Principles of Jurisdiction


  • Territorial principle
  •  Nationality principle
  • Protective or security principle
  • Jurisdiction over ships and aircrafts
  • Universal Jurisdiction

 

Territorial Principle
• Exercise of jurisdiction by a state over property, person, acts or events occurring WITHIN its territory.

• British practice – the mere physical presence of any person or thing within the territory is sufficient to attract jurisdiction (no matter of domicile or residence)

• Transient Jurisdiction – British court may exercise jurisdiction in regard to person, during a mere fleeting visit to territory .
• Basis : Territorial Jurisdiction over crime – As a matter of convenience, crimes should be dealt with by the states whose social order is most closely affected, and in general this will be the state on whose territory the crimes are committed
• What are in territory (as in exercise of jurisdiction) – Maritime coastal belt or territorial sea – A ship bearing the flag of state wishing to exercise jurisdiction – Ports (part of internal waters)

Types of territorial principle
• Extension of territorial principle – in order to justify the action taken by states in cases where one or more elements of an offense took place outside the territory



• Subjective Territorial principle – State claim to a jurisdiction of a crime commenced in their territory but completed in another state – Geneva Conv. For Suppression of Counterfeiting Currency 1929, Geneva Conv. For Suppression of Illicit Drug Traffic 1936

• Objective territorial principle – State applied their territorial jurisdiction to offenses or acts commenced in another state, but

• Completed within their territory

• Or producing gravely harmful consequences to the social or economic order inside their territory – Example (League of Nations report concerned with criminal jurisdiction of states over offences committed outside their territory)

• A man firing a gun across a frontier and killing another man in a neighboring state

• A man obtaining money by false pretenses by means of a letter posted in Britian to a recipient in Germany

Lotus Case
• France – Turkey didn’t have jurisdiction to try French officer, as they were on French boat in international water, at the time of accident. – Flag state of a vessel would have exclusive immunities over the offenses committed on the board the ship in high sea.

• Turkey – since their nationals were killed, they had jurisdiction to try those responsible for the deaths. Question Presented: – Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime committed by a French national, outside Turkey? If yes, should Turkey pay compensation to France?

Court

• Turkey, by instituting criminal proceedings against French nationals Turkey did not violate international law.

• The flag state did not enjoy the exclusive territorial sovereignty in the high seas in respect of the coalition in the high seas.

• The Court held that Turkey and France both have jurisdiction in respect of the whole incident: i.e. there is concurrent jurisdiction.

• It established the principle of territorial jurisdiction

– A State cannot exercise its jurisdiction outside its territory unless an international treaty or customary law permits it to do so.

• Within its territory, a State may exercise its jurisdiction, on any matter, even if there is no specific rule of international law permitting it to do so.

Nationality Principle

• Also referred to as personal jurisdiction

• Determination of nationality – states law (person, ship, aircraft. .. )

• Depends on some quality attaching to the person involved in a particular legal situation which justifies a state or states in exercising jurisdiction in regard to that person

• Occur generally when a person enters the territory of the state either voluntarily or as a result of the successful extradition proceeding
• Continental European model – countries claim jurisdiction over crimes committed by their nationals, notwithstanding the territory of occurrence of crime

• Common law – limits to exercise jurisdiction in very serious crime (UK – treason, murder, and bigamy)
Active nationality principle – Jurisdiction is assumed by the state of which the person, against whom the proceedings are taken, is a national – Some instances also cover foreign subsidiaries of a local principal corporation.

Passive personality principle – State may claim jurisdiction to try an individual for offences committed abroad which have affected or will affect nationals of state – Cutting Case, 1886

• Publication in Texas of a statement defamatory of a Mexican by an American citizen

• Cutting was arrested while in Mexico and convicted of the offence (a crime under Mexican law)

• Mexico claimed its passive personality principle

• USA protested

• But lack of evidence – charges were withdrawn

Protective / Security Principle
• Each state may exercise jurisdiction over crimes against its security and integrity or its vital economic interest

Joyce v. DPP (1946) House of Lords – applied protective principle – Alien owing some kind of allegiance to the Crown may be tried by British court for crime of treason committed abroad.

Jurisdiction over ships and aircrafts
• When in high seas or EEZ, flag state’s jurisdiction and when in port territorial jurisdiction may be exercised.

Universal Jurisdiction
• Which comes under the jurisdiction of all states wherever it is committed

• Generally, the offense is contrary to the interest of the international community

• Why?

– to ensure no such offence goes unpunished

• Two primary offence with UJ – piracy and war crimes

• But now – includes piracy, hijacking, slave trade, genocide, terrorism etc.
Scope of Universal Jurisdiction

– conditional conception

– requires the presence of the accused in the prosecuting state.

– absolute conception

– does not require the presence of the accused. •

‘universal jurisdiction in absentia’.

Eichmann Case (the District Court of Jerusalem):

– “The crimes defined [Nazis and Nazi Collaborators (Punishment) Law of 1950] are not crimes under Israel law alone.

– These crimes, which struck at the whole of mankind and shocked the conscience of nations, are grave offenses against the law of nations itself (delicta juris gentium).

– Therefore, so far from international law negating or limiting the jurisdiction of countries with respect to such crimes, international law is, in the absence of an International Court, in need of the judicial and legislative organs of every country to give effect to its criminal interdictions and to bring the criminals to trial. The jurisdiction to try crimes under international law is universal.“

Kumar Lama Case ? 2013