Public International Law

CML 3131A
Professor John H. Currie

Jurisdiction
Principles of Jurisdiction
When/where can state exercise
jurisdiction over persons/events/property?
Note distinction:
prescriptive jurisdiction
enforcement jurisdiction

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Principles of Jurisdiction: Lotus
PIL permissive re: states‟ prescriptive
jurisdiction
subject to some limits imposed by PIL
By contrast, enforcement jurisdiction very
strictly limited (to sovereign territory)
subject to some extraterritorial (ET)
extensions permitted by PIL

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Prescriptive Jurisdiction
Territorial principle:
state in which transaction occurs has
prescriptive jurisdiction
universally recognized
basis: presumed state interest in
regulating events in its territory

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Prescriptive Jurisdiction
Territorial principle:
applies if transaction only partly in territory
“subjective”: act commenced in territory
“objective”: act consummated in territory
Lotus: territorial principle applied flexibly…

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Prescriptive Jurisdiction
Nationality principle:
prescriptive jurisdiction over acts of
nationals committed abroad
generally recognized
Note utility where no state can or will
exercise territorial jurisdiction

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Prescriptive Jurisdiction
Conferral of nationality within domestic
jurisdiction of each state
Common bases:
jus soli: place of birth
jus sanguinis: parentage
naturalization

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Prescriptive Jurisdiction
Nationality:
unfettered right of conferral?
particularly if conferral affects other states?
Notteböhm Case (1955) (ICJ):
• grant of nationality only „opposable‟ if
based on „genuine or effective link‟
• i.e. close factual connections

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Prescriptive Jurisdiction
Nationality of corporations:
Barcelona Traction (1970) (ICJ):
• presumption: state of incorporation
or location of registered head office
• or other state with sufficiently close
factual connections…?

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Prescriptive Jurisdiction
Passive personality principle:
ET acts by non-nationals harmful to
nationals
tends to conflict with
territorial/nationality jurisdiction
state practice: marginal other than
pursuant to treaty

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Prescriptive Jurisdiction
Protective or security principle:
ET acts by non-nationals which jeopardize
key state interests/security
limited state practice
e.g. espionage, counterfeiting, human
smuggling, violations of EEZ/CS rights…

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Prescriptive Jurisdiction
Universal principle:
ET acts by non-nationals regardless of links
to state?
only re: serious international crimes:
• certainly piracy
• probably genocide, war crimes
• possibly crimes against humanity, torture,
slavery, terrorism, etc?
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Prescriptive Jurisdiction
Common threads:
real and substantial link to subject-matter
deference to conflicting
territorial/nationality jurisdiction (“comity”)

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Enforcement Jurisdiction
Almost exclusively territorial
Narrow exceptions in non-state areas: EEZ,
continental shelf, high seas, outer space, etc.
But not in foreign state territory (without
consent)

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Enforcement Jurisdiction
Extradition: consensual transfer of
enforcement jurisdiction (custody)
No general CIL duty/right to extradition
(but some treaties impose „prosecute or
extradite‟ obligations re serious crimes)

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Extradition
Governed by treaty/ad hoc consent
Common provisions:
reciprocity
double criminality
exclusivity
assurances
respect for human rights (e.g. no
political offences)
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