law200 assignment 3.docx

7/30/2019 law200 assignment 3.docx

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"State jurisdiction is the power of a state under

international law to govern persons and property by its

municipal law".

North South University

Law 200: Business Law

Spring 2013

Section 09

Lecturer: Barrister Arife Billah

Assignment 3

Prepared By: Nadia Islam

ID# 1010 464 030


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Topic title:

State jurisdiction is the power of a state under international law to

govern persons and property by its municipal law Explain.

Abstract:

International law is the body of legal rules that apply between sovereign states and

such other entities as have been granted international personality (status

acknowledged by the international community). Jurisdiction is the states power

with which it is able to influence people, property, and situations in region and

domain. In this paper, first what is international law is discussed. Later,

relationship between state jurisdictions and international law is discussed. Then the

issues relating state jurisdiction are explained with examples and discussions are

made to explain that the state jurisdiction is quite powerful and has the authorities

that can be used to influence and administer various people and the entire property.


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Table of Contents

Introduction

Understanding International Law

Discussion

State jurisdictions International Law & State jurisdictions

Issues relating to State Jurisdictions Principle of passive personality Personal jurisdiction Subject matter jurisdiction Cases

Conclusion

References


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Discussion

United States has a huge body of law to govern people. There is evolvement of laws and

its amendment takes place to demonstrate what shall result of the nation 2.

State jurisdiction is amongst the significant and critical discussions in the contemporary

international law. The implication of this subject and its undeviating consequence in the

international dealings has augmented international interest in state jurisdiction. Also, this

increase in the interest level has formed a novel and contemporary understanding of the entire

underlying principles state jurisdiction thus reflecting worldwide disposition rather than national

idiosyncrasy3.

It has been evidenced historically that the presence of state jurisdiction in its fundamental

operation symbolized by territoriality was coexisting along with the appearance of international

law in its typical impression. In addition to it, there was immense necessity for the international

law that is neonate to receive its trustworthiness and sustenance in states because it had to

establish its efficiency as the government that is taking care of international relations and

highlight its aptitude to supply constancy and security. So it has been the major and vital policy

further than the institution of typical international law to give the elements to the states that were

essential for their survival.

The major issue that may come up due to slender state jurisdictions application is the

lawful disagreement amongst jurisdictions. This disagreement can be positive or negative. At one

2State Jurisdiction. (n.d.). Retrieved 03 30, 2013, from http://www.lawnotes.in:

http://www.lawnotes.in/State_Jurisdiction

3What is State Jurisdiction?(n.d.). Retrieved 03 30, 2013, from http://www.wisegeek.com:

http://www.wisegeek.com/what-is-state-jurisdiction.htm


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side, positive conflict will show up when two or more states assume jurisdictions over the same

crime. On the other side, negative conflict can occur when none of the involved states practices

its right and assert jurisdiction to prosecute the criminals.4

A state jurisdiction can be sub-divided into smaller segments. Every state possesses its

personal and individual laws. Also, they have their own area of control. But at the same time,

there exist state supreme courts, and separate jurisdictions within smaller geographic areas like

our cities and counties that have codes and municipal laws. There is election of people of local

towns to assist in administering the county and government in the city. Those people are elected

who focus and direct their vision towards creating and appointing others so that they are able to

administer our laws. Therefore, as civilians who are meticulous, we should know the details of

creation of law and their procedure of execution. It is a part of our responsibility for participating

in creation of the law, and in being able to uphold the law.

We can understand the applicability of the state law to people and property in general.

The Criminal law is an element of the code of state. If in case a murder takes place due to a

deliberate intention, the murderers are subject to murder in the first degree which is also called as

felony. The parameter of murder can be found by the citizens and they can trace their own laws.

The law mentions the number of the case, and is mostly explained through a highlighted area and

a marker which indicates the amendment that been made in the recent times indicating any

amendments that have recently been made. In addition, there are certain penalties that are

connected if at all the law is broken or neglected. Ere will also be a series of penalties associated

with breaking that law.

