This is a final exam. I would like somebody to write 5 pages for each question following the instructions below. Your answers should be from your own words after reading the course readings I have attached.

Unit Learning Objectives

After reading this unit, you will:

· Understand how, through the notion of a 'boundary', international law determines the authority of states to make and enforce rules;

· Be able to explain what jurisdiction means and the relationship between jurisdictional authority to make rules and the authority to enforce those rules;

· Be able to identify some important rules regulating jurisdiction over criminal offences and explain how they affect states' jurisdiction.

Unit Plan and Summary

Previous units discussed how the notion of sovereignty/'territorial supremacy' provides the foundation for international law. This unit on 'Jurisdiction' delves further into the operation of territorial supremacy by discussing how international law determines the physical extent of states' jurisdictional authority, the nature and scope of that authority, and the limits to that authority.

Outline

1. The Nature and Problem of Jurisdiction

2. Limits on Jurisdiction over Persons, Property and Events: State Responsibility & Sovereign Immunity

3. International Criminal & Extraterritorial Jurisdiction

Readings

· Malanczuk, Peter. “ Jurisdiction .” In Akehurst’s Modern Introduction to International Law, 118-129. 7th ed. London, UK: Routledge, 1997.

Key Concepts

· Prescriptive and Enforcement Jurisdiction

· Extraterritoriality

· Spatial Boundaries

· Territorial sea

· Contiguous Zone

· Exclusive Economic Zone (EEZ)

· High Seas

· National Airspace

· International Airspace

· Outer Space

· Continental Shelf

· Deep sea bed

· Ratione Loci

· Ratione Personae

· Ratione Materiae

· Act of State Doctrine

· State Responsibility

· Sovereign Immunity (Absolute & Restrictive)

· Territory Principle (Subjective & Objective)

· Nationality Principle (Active & Passive)

· Protective Principle

· Universality Principle (Hostis Humanis Generis)

· Extradition & Asylum

· Prima Facie Evidence

· "Crimes of Conscience"

· Specialty Principle

Nature & Problem of Jurisdiction

Jurisdiction is the authority of a state in international law to prescribe or to enforce a rule of law over territory, persons, property or events. The term is ambiguous: jurisdiction confers certain powers on states, but the powers in question are not always clear. A useful way to examine states' jurisdictional powers is by dividing these powers into components (i.e., powers of legislation, adjudication and enforcement) and by examining the spaces within which these powers are exercised.

Prescriptive and Enforcement Jurisdiction

There are important distinctions between these powers, described as a distinction between prescriptive jurisdiction and enforcement jurisdiction.

· Prescriptive jurisdiction: Here, the focus is on the legislative powers of a state to enact rules of law within its jurisdiction, e.g., criminal and civil laws, tax laws, currency regulations, etc.

· Enforcement jurisdiction: Here, the focus is on adjudication and enforcement, the powers of a state to enforce its prescriptive jurisdiction by way of administrative action and/or judicial action.

There can be prescriptive jurisdiction without enforcement jurisdiction (but not vice-versa). For example, if a man commits a crime in state 'A' and escapes to state 'B', although the offender has broken a prescriptive rule of state 'A' and although state 'A' has jurisdiction to try the offender, once the offender is in state 'B', state 'A' may not be able to enforce its jurisdiction (i.e., arrest and try the offender for the crime).

The term 'extraterritoriality' generally refers to a situation where the jurisdiction of state A extends into the territory of state B, which simultaneously represents an expansion in the scope of state A's jurisdiction and a diminution of state B's jurisdiction.

Jurisdictional (Spatial) Boundaries

Jurisdiction is a manifestation of state sovereignty and territorial supremacy. The principle of territorial sovereignty/supremacy has been a central element in the patterns of state actions and the substantive rules/norms of international law. All states have a general right to control what goes on within their territory. A useful way to understand how international law deals with jurisdiction is to examine how a state's territorial control is defined and delimited.

A boundary in international law is a legal demarcation delimiting and separating the area of control of one state from that of another state. Through this system of demarcation, states know just how far their jurisdictional and legal authority extends. While there may be disagreement about the extent of the area of control and the exact location of the boundary, there is never any disagreement over the meaning of the boundary once it has been established.

Legal boundaries, therefore, are a device for defining the spatial limits of a state's legal authority and jurisdiction. Using boundaries, international law defines the distribution of territory among states along three spatial planes, and specific rules regulate aspects of jurisdiction within these planes. The three special planes are

· Height (national airspace and outer space);

· Width (territorial land area and territorial sea); and

· Depth (sub-soil, continental shelf, seabed) (see diagram 1).

Figure 1: Legal Boundaries in International law

Width and Depth: Land, Sea & Subsoil

Land

States have jurisdiction over all property, events and persons on their physical land territory (excluding the limitations on enforcement jurisdiction). Included in this spatial domain are all resources on the land (flora, fauna, minerals, etc) as well as in the sub-soil. There is no limit to the depth of the sub-soil.

