Public international law literature
Week 1
Chapter 6 Jurisdiction
Enforcement jurisdiction
Enforcement: the exercise of jurisdiction by the government of a state, namely the executive
branch of government the most obvious state officials exercising enforcement jurisdiction
are therefore those officials who are authorized to use force, such as police officers and
military personnel.
The exercise of enforcement jurisdiction outside a state’s territory is therefore prohibited
under public international law.
- The exercise of enforcement jurisdiction in the territory of another state is only
allowed if the other state has consented to the exercise of jurisdiction.
o Such consent may be given after the wrongful act has already occurred but
consent can also be given in advance by means of a treaty.
In that case, the state exercising enforcement jurisdiction, may rely on a
‘permissive rule’ of public international law.
Also, court judgments cannot be enforced in the territory of another state without the
permission of that state (permission can be provided by means of a general statute)
Finally, the exercise of enforcement jurisdiction by a state outside its territory is not only
generally prohibited when it is exercised on the territory of another state, but also when it is
exercised at sea in an are that is subject to its sovereignty of another coastal state or in an
area in which a coastal state may exercise sovereign rights.
Prescriptive jurisdiction
The terms ‘prescription’ and ‘legislation’ refer to the prescription of rules that are generally
applicable to an unspecified number of addressees but prescription and legislation may also
include decisions addressed to a limited number of people or entities.
The exercise of prescriptive jurisdiction is generally limited to the territory of
the prescribing state. The jurisdiction of states follow the principle of
sovereignty and that is linked to the territory of a state.
The exercise of prescriptive jurisdiction is less intrusive than the exercise of enforcement
jurisdiction and for that reason public international law allows states a large measure of
discretion to extend the scope of their legislation outside their territories. By extending the
scope of their legislation to persons, property, and acts outside their own territory, states can
exert significant influence outside their territory, which may interfere with the sovereign rights
of other states.
While public international law does not explicitly permit the exercise of
prescriptive jurisdiction, it does appear to require a genuine link between a
state exercising prescriptive jurisdiction outside its own territory and the
persons, property, or acts affected by such legislation.
, 1. Territoriality principle: justifies the extra-territorial application of domestic legislation
in case of a genuine link between the person, property, or act affected by the
legislation and the territory of the prescribing state. Some crimes have transboundary
elements and can be seen as taking place in multiple states
a. Subjective territoriality principle: justifies the application of domestic
criminal law in relation to a crime that is instigated (or begun) on the territory
of that particular state but that is subsequently completed in another state
b. Objective territoriality principle: justifies the application of domestic criminal
law by the state where such crime is completed, even though the crime was
instigated in another state.
2. Nationality principle: a state may choose to extend the application of some of its
criminal laws to its nationals abroad who are actively committing a crime (active
nationality principle) and to anyone committing crime against one of its nationals
(passive nationality principle).
3. Protective principle: allows state to extend the application of their domestic
legislation to persons, property and acts outside its territory in order to protect their
vital interests, such as the protection of the state and the protection of the head of
state
Justifies the extra-territorial application of domestic legislation in relation to
persons who do not possess the nationality of the prescribing state and in
relation to conduct that takes place outside of the territory of the prescribing
state, without any territorial link. Only justified because the vital interests of the
state are at stake and it appears that this is only applied in relation to domestic
criminal laws
4. Universality principle: justifies the extra-territorial application of domestic legislation
in relation to persons who do not possess the nationality of the prescribing state and
in relation to conduct that takes place outside the territory of the prescribing state and
in the absence of any territorial link.
However, the universality principle must be distinguished from the protective
principle because it aims to protect different interests. The universality
principle aims to protect universal values and universal interests. The
protective principle aims to protect the vital interests of the prescribing state
Many states have chosen to extend their domestic criminal legislation to
anyone outside their territories who has been involved in the commission of
international crimes such as war crimes, crimes against humanity, and
genocide.
A case is only admissible before the ICC if a state that has jurisdiction is unable or unwilling
to genuinely carry out an investigation or prosecution. The exercise of universal criminal
jurisdiction in the absence of a multilateral treaty that requires the establishment of universal
jurisdiction has been controversial.
5. Concurrent jurisdiction: in view of the freedom of states to extend their legislation to
persons, property and acts outside their territories, there is a reasonable chance that
a person, property or an act is subject to the jurisdiction of multiple state
concurrence of jurisdiction
, the availability of evidence may under such circumstances be a relevant
factor. If no agreement is reached among the relevant states, than the
accused must rely on general principles of criminal law that prevent him or her
from being prosecuted twice for the same crime.
