State jurisdiction, Nature Jurisdiction,Prescriptive jurisdiction and enforcement Jurisdiction, Territorial of “enforcement jurisdiction”

State Jurisdiction

Jurisdiction is the term that describe the limits of the legal competence of a state or other regulatory authority or instituition. The term jurisdiction is also commonly used in international law to describe the scope of the right of an Internatonal Criminal Court, to adjudicate upon cases and to make practically useful to distinguishes between the jusrisdiction of States and the jurisdiction of tribunals and to treat them separately.

Nature of Jurisdiction.

Jurisdiction is the aspect of State Sovereignity . It Includes both the power to prescribe rules ( prescriptive jusrisdiction )  and the power to enforce them (enforcement jurisdiction)  . The former referes to the legislative power of a State and the latter includes both executive and judicial power of the enforcement. That is why some writers simply talk about legislative, executive and judical jurisdiction = refer to function of sovereign state.

Prescriptive jurisdiction and enforcement Jurisdiction

Prescriptive jurisdiction or legislative jurisdiction is the power of the state to apply its national law to any person, property , territory or event, wherever they may be situated or wherever they may occur. In international law, there is no general prohibition States extending their legislative jurisdiction to person, property and event taking place outside their territory. This right to legislate for matters beyond the territorial domain flows from the absolute “sovereignity’ of the State.

However , the practical effect of this jurisdiction is restricted by the “ enforcement jurisdiction” . The latter embraces acts designed to enforce the prescriptive jurisdiction , either by way of administrative action or (executive jusrisdiction) such as arrest or seizure or by way of judicial action (or judicial jurisdiction) through the courts.  The relationship betwen the two kinds of jurisdiction is quite clear. There can be no enforcement jurisdiction unless there is prescriptive jurisdiction; yet there may be a prescriptive jurisdiction without the possibility of an enfocement jurisdcition, as for example where accused is outside the territory of the prescribing States and not amenable to extraditon.

Territorial of “enforcement jurisdiction”

Judgfe Huber stated in the Island of Palmas case ; “sovereignity ..in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the function of a State.” Sovereigtnity is undoubtedly territorial in nature. Even though a State may have a general power under international law to prescribe jurisdiction, the enforcement of that jurisdiction can generally take place only within its own territory. In the Lotus case the PCIJ affirmed that “ a State may not exercise its enforcement jurisdiction in the territory of another States. As a result the actual exercise of jurisdiction – the operation of a police force, national courts, etc-is limited to the ‘territory’ of the State asserting jurisdiction.

For instance if a man commits a murder in Malaysia and escapes to Indonesia,the Malaysian courts have jurisdictionto try him but the Malaysia police cannot enter Indonesian Territory and arrest him there; they must request the Indonesian authorities to arrest him and to surrender him for trials in Malaysia. It follows the Principles of “ territorial sovereignity” , according to which a states may not Perform any governmental act in the territory of another State without the latters consen

GENERAL PRINCIPLES ON WHICH CRIMINAL JURISDICTION CLAIM

GENERAL PRINCIPLES ON WHICH CRIMINAL JURISDICTION CLAIM

There are “ five general principles’ on which criminal jurisdiction is claimed by States ;

(1)  Territorial Principle  ( ie determining juridction by reference to the place where the offence was commited)

(2)  Nationality Principle (ie determining jurisdcition by reference to the nationality of the person commiting the offence)

(3)  Protective Principle ( ie determining jurisdciton by reference to the national interes injured by the offence).

(4)  Universality principle (ie determining jurisdiction by reference to the custody of the person commiting the offence ); and

(5)  Passive personality principle (ie detemining jurisdiction by references to the nationality of the person injured by the offence).

1) TERRITORIAL PRINCIPLES

A state can exercise jurisdcition over persons, property, acts or events occuring , within its territory. This is known as th territorial principle of jurisdcition. The classic formulation of the principle can be found in the dictum of Lord Macmillan in the Cristina case ;

It is an essential attribute of the sovereignity of this realm , as of all sovereign independence states, that it should possess juridcition over all persons and things within its territorial limits and causes civil and criminal arising these limits.

The territorial principle has received universal recognition. The principle has a number of practical advantages, including the convenience of the forum and the involvement of the interest of the states where the crime is commited. Moreover the witnesses and the evidence are likely to be within the territory of the state where the cime was commited. In the Lockerbie case, one practical reason for asserting jurisdiction of Scotland was that the physical evidence was located within that jurisdiction.

 

EXTENSION OF THE TERRITORIAL PRINCIPLE

The Harvard research Draft Convention proposed that a State be allowed territorial jurisdiction when a crime is commited ‘ in whole or in part” within its territory”. A crime is committed in part within the territory when any essential constituent elements is consummated there. The Commentary to the Draft Convention states; “ the text of the present article conforms to the modern trend by combining the subjective and objective applications of the territorial principle.

SUBJECTIVE TERRITORIAL PRINCIPLE

According to this principles, a State has Jurisdiction over offence ( any essential constituent element of) which commenced in its territrory but were completed abroad.