The Sea

Of all the territorial planes, rules governing jurisdiction over the sea are the most controversial. The 'sea' is divided into three zones moving outwards from the land: Internal waters (rivers, lakes, etc); Territorial sea; and High Seas.

Three international conferences have attempted to codify/legislate rules to govern the seas: the 1958 United Nations Convention on the Law of the Sea (UNCLOS I); the 1960 UNCLOS II; and the 1982 UNCLOS III. The rules summarized below are contained in these documents.

Territorial Sea

This is the zone of exclusive sovereign jurisdictional rights. It was originally 3 miles, a rule that lasted from the early 1800s until the mid 1900s. During this period, there were some exceptions (e.g., Norway claimed 4 miles).

UNCLOS III in 1982 established that maximum width of the territorial sea is 12 miles from the coastal baseline.

Contiguous Zone

In addition to the above, the majority of coastal states claim an EEZ of up to 200 miles from the baseline of the territorial sea. Jurisdiction within the EEZ is by function and is not necessarily territorial. The coastal state has rights to explore, exploit, conserve, and manage all natural resources of the waters, seabed and sub-soil, as well as produce energy from water and wind.

The coastal state also has the right to control all installations as well as dumping of wastes by other states. In addition, the coastal state has the duty to protect the marine environment, to ensure conservation of living resources by determining maximum 'sustainable yields' and to grant access by other states to any surplus. Land-locked or 'geographically disadvantaged' states have special rights to such surpluses and are to negotiate agreements with neighbouring coastal states to give the former the right to use port and transit facilities. All states have freedom of navigation and over flight in other states' EEZ. Each state claiming an EEZ must exercise its rights with "due regard for the rights of other states."

High Seas

No state may claim jurisdiction over navigation on the 'high seas' or 'international waters' (the area beyond the 24 mile contiguous zone). Jurisdiction is limited to the nationality of the vessel and the individuals on that vessel. Area above high seas designated as 'international airspace' and the same rules apply as navigation on the ocean.

Height: Airspace and Outer Space

Airspace

States claim sovereignty over national airspace over their land territory as well as over their territorial sea, indicated in existing customs and in numerous conventions. Technically, there is no limit to the height of national airspace.

States have the right to intercept any intruder into their airspace including the right to shoot down the intruding aircraft. A prominent example was the May 1960 'U2 incident' where a US spy plane was shot down over the USSR. More recently, controversy was generated over the downing of a Korean Airlines passenger jet (KAL 007) by the USSR in 1983. This right, however, is limited. A state cannot attack an intruding aircraft unless there is evidence that aircraft constitutes a threat to its security. The International Civil Aviation Authority (ICAO) has recommended that offensive actions should never be undertaken against a civil aircraft.

Air transport across the globe or from one country to another would be impossible without a series of bilateral and multilateral treaties in which states grant to other states the right to fly their aircraft over airspace.

Outer Space

Generally, the same rules apply in outer space as in airspace, but this rule has not been observed or enforced. Since the first artificial satellite flight in 1957 (USSR's Sputnik) no state has ever protested the over flight of satellites over their territory. Thus over time, a new permissive customary rule has evolved that has granted states the right to place satellites in orbit above the jurisdiction of other states. The 1967 Outer Space treaty prohibits states from claiming territory on any of the celestial bodies in the solar system (the moon, planets, etc).

Limits On Jurisdiction

If the definition of state jurisdiction along the three spatial planes described above was all that was involved in the allocation of jurisdictional powers, it would not be very difficult to explain the substantive rules of international law: all the rules would revolve around clarifying where in spatial terms the control of states existed. However, the problem of jurisdiction is not simply a matter of defining boundaries; it is also a matter of specifying what authority (legislative, adjudicative and executive) can be exercised within those boundaries.

In this regard, the notion absolute of territorial supremacy (i.e., that within its boundary, a state has exclusive jurisdictional powers and is not subject to external interference) is a legal fiction and a gross legal generalization. States' jurisdiction over their territorial domain is subject to many limitations, which are increasing as the international environment becomes more complex. These limits on a states territorial jurisdiction can be divided into three categories:

1. Limits on states' jurisdiction over territory (Ratione Loci)

2. Limits on jurisdiction over persons; and (Ratione Personae)

3. Limits on jurisdiction over property and events (Ratione Materiae)

Jurisdiction over Territory (Ratione Loci)

Traditionally, the Act of State Doctrine (territorial supremacy) held that the actions of a (head of) state carried out within its own territory could not be challenged in the courts of another state. This notion is related to doctrine of sovereign immunity (discussed below). The blanket immunities that this appears to grant, however, are circumscribed by other rules and principles that limit state's jurisdiction over territory, persons and property. Perhaps the most significant is the Doctrine of State Responsibility.