Adjudicative jurisdiction
Adjudication is the exercise of jurisdiction by a court of a state, in particular the judicial
branch of government. The exercise of adjudicative jurisdiction is a manifestation of
governmental power and derives from the principle of sovereignty the power of a court to
hear a case, it is limited to the territory of a state
There is a genuine link between a state exercising adjudicative jurisdiction in relation to
persons, property, and acts outside its territory. After all, a state may not only exert significant
influence outside its territory by means of legislation, but also by means of adjudication and
such influence may interfere with the sovereign rights of another state.
Adjudicative jurisdiction of a state in criminal proceeding is linked with the prescriptive
jurisdiction of that state. Most states require a genuine link between either the parties to the
dispute or the subject matter of the claim and the so-called ‘forum’ state. Some states assert
adjudicagtive jurisdiction in civil and commercial matters without a genuine link if it appears
to be impossible to submit a civil or commercial claim before the courts of another state
forum necessitates (forum of necessity). Other states assert adjudicative jurisdiction in
civil and commercial matters if the interest of the parties dictates that the case be heard
before the courts of that state, which is known as the ground of forum conveniens (forum
of convenience).
Chapter 10 International Human Rights law
2. Development of International Human Rights Law
The importance of human rights was subsequently reflected in the United Nations Charter,
art. 1(3). The UN Charter does not impose any concrete human rights obligations upon UN
member states. Rather, these provisions provide a legal basis for the UN to act and
formulate human rights policies.
The Universal Declaration on Human Rights (UDHR) is not legally binding, but it
nevertheless, has significant authority and has influenced the development of the field. The
rights of the UDHR have subsequently been codified and developed in various legally
binding human rights instruments (ICCPR and ICESCR). Combined with the ‘proximity’ of
these enforcement mechanisms, regional treaties have practically become the most
important instruments in protecting human rights.
3. Categories of human rights
obligation to respect: requires states to refrain from interfering with the enjoyment of
human rights.
obligation to protect: states must prevent others from interfering with the enjoyment
of human rights
obligation to fulfil: requires states to take action to facilitate the enjoyment of human
rights
Week 1
Chapter 6 Jurisdiction
Enforcement jurisdiction
Enforcement: the exercise of jurisdiction by the government of a state, namely the executive
branch of government the most obvious state officials exercising enforcement jurisdiction
are therefore those officials who are authorized to use force, such as police officers and
military personnel.
The exercise of enforcement jurisdiction outside a state’s territory is therefore prohibited
under public international law.
- The exercise of enforcement jurisdiction in the territory of another state is only
allowed if the other state has consented to the exercise of jurisdiction.
o Such consent may be given after the wrongful act has already occurred but
consent can also be given in advance by means of a treaty.
In that case, the state exercising enforcement jurisdiction, may rely on a
‘permissive rule’ of public international law.
Also, court judgments cannot be enforced in the territory of another state without the
permission of that state (permission can be provided by means of a general statute)
Finally, the exercise of enforcement jurisdiction by a state outside its territory is not only
generally prohibited when it is exercised on the territory of another state, but also when it is
exercised at sea in an are that is subject to its sovereignty of another coastal state or in an
area in which a coastal state may exercise sovereign rights.
Prescriptive jurisdiction
The terms ‘prescription’ and ‘legislation’ refer to the prescription of rules that are generally
applicable to an unspecified number of addressees but prescription and legislation may also
include decisions addressed to a limited number of people or entities.
The exercise of prescriptive jurisdiction is generally limited to the territory of
the prescribing state. The jurisdiction of states follow the principle of
sovereignty and that is linked to the territory of a state.
The exercise of prescriptive jurisdiction is less intrusive than the exercise of enforcement
jurisdiction and for that reason public international law allows states a large measure of
discretion to extend the scope of their legislation outside their territories. By extending the
scope of their legislation to persons, property, and acts outside their own territory, states can
exert significant influence outside their territory, which may interfere with the sovereign rights
of other states.
While public international law does not explicitly permit the exercise of
prescriptive jurisdiction, it does appear to require a genuine link between a
state exercising prescriptive jurisdiction outside its own territory and the
persons, property, or acts affected by such legislation.
