place within its own territory. The "Act of State Doctrine" says that courts should not decide cases that would interfere with their country's foreign policy.

jurisdiction theories of jurisdiction in international law

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