Doctrine of State Responsibility: State Responsibility holds that although states have the right to exercise jurisdiction within their territory, they also have a duty to ensure that conditions prevailing within their territory to not cause harm/injury to other states, their official agents and property, and the nationals of those states. If a state fails in this responsibility, injured states have the right to take appropriate measures seek redress and to protect their property, nationals and agents.

State responsibility, therefore, operates on reciprocal considerations of the mutual limitations of territorial sovereignty. Its corollaries are the duty of 'due diligence', and the principle of 'Good Neighbourliness'. These principles form the basis of customary international laws for protecting the natural environment, which we examine in Unit 12.

In the effort to advance human rights, some have suggested that another important corollary of state responsibility is aresponsibility to protect the rights of their own nationals; and if states fail to do so, other states should have a right/duty to intervene to ensure such protection through humanitarian intervention. We shall discuss this further in Units 9 and 11.

Jurisdiction over Property

International law also limits state's territorial jurisdiction by placing limits on what states can do to property of other states and foreign nationals within their territories.

Private Property

As noted in Unit 6, although international law makes no restrictions on the authority of a state to regulate property owned and operated by its own nationals (e.g. it may confiscate their property), it does limit the authority of states in regard to the property of non-nationals (including personal property, business enterprises, investments, etc). The Rights of Aliens prohibits states from confiscating alien property without compensation. This may include personal property, business enterprises, investment, and intellectual property. While there are many conflicting interpretations of the extent of the limitations on a state's right to confiscate alien properties, it is generally agreed that the confiscation must not be retaliatory or discriminatory and must be accompanied by some form of reasonable compensation.

Public Property

As far as publicly owned foreign property (i.e., the property of a foreign state) is concerned, there are strong limits on jurisdiction based on the doctrine of Sovereign Immunity. There are two interpretations of this principle:

Absolute Sovereign Immunity

Traditionally, the doctrine held that domestic courts must decline to hear lawsuits against foreign sovereigns and their public property irrespective of the nature of the activity. It also held that state 'A' cannot confiscate the property of state 'B', and state 'A' cannot (in many cases) force state 'B' to accept the jurisdiction of its courts (i.e., accept the adjudication of disputes involving the property of state 'B') even if that property is in state 'A'. Traditionally, the immunities were extensively applied to any type of property owned by one state in the territory of another state including property owned by state corporations.

Restrictive Sovereign Immunity

Under this newer interpretation, given the increasing involvement of states in the economic sphere, a distinction must be drawn between foreign public property that is commercial (e.g. a profit-making entity such as a national airline) and foreign public property that is non-commercial. Immunities under sovereign immunity apply only to non-commercial public foreign properties.

In effect, under restrictive sovereign immunity, a state is immune from suits in cases involving injuries that are a result of its government actions (jure imperii), but is not immune from injuries resulting from purely commercial activities even if those commercial activities are 'publicly owned' (jure gestionis). In other words, the nature of the activity (commercial or non-commercial) not the ownership of the property (public or private) determines if sovereign immunity applies.

Jurisdiction over Persons

International law places limits on a state's jurisdiction over persons within its territory. States traditionally have the right to regulate the behaviour of, and settle disputes among, people within their territory. However, there are groups of people who have certain rights the state cannot take away and there are certain situations in which a state can legally interfere in the jurisdiction of another state.

There are three main groups of limits over a state's jurisdiction over persons:

1. nationality and aliens (which we discussed in Unit 6);

2. diplomatic and consular immunity (which we will discuss in Unit 8); and

3. international criminal law and extradition/asylum (discussed below).

International Criminal Jurisdiction

States in international law have extensive jurisdictional powers over individuals for criminal offenses. States base their claim to jurisdiction over persons for criminal offenses on the following principles:

Territory Principle

Every state claims jurisdiction over crimes committed within their territory (by nationals and aliens). Jurisdiction is based on thelocation of the act. There are two sub-applications:

· Subjective Territory Principle (Internal). Here the offender's (national or non-national) conduct violates State A's laws. The action starts and is completed in State A.

· Objective Territory Principle (External). Here the offender's conduct violates State A's laws. The conduct starts outside state A, but is completed or 'has effect' inside State A. This is also known as the Doctrine of Effects. An example of this would occur if someone in stood on the USA side of the border and shot someone in Canada (state A).

Active Nationality/Personality Principle

Here, the focus is on the nationality of the offender/perpetuator of a crime. A state may prosecute its nationals for crimes committed anywhere in the world. Offense may start and end anywhere. This principle is universally accepted but invoked less frequently than the territorial principle. Some states only apply this if the offense breaks its national law, not the law of the law of foreign state its national resides in (e.g., the UK, USA, and Canada).

