HI - Week X - STATE JURISDICTION I
STATE JURISDICTION
Jurisdiction
• Domestic
–
–
–
–
supreme within its own territorial
Bordering the application of int’l law
Privileges to grant nationality and regulates on aliens traffic
State’s exclusive jurisdiction subject to int’l law >> exp. human
rights
– Anglo Norwegian Fisheries Case
– No state may invoke its domestic law as a justification for its
failure to perform a treaty >> art. 27 VC 1969 on treaties
– Non intervention principle applies >> art 2[7] UN Charter / UNGA
Res. 2625 (XXV) on Friendly Relations Principles
Criminal Jurisdiction :
• Territorial principle : the sovereignty is
exercisable by a state in its territorial home
even if the offenders are foreign citizens
– The subjective territorial principle
• Jurisdiction of a state in where the act commenced
– The objective territorial principle
• Jurisdiction of a state in where the act is completed
– Both states have jurisdiction however it will
depend on where the offender is located.
– Lotus Case 1927
Lotus Case
PCIJ 1927
• France v. Turkey
• August 2, 1926, French steamer, Lotus, collided on the
high seas with the Boz Kourt, a Turkish steamer
• Boz Kourt sank, 8 sailors and passengers died
• Lotus arrived at Constantinople and consecutively
arrested the officer at watch, M. Demons for
manslaughter
• France protested having said that no jurisdiction to try
M.Demons.
• Whether there existed an existing int’l law that prohibits
Turkey to exercise its jurisdiction
• The court :
– The sovereignty of a state couldn’t be presumed
– However, No power to exercise outside its territory
– Int’l law did not prohibits its jurisdiction within its own
territory regards to act committed outside its frontiers
• The territoriality of criminal law principle is not an
absolute principle of int’l law and by no means
coincides with territorial sovereignty
• Territorial principle covers act committed upon
the land, territorial sea and certain areas where
the state is the flag state of the vessel
• Nationality Principle :
– A state and its population is legally
established a connection determined by
nationality
– Creates duties and rights and the grant for
nationality left to the domestic jurisdiction of
states
• Jus sanguinis
• Jus soli
• naturalization
– Nationality of an individual determines the
jurisdiction of that person
• Active nationality principle
– A state may prosecute its nationals for crimes committed
anywhere in the world >> the UK and the US
• Passive nationality principle
– Jurisdiction over foreign nationals that committed crime
outside its territory but effecting its national >> Mexico,
Brazil and Italy
– Cutting Case 1886 (Mexico v. the US) >> defamation
publication upon a Mexican by American citizen.
• The Protective principle :
– Jurisdiction over criminals so that to punish
prejudicial acts upon a state security even it
was committed by foreign nationals abroad
– Justifiable under the basis of protection of a
state’s vital interests >> to overthrow the
government & espionage.
• The Universality Principle :
– The power of a state to punish certain crimes wherever and by
whomsoever they have been committed or each and every state
has jurisdiction to try offences in regards that the acts committed
were regarded as particularly offensive to the Int’l community
– Conventions obligates to prosecute or to extradite the accused
aut dedere aut judicare
– Piracy
• committed on high seas or within the territorial sea of a State
• UNCLOS 1982 as illegal act of violence or detention or any act of
depredation, committed for private ends by the crew of the
passengers of a private ship or a private aircraft and directed
– On high seas
– In a place outside the jurisdiction of any state (terra nullius)
– War crimes
• Eichmann Case 1961
Attorney General of the
Government of Israel v. Eichmann ;
district court of Israel 1961
• Eichmann, a German National
• Prosecuted in Israel under Israeli Nazi
Punishment Law 1951 for war crimes, crimes
against the Jewish people and humanity >>
covers genocide
• Committed outside Israel against people who
were not citizens of Israel, during WW II
• Convicted and sentenced to death
• Appeal was dismissed
Extradition :
• Enables a state to extradite to another
suspected or convicted criminals who
have fled abroad.