4Andrea Campbell. (n.d.). What is State Jurisdiction?Retrieved 03 31, 2013, from http://www.ehow.com:

http://www.ehow.com/about_4687722_what-state-jurisdiction.html


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Jurisdiction is the states power with which it is able to influence people, property, and

situations in region and domain. These powers can be exercised by any of the acts - legislative,

executive, or judicial actions. Most often than not, international law deals with concerns in

relation to criminal law and fundamentally and necessarily sets aside civil jurisdiction to be

catered to by the national control. As per the principle of territory, the states enjoy special

powers, rights and weight for dealing with issues that relate to criminal matters that arise within

the territories of that state; this particular standard has been customized and altered so as to allow

one state officials to take steps and proceed in certain situations within another state. The

principle of nationality allows that a country can implement criminal jurisdiction on all of the

citizens who are accused of committing any sort of criminal evil doings in another state. If we

see the past history, this particular principle has shown its close association with systems of civil-

law than with the systems of common-law, although its utilization in systems of common-law

showed a rise during the late years of the 20th century. Ships and aircraft have the nationality of

the state whose flag they fly or in which they are registered and are subject to its jurisdiction.

The principle of passive personality grants permit to the states, in some of the restricted

and limited cases, to argue and assert the jurisdiction for trying a foreign national for those

activities of wrong doing or for offenses which were committed abroad but has caused an effect

to its own citizens. United States has used this principle to put terrorists on trial and even to

arrest the de facto leader of Panama, Manuel Noriega, who was consequently condemned by an

American court for trafficking of cocaine, racketeering, and causing money laundering. The

principle shows up in numerous conventions. It also appeared in the International Convention

against the Taking of Hostages (1979), the Convention on the Prevention and Punishment of

Crimes against Internationally Protected Persons (1973), and the Convention against Torture and


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Other Cruel, Inhuman or Degrading Treatment or Punishment (1984). The protective principle is

contained in the conventions of hostages and aircraft-hijacking and the Convention on the Safety

of United Nations and Associated Personnel (1994). This principle can be called upon by a state.

This can be done in situation where a foreigner commits an operation abroad and such act is

deemed prejudicial to the interest of that state, as separate from damaging and hurting the

citizens interest (the passive personality principle). Lastly, the principle of universality permits

for the declaration statement of jurisdiction in the situations and cases in which the assumed

offense may be put on trial by all of the states. Examples of such crimes are - crimes during war,

crimes against humanity and crimes against peace, piracy and slavery

5

.

There is presence of Jurisdictional immunity in some of the contexts. If we notice,

diplomatic personnel enjoy imperviousness from being prosecuted in such a state where they

execute their operation. Way back in 1960s, it was predetermined by the Vienna Convention on

Diplomatic Relations and the Vienna Convention on Consular Relations that the immunity levels

fluctuate as per the rank of the official.

Personal jurisdiction originates from the concept of territory. This means that personal

jurisdiction can be gained over a party by a court in a situation if this party is connected to the

geographic area of the location of the court. Conventionally, this link and association was met by

the existence of the defendant in that particular state where the court executed from. From the

time of later years of the nineteenth century, philosophies and ideas of personal jurisdiction have

extended further than the concept of territory, and personal jurisdiction over defendants can be

5State Civil Court Jurisdiction. (n.d.). Retrieved 03 30, 2013, from http://legal-dictionary.thefreedictionary.com:

http://legal-dictionary.thefreedictionary.com/jurisdiction


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gained by the courts on many grounds. Nevertheless, the basis of territory remains a dependable

direction for the establishment of personal jurisdiction6.

An individual who is facing a civil claim can file a suit in such a court which is located in

the home state. If in case the defendant stays in the same state it becomes easy for the court to

gain personal jurisdiction. In this case, the plaintiff should merely serve the defendant with a

summons as well as a replica copy of the grievance that was filed by the plaintiff with the court.

After the accomplishment of this one, the court shall have personal jurisdiction over both the

parties involved - plaintiff and the defendant. In case the defendant does not lie in the same state,

the defendant may be served by the plaintiff with the papers of the process at the time the

defendant shows up in the state.

In a situation where the defendant stays in the exteriors of the state and has no plans to

come back to the state, there are other ways with which the court can gain personal jurisdiction.

A good number of states have a Long-Arm Statute. This kind of statute permits personal

jurisdiction to be gained by the court over a defendant who is out-of-state who (1) carries out

business in the state, (2) entrusts a TORT within the state, (3) commend a tort externally in the

state that leads to an injury contained by the state, or (4) owns, uses, or possesses real property

within the state.

There have been disputes in concern if there can be use of state long-arm statutes for the

purpose of obtaining personal jurisdiction as far as defendant from out-of-state is concerned.