Passive Nationality/Personality Principle

Here, the focus on nationality of the victim. A state may prosecute anyone anywhere in the world who causes harm to its nationals living anywhere. This principle has more limited application, and is generally not used unless another principle is also applicable. Examples of states that apply this include Mexico, Brazil and Italy. Concerns over terrorism, however, are leading to growing acceptance of this principle (e.g., by the USA).

Protective Principle

A state has the right to punish acts prejudicial to its national security (territorial integrity and political independence), even when they are committed by foreigners abroad (e.g., espionage, coup plots, counterfeiting, treason, etc).

Universality Principle

Some states claim jurisdiction over all crimes, under general international criminal law, especially serious crimes committed by foreigners abroad. Here the focus is on the nature of the crime not its location, the nationality of the offender, the nationality of the victim, or national security. The universality principle is not applied to "common crimes" such as murder because they are not "sufficiently outrageous". This principle is based on the idea that certain criminal acts are deemed to be so serious they are hostile to all humanity, the actions are detrimental to the international community as a whole, and are criminal offenses in virtually all countries. These are acts considered Hostis Humani Generis (an enemy of humankind), and violations of jus cogens. Examples include:

· Slavery

· Piracy

· War crimes

· Crimes against humanity

· Genocide

· Apartheid (institutionalized racial discrimination)

· Terrorism (kidnappings, hijackings, indiscriminate bombings, etc)

· Torture

Relationship among Criminal Jurisdiction Principles

Thus, the existence of different grounds for jurisdiction means that several states may exercise concurrent jurisdiction (i.e., a criminal may be punished more than once for the same crime). Not all countries accept that a prior conviction in a foreign country acts as a bar on further prosecution/conviction.

There is an implied hierarchy among the territorial and nationality jurisdictional principles except in cases of 'national security' and 'major' international crimes which are covered by the protective and universal principles respectively. One moves down the hierarchy through a process of elimination (lower principles only apply when higher principles are inapplicable). The territorial principle is at the top of the hierarchy – it is the most widely accepted with subjective taking precedence over objective territorial principle. The nationality (active and passive) are only applied if the territorial principle is inapplicable. The active nationality is more widely accepted than the passive nationality principle.

Extradition and Asylum

Extradition

Extradition is a legal process whereby an individual who is alleged to have committed a crime in state 'A', but who is in state 'B', is returned to state 'A' for prosecution.

If there is a treaty, extradition rules on the one hand extend the jurisdiction of one state (A) into a second state's territory (B). On the other hand, those rules represent a limitation on state 'B's' jurisdiction since it may be obligated to turn over a person (national or alien) residing within its territory.

Rules governing extradition are usually based on a bilateral treaty, but there are some general rules:

1. The state requesting extradition must provide prima facie evidence of presumed guilt of the person accused. (Note: extradition may apply to nationals and aliens or only to aliens)

2. Requests for extradition can only be made for non-political and non-religious offenses. So-called "crimes of conscience" are not normally extraditable -- but only if they do not involve political murder/assassination.

3. Specialty Principle: An extradited person cannot be tried for a crime other than that for which she/he was extradited until she/he has been given a chance to leave the country to which s/he was extradited. The state where the offense occurred must then submit a new extradition request to cover any new charges.

Some states, including Canada, which do not have the death penalty, reserve the right to refuse to extradite persons accused of 'capital offences' (i.e., criminal acts that carry the death penalty).

Asylum

International laws regulating the granting of asylum are more ambiguous and strongly influenced by politics. Asylum means granting an alien the sanctuary of the territory/embassy of a state. (There have been instances where asylum has been granted to nationals). It is usually extended to people facing persecution on political, religious and other grounds (e.g., racial/ethnic) and not for criminal acts. Asylum represents an important, but seldom used, limit on a state's jurisdiction, and is usually governed by regional customs (e.g., the Asylum Case – Peru V. Columbia)

Box

The Asylum Case [Columbia vs. Peru ICJ 1950]

Facts of the case

This case involved the claim of Columbia to give political asylum to a Peruvian national, Haya de la Torre, who had sought refuge in the Columbian embassy in Lima, Peru. Columbia claimed to have the right to determine whether it was the proper case for asylum and asked the ICJ to make a ruling as to whether a custom existed specifying how and when political asylum could be granted. Peru protested against Columbia's granting of political asylum to one of its nationals. Columbia argued that there was a regional custom among Latin American States governing the granting of asylum.

The decision

The ICJ ruled against Columbia arguing that there was too much inconsistency in the practices of Latin American states regarding the granting of asylum. The Court noted that "The facts brought to the knowledge of the court display so much uncertainty and contradictions...the practice has been influenced so much by political expediency...the court therefore, cannot find that the Columbian government has proved the existence of such a custom.'