• Based on bilateral treaty that the crime
involves should be a crime in both states
concerned
• Political character should be excluded
Jurisdiction
• Domestic
–
–
–
–
supreme within its own territorial
Bordering the application of int’l law
Privileges to grant nationality and regulates on aliens traffic
State’s exclusive jurisdiction subject to int’l law >> exp. human
rights
– Anglo Norwegian Fisheries Case
– No state may invoke its domestic law as a justification for its
failure to perform a treaty >> art. 27 VC 1969 on treaties
– Non intervention principle applies >> art 2[7] UN Charter / UNGA
Res. 2625 (XXV) on Friendly Relations Principles
Criminal Jurisdiction :
• Territorial principle : the sovereignty is
exercisable by a state in its territorial home
even if the offenders are foreign citizens
– The subjective territorial principle
• Jurisdiction of a state in where the act commenced
– The objective territorial principle
• Jurisdiction of a state in where the act is completed
– Both states have jurisdiction however it will
depend on where the offender is located.
– Lotus Case 1927
Lotus Case
PCIJ 1927
• France v. Turkey
• August 2, 1926, French steamer, Lotus, collided on the
high seas with the Boz Kourt, a Turkish steamer
• Boz Kourt sank, 8 sailors and passengers died
• Lotus arrived at Constantinople and consecutively
arrested the officer at watch, M. Demons for
manslaughter
• France protested having said that no jurisdiction to try
M.Demons.
• Whether there existed an existing int’l law that prohibits
Turkey to exercise its jurisdiction
• The court :
– The sovereignty of a state couldn’t be presumed
– However, No power to exercise outside its territory
– Int’l law did not prohibits its jurisdiction within its own
territory regards to act committed outside its frontiers
• The territoriality of criminal law principle is not an
absolute principle of int’l law and by no means
coincides with territorial sovereignty
• Territorial principle covers act committed upon
the land, territorial sea and certain areas where
the state is the flag state of the vessel
• Nationality Principle :
– A state and its population is legally
established a connection determined by
nationality
– Creates duties and rights and the grant for
nationality left to the domestic jurisdiction of
states
• Jus sanguinis
• Jus soli
• naturalization
– Nationality of an individual determines the
jurisdiction of that person
• Active nationality principle
– A state may prosecute its nationals for crimes committed
anywhere in the world >> the UK and the US
• Passive nationality principle
– Jurisdiction over foreign nationals that committed crime
outside its territory but effecting its national >> Mexico,
Brazil and Italy
– Cutting Case 1886 (Mexico v. the US) >> defamation
publication upon a Mexican by American citizen.
• The Protective principle :
– Jurisdiction over criminals so that to punish
prejudicial acts upon a state security even it
was committed by foreign nationals abroad
– Justifiable under the basis of protection of a
state’s vital interests >> to overthrow the
government & espionage.
• The Universality Principle :
– The power of a state to punish certain crimes wherever and by
whomsoever they have been committed or each and every state
has jurisdiction to try offences in regards that the acts committed
were regarded as particularly offensive to the Int’l community
– Conventions obligates to prosecute or to extradite the accused
aut dedere aut judicare
– Piracy
• committed on high seas or within the territorial sea of a State
• UNCLOS 1982 as illegal act of violence or detention or any act of
depredation, committed for private ends by the crew of the
passengers of a private ship or a private aircraft and directed
– On high seas
– In a place outside the jurisdiction of any state (terra nullius)
– War crimes
• Eichmann Case 1961
Attorney General of the
Government of Israel v. Eichmann ;
district court of Israel 1961
• Eichmann, a German National
• Prosecuted in Israel under Israeli Nazi
Punishment Law 1951 for war crimes, crimes
against the Jewish people and humanity >>
covers genocide
• Committed outside Israel against people who
were not citizens of Israel, during WW II
• Convicted and sentenced to death
• Appeal was dismissed
Extradition :
• Enables a state to extradite to another
suspected or convicted criminals who
have fled abroad.
• Based on bilateral treaty that the crime
involves should be a crime in both states
concerned
• Political character should be excluded