With the appearance of the Internet like a means of communication, generating ideas and sell

products has led to disputes over whether state long-arm statutes can be used to acquire personal

jurisdiction over an out-of-state defendant. In the case ofZippo Manufacturing v. Zippo Dot

6Shaw, M. (n.d.). international law. Retrieved 03 30, 2013, from http://www.britannica.com:

http://www.britannica.com/EBchecked/topic/291011/international-law/233512/Jurisdiction


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Com, 952 F. Supp.1119 (W.D.Pa.1997), a U.S. District Court proposed that a long-arm statute

could be used only when the defendant has either actively marketed a product or the web site has

a degree of interactivity that suggests the website seeks to do business. Conversely, a passive

web site, where information is merely posted, would not subject a person to the reach of a long-

arm statute7.

InPavlovich v. Superior Court, 59 Cal.4th 262, 58 P.3d 2, 127 Cal.Rptr.2d 329 (Cal.

2002), the California Supreme Court ruled that an out-of-state web site operator who had posted

software that allowed users to decrypt and copy digital versatile discs (DVDs) containing motion

pictures could not be sued in California state court. The operator, who lived in Texas, did not

solicit business or have any commercial contact with anyone in California. The court relied on

theZippo sliding scale and concluded that Pavlovich fell into the passive category. The web site

"merely posts information and has no interactive features. There is no evidence in the record

suggesting that the site targeted California. Indeed, there is no evidence that any California

resident ever visited, much less downloaded" the software. Even if he had known that the

software would encourage Piracy, this substantive issue did not affect the threshold question of

jurisdiction. Therefore, the lawsuit had to be dismissed for lack of personal jurisdiction8.

The Minnesota Supreme Court took up the question of Internet jurisdiction in the context

of a Defamation lawsuit in Griffis v. Luban, 646 N.W.2d 527 (Minn. 2002). Katherine Griffis, a

resident of Alabama, filed a defamation lawsuit against Marianne Luban, a Minnesota resident,

in Alabama state court. Griffis won a default judgment of $25,000 for statements that Luban had

made on the Internet. Luban elected not to appear in the Alabama proceeding, and Griffis then

filed her judgment in the Minnesota county where Luban resided. Luban then filed a lawsuit

7Jurisdiction Retrieved 03 31, 2013, http://www.encyclopedia.com/topic/Jurisdiction.aspx

8Jurisdiction Retrieved 03 31, 2013, http://legal-dictionary.thefreedictionary.com/jurisdiction


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challenging the judgment for want of personal jurisdiction. The Minnesota Supreme Court

concluded that the key jurisdiction question was whether Luban had targeted the state of

Alabama when she made her defamatory statements. The Court found that while Luban knew

that Griffis lived in Alabama, she had not "expressly aimed" her statements at the state of

Alabama. Instead, she had published these statements to a specialized Internet newsgroup, one

that only had Griffis as a member from Alabama. The court stated: "The fact that messages

posted to the newsgroup couldhave been read in Alabama, just as they couldhave been read

anywhere in the world, cannot suffice to establish Alabama as the focal point of the defendant's

conduct." Therefore, Griffis had not established personal jurisdiction over Luban in Alabama,

and the Minnesota state courts were not obliged to enforce the Alabama judgment9.

While driving inside the state if an out-of-state defendant caused an injury, the court may

gain personal jurisdiction over the defendant on the theory that the defendant consented to such

jurisdiction by driving on the state's roads. Many states have statutes that create such Implied

Consent to personal jurisdiction.

A corporation being the defendant, then it is always subject to personal jurisdiction in the

courts of the state in which it is incorporated. If the corporation has sufficient contacts in other

states, courts in those states may hold that the out-of-state corporation has consented to personal

jurisdiction through its contacts with the state. For example, a corporation that solicits business

in other states or maintains offices in other states may be subject to suit in those states, even if

the corporation is not headquartered or incorporated in those states. A corporation's transaction

of business in a foreign state is a sufficient contact to establish personal jurisdiction10.

9Jurisdiction Retrieved 03 31, 2013, http://www.encyclopedia.com/topic/Jurisdiction.aspx

10Jurisdiction Retrieved 03 31, 2013, http://legal-dictionary.thefreedictionary.com/jurisdiction


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State courts may use additional means to gain personal jurisdiction over out-of-state

defendants for actions concerning real property located within the state. A state court may gain

personal jurisdiction over all parties, regardless of their physical location, in a dispute over the

title to real property. This type of personal jurisdiction is called in rem, or "against the thing."