, 1. Territoriality principle: justifies the extra-territorial application of domestic legislation
in case of a genuine link between the person, property, or act affected by the
legislation and the territory of the prescribing state. Some crimes have transboundary
elements and can be seen as taking place in multiple states
a. Subjective territoriality principle: justifies the application of domestic
criminal law in relation to a crime that is instigated (or begun) on the territory
of that particular state but that is subsequently completed in another state
b. Objective territoriality principle: justifies the application of domestic criminal
law by the state where such crime is completed, even though the crime was
instigated in another state.
2. Nationality principle: a state may choose to extend the application of some of its
criminal laws to its nationals abroad who are actively committing a crime (active
nationality principle) and to anyone committing crime against one of its nationals
(passive nationality principle).
3. Protective principle: allows state to extend the application of their domestic
legislation to persons, property and acts outside its territory in order to protect their
vital interests, such as the protection of the state and the protection of the head of
state
Justifies the extra-territorial application of domestic legislation in relation to
persons who do not possess the nationality of the prescribing state and in
relation to conduct that takes place outside of the territory of the prescribing
state, without any territorial link. Only justified because the vital interests of the
state are at stake and it appears that this is only applied in relation to domestic
criminal laws
4. Universality principle: justifies the extra-territorial application of domestic legislation
in relation to persons who do not possess the nationality of the prescribing state and
in relation to conduct that takes place outside the territory of the prescribing state and
in the absence of any territorial link.
However, the universality principle must be distinguished from the protective
principle because it aims to protect different interests. The universality
principle aims to protect universal values and universal interests. The
protective principle aims to protect the vital interests of the prescribing state
Many states have chosen to extend their domestic criminal legislation to
anyone outside their territories who has been involved in the commission of
international crimes such as war crimes, crimes against humanity, and
genocide.
A case is only admissible before the ICC if a state that has jurisdiction is unable or unwilling
to genuinely carry out an investigation or prosecution. The exercise of universal criminal
jurisdiction in the absence of a multilateral treaty that requires the establishment of universal
jurisdiction has been controversial.
5. Concurrent jurisdiction: in view of the freedom of states to extend their legislation to
persons, property and acts outside their territories, there is a reasonable chance that
a person, property or an act is subject to the jurisdiction of multiple state
concurrence of jurisdiction
, the availability of evidence may under such circumstances be a relevant
factor. If no agreement is reached among the relevant states, than the
accused must rely on general principles of criminal law that prevent him or her
from being prosecuted twice for the same crime.
Adjudicative jurisdiction
Adjudication is the exercise of jurisdiction by a court of a state, in particular the judicial
branch of government. The exercise of adjudicative jurisdiction is a manifestation of
governmental power and derives from the principle of sovereignty the power of a court to
hear a case, it is limited to the territory of a state
There is a genuine link between a state exercising adjudicative jurisdiction in relation to
persons, property, and acts outside its territory. After all, a state may not only exert significant
influence outside its territory by means of legislation, but also by means of adjudication and
such influence may interfere with the sovereign rights of another state.
Adjudicative jurisdiction of a state in criminal proceeding is linked with the prescriptive
jurisdiction of that state. Most states require a genuine link between either the parties to the
dispute or the subject matter of the claim and the so-called ‘forum’ state. Some states assert
adjudicagtive jurisdiction in civil and commercial matters without a genuine link if it appears
to be impossible to submit a civil or commercial claim before the courts of another state
forum necessitates (forum of necessity). Other states assert adjudicative jurisdiction in
civil and commercial matters if the interest of the parties dictates that the case be heard
before the courts of that state, which is known as the ground of forum conveniens (forum
of convenience).
Chapter 10 International Human Rights law
2. Development of International Human Rights Law
The importance of human rights was subsequently reflected in the United Nations Charter,
art. 1(3). The UN Charter does not impose any concrete human rights obligations upon UN
member states. Rather, these provisions provide a legal basis for the UN to act and
formulate human rights policies.
The Universal Declaration on Human Rights (UDHR) is not legally binding, but it
nevertheless, has significant authority and has influenced the development of the field. The
rights of the UDHR have subsequently been codified and developed in various legally
binding human rights instruments (ICCPR and ICESCR). Combined with the ‘proximity’ of
these enforcement mechanisms, regional treaties have practically become the most
important instruments in protecting human rights.
3. Categories of human rights
obligation to respect: requires states to refrain from interfering with the enjoyment of
human rights.
obligation to protect: states must prevent others from interfering with the enjoyment
of human rights
obligation to fulfil: requires states to take action to facilitate the enjoyment of human
rights