OBJECTIVE TERRITORIAL PRINCIPLE

Generaly accepted and often applied is the ‘ objective territorial principle’ , according to which a state has jurisdiciton when any essential constituents element of a crime is commenced in another state but completed in tis territory. The classical example is the firing gun across frontiers causing death on the territory of  the forum.

The leading case on the objective territrial principle is the Lotus Case.decided by the Permanent Court of International Justice. In this case there was a collision on the high seas in the Mediterranean between a French steamer, the Lotus and a Turkish Steamer  in which the latter was sunk with the loss of life of eitht Turkish Sailor. Upon arrival of the Lotus at a Turkish port, its French officer of the watch , Lietenant Demons, was arrested on the criminal charge of manslaughter.France objected to the Turkish exercise of jurisdiction over its national. The PCIIJ stated that the Turkish vessel was to be assimilated to Turkish territory and decided that Turkey was entitle to exercise jurisdiction because a constituent element in the offence of manslaughter- death-had occured on Turkish territory. The court clearly accepted the objective territorial principle.

The objective territorial principle can also be applied in cases of conspiracy and violation of anti trust and immigration laws by activity abroad. The case in points is DPP v Doot where the respondents were foreigners convicted of conspiracy to import cannabis into the United Kingdom. The agreement  ammounting to the conspiracy had been made abroad before the respondents were arrested in England while in the course of carrying it out. The House of Lord held that the English courts had jurisdiction in the case because the offence continued to occur in England while steps were being taken in concert there to carry out the purpose of the conspiracy.

2 ) NATIONALITY PRINCIPLE                              

International law permits a state to exercse jurisdiction over its nationals fro crimes commited anywhere in the world. The Jurisdiction of course will not to be exercise untill the national physically comes within the teritory of his or her home state. This rule is universally accepted, and continental countries make extensive use of it. English law however gives jurisdiction on this ground to English court only in respect of offences of a serious nature. (for example, murder ,high treason and bigamy.

The american courts also accept nationality as a basis of jurisdiction. Restatement of Foreign relation Law ( Third) provides that a State may exercse jurisdiction through its courts if the person is a national of the State.

Some countries claim jurisdiction on the basis of some personal link, other than nationality, between the accused and the State claiming jurisdiction.For instance , denmark, Iceland Liberia, Norway and Sweden claim jurisdiction over crimes commited abroad by their ‘permanent resident”. In a few cases , the United Kingdom has also based jurisdiction on residence. States often claim extraterritorial jurisdiction over members of their armed forces and in connection with crimes commited in the course of their duties over their civillian official

3) PROTECTIVE PRINCIPLE                    

According to the “protective principle” a state can punish acts prejudicial to its security, integrity or national interest , irrespective of where those acts take place or by whom they are commited. During the nineteenth century, continental countries began to claim jurisdiction over acts commited by aliens abroad which threatened the State.Such claims encountered intial opposition , but this opposition soon ceased. Even the United Kingdom which initally opposed this principle, an the United States are now claiming on this ground.]

In Joyce v DPP, one ground of jurisdiction was that the acts of the defendent while he was in Germany were harmful per se to the United Kingdom. In this case the House of Lords held that an alien who left Britain in possesion of a British Passport owed allegiance and was guilty of treason when he subsequently broadcast propaganda for an enemy State in Wartime.

The principle is well established , bu the range of acts by the principe is not free from controversy. Article 7 and 8 of the Harvard Research Draft Convention speaks of crimes against the security, territorial integrity or political independence of the State and the conterfeiting of the seals, currency , passport or public documents issued by the State.

r instance , denmark, Icelandm

Theres is no doubt that in modern time a State security is economic as well as political . As a result , conduct posing a real threat to a States national economy could be subjected to the State jurisdcition. The long established offence of counterfeiting of currency is a good example of the legitimacy of extending the principle to conduct with economic consequences. The exercise of jurisdiction over these offences is unobjectionable, but some States make wider claim to jurisdiction . These wider claims are not acceptable and are obviously open to abuse.

The Harvard Research found that most, if not all States used this principle to a greater or lesser extent . It went on to say that

“ in view of the fact that an overwhelming majority of States have enacted such legislation, ie legislation relying on the protective principle, it is hardly possible to conclude that such legislation is necessary in excess of competence as recognised by contemporary international law

This suggest that the protectve principle can be regarded as an accepted head of jurisdiction under customary Intenational law. An example of the general acceptance of the protective principle is found in the doctrine of contigous zone. 

4) UNIVERSALITY PRINCIPLE.

Under international law, there are certain crimes which are so destructive of the internationalm order and are contrary to the interests of the international community as a whole, that they are treated as delicta jure gentium. International Crimes are violations of customary international rules which are intended to protect,value considered important by the whole intenational community and consequently bind all States and individuals. The universality principle is largely dpendent on the concept of “international crimes”.since there exists a universal interest in repressing these crimes, under international law the perpetrators may be prosecuted and punished by any State , regardless of territorial or nationality link with the perpetrator or his victim

The purpose of conceding universal jurisdiction is to ensure that no such offence goes unpunished. According to the more widespread version of universality principle, only the State where the accused is in custody may prosecute him or her (the so called forum deprehensionis, or jurisdiction of the place where the accused is apprehended). Therefore the presence of the accused on the territory is a condition for the existence of jurisdiction.