Personal jurisdiction over all parties interested in the real property is gained not through the

parties but through the presence of the land in the court's jurisdiction11.

When out-of-state defendants are not subject to personal jurisdiction, the plaintiff may be

forced to sue the defendant in the state in which the defendant resides or in the state where the

injury occurred. For example, a plaintiff who was injured outside his or her home state may have

to file suit in the defendant's home state or in the state where the injury occurred if the defendant

has no plans to enter the plaintiff's home state.

Subject matter jurisdiction is in courts of general jurisdiction over the majority of civil

claims, including actions involving torts, contracts, unpaid debt, and Civil Rights violations. The

claims or controversies reserved for courts of special jurisdiction cannot be judged under courts

of general jurisdiction since it doesnt have subject matterjurisdiction. For example, in a state

having a probate court, all claims involving wills and estates must be brought in the probate

court, not in a court of general jurisdiction12.

In some cases, a special administrative board will first hear about the claim before it can

be heard by a court. For example, in most states a workers' compensation board will first hear the

Workers' Compensation claim before it can be heard in a court of general jurisdiction.

11State Civil Court Jurisdiction. (n.d.). Retrieved 03 30, 2013, from http://legal-dictionary.thefreedictionary.com:

http://legal-dictionary.thefreedictionary.com/jurisdiction

12Jurisdiction." West's Encyclopedia of American Law. 2005. Retrieved April 02, 2013 from

Encyclopedia.com:http://www.encyclopedia.com/doc/1G2-3437702500.html


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The amount in controversy is another consideration to be made in establishing subject

matter jurisdiction. This is the total of all claims, counterclaims, and cross-claims in the suit. A

counterclaim is a claim by a defendant against a plaintiff; a cross-claim is a claim by a plaintiff

against another plaintiff, or by a defendant against another defendant13. In most jurisdictions,

the amount in controversy has to exceed certain limit; otherwise the case would be heard by a

court other than a court of general jurisdiction. This court is usually called a Small Claims Court.

The rules of small claims court limit the procedures that are available to the parties so that the

court can obtain a simple and speedy resolution to the dispute.

Conclusion

State jurisdiction demonstrates its presence in a large diversity of cases. An individual

may carry an action of tort in state court. This refers that he will be able to file a suit against

someone else injuring him negligently or intentionally. Any case can be brought forward in front

of the state court. Such cases like a law case related to a family, a case pertaining to crime, a

contract case that may have been breached, and case related to small claims. The cases that

cannot be appealed for in the state court are the ones where the federal government possesses

exclusive jurisdiction over: cases. These may be the ones that may be caused due to bankruptcy

and case related to federal tax laws.

State jurisdiction is the power of a state under international law to govern persons and

property by its municipal law. All of the segments personal or public are dealt by the laws placed

by the municipal laws of the state. It can be derived from the above discussion that the state

jurisdiction is quite powerful and has the authorities that can be used to influence and administer

various people and the entire property. This is done effectively through municipal laws.

13Jurisdiction." West's Encyclopedia of American Law. 2005. Retrieved April 02, 2013 from



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References

Andrea Campbell. (n.d.). What is State Jurisdiction? Retrieved 03 31, 2013, from http://www.ehow.com:

http://www.ehow.com/about_4687722_what-state-jurisdiction.html

Ihenetu-Geoffrey, C. C. (n.d.).RETHINKING JURISDICTION UNDER INTERNATIONAL LAW.

Retrieved 03 30, 2013, from http://works.bepress.com:

http://works.bepress.com/chinedu_ihenetugeoffrey/11/

international law. (n.d.). Retrieved 03 30, 2013, from http://www.britannica.com:


Jurisdiction." West's Encyclopedia of American Law. 2005. Retrieved April 02, 2013 from


Shaw, M. (n.d.). international law. Retrieved 03 30, 2013, from http://www.britannica.com:


State Civil Court Jurisdiction. (n.d.). Retrieved 03 30, 2013, from http://legal-

dictionary.thefreedictionary.com: http://legal-dictionary.thefreedictionary.com/jurisdiction

State Jurisdiction. (n.d.). Retrieved 03 30, 2013, from http://www.lawnotes.in:

http://www.lawnotes.in/State_Jurisdiction

What is State Jurisdiction? (n.d.). Retrieved 03 30, 2013, from http://www.wisegeek.com:

http://www.wisegeek.com/what-is-state-jurisdiction.htm

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