The crimes which are subject to the universality principle are very limited in number. The clearest and most controversial illustration of such crime is ‘piracy’ ; for centuries there has been a true, universal jurisdiction over piracy. Slavery too is an old international crime and is generally regarded as being subject to universal jurisdiction.

As far as war crimes and crimes agains humanity are concerned , reference is especially made to the 1949 Four Geneva Convention and the obligation of State parties to punish persons guilty of these crimes.Each of the four 1949 Geneva convention contains the following provision on jurisdiction

The high contracting parties undertake to enact any legislation necessary to provide effective penal sanction for person commiting...any of the grave breaches of the present Convention...

Each High Contracting Party shall be under the obligation to search for person alleged to have committed...such grave breaches and shall bring such person, regardless of theor nationality before their own courts.

The 1949 Four Geneva Convention obligate States Parties to prosecute and punish grave breaches of the conventions. Due to the universal adherence to these convention, it is generally accepted that the grave breaches of these convention (war crimes and crime agains humanity) are subject to unversal jurisdiction. The same is true with the crime of genocide ( which was a sub category of crimes against humanity but has later been regarded as a separate intenational crime)

In Attorney General of the Government of israel v Eichmann, Eichmann was the head of the jewish Office of the German Gestapo. He was the administrator in charge of the policy that led o the extermination of between 4,200,000 and 4, 600,00 jews in Europe. Eichman was found in argentina in 1960 by Israeli agent and abducted to Israel. There he was prosecuted under the Israel Nazi and Nazi Collaborators. Law of 1951 for war crimes , crimes against the Jewish people , in the definition of which was modelled upon the definitio of genocide . He was convicted and senteced to death. It was held by the court that :

The abhorrent crimes defined in this law are not crimes under Israel law alone.These crimes, which struck at the whole of mankind and shocked the consciences nations, are grave offences against the law of nations itself (delicta jure gentium)... The jurisdiction to try crimes under international law is universal.

Thus in the Eichman case , while the objection were raised by other States to the manner by which Eichmann was brought to Israel ( the issues of legality of kidnapping), no protest was made as to Israel right to assert a universal jurisdiction over war crimes and crimes against humaity (including genocide) committed by Eichmann.

As fas as “ torture” is concerned, there is the Torture Convention, 1984, to which 144 States are parties and in the Pinochet case , Lord Millet dissenting stated ; “ In my opinion, the systematic use of torture on a large scale and as an instrument of State policy had joined piracy, war crimes and crimes against peace as an intenational crime of universal jurisdiction well before 1984.

Therefore the clear cut case of international crimes which are subjected to universal jurisdiction ,are genocide, war crimes, crimes against humanity, torture, piracy and slave trading. Addiional offences maybe subject to universal jurisdiction on the basis of international treaties. But such treaties only apply between the States that are parties to them, unless it can be shown that customay law has also come to accept these offences to universal jurisdiction.

Other crimes of international concern established by more recent convention , extending to the hijacking of aircraft , sabotage ,apartheid , crimes agains internationally protected persons, terrorism, hostage taking , drug trafficking, counterfeiting of currency and others , raiesd complex issues concerning the legal basis of the alleged universal jurisdiction. Such convention create an obligation to prosecute or extradite the accused (aut dedare aut judicare) and thereby confer jurisdiction under the provision of the relevant treaty. It is however difficult to accept that such treaties, which are binding only among the parties to them, by themselves create true universal jurisdiction in relation to non-parties.

5) PASSIVE PERSONALITY PRINCIPLE.

This principles can be said as an opposite version of the nationality principle (also known as active nationality or active personality principle). According to it, a State may try and punish foreigners for crimes commited abroad affecting its national. In other words , if the victim of a crime is its national, a state can exercise jurisdiction over a foreigner even though he commited it in a foreign coutry.Mexico, Brazil and Italy claim criminal jurisdiction on the basis of this principle.

In the Cutting Case a court in Mexico assumed criminal jurisdiction over an American citizen for the publication of a defamatory statement against a Mexican citizen in a Texas newspaper. The United States protested against this.

The united states and the United Kingdom have consistently opposed this principle in the past. Browlie sayas that the principle is least justifiable. It is indeed true that the mere fact that the national of a State has been a victim of a crime commited in another country does not necessarily concern the general interest of the national state, on the other hand, if the state where the crimes has occurs is unwilling or unable to prosecute the offender, it may be argued that the national State is entitled to protects its own national onces the foreig suspect comes under its control . In th United States, however, it appears that it has come to accept the passive personality principle in respect of terrorist activities and similar serious crimes.

 This principles is indeed an unneccessary extension od State jurisdiction and it may cause considerable practical problems, for example if the acts which is an offence under the lawof the state of nationality of the victim is not an offfence under the law of the state where is was commited or the law of the State of the offenders. Since several objections can be raised to this principle as a ground of jurisdiction , it is doubtful where it is part of customary international law.