7 – JURISDICTION and IMMUNITIES
Jurisdiction
Jurisdiction is states’ right to regulate (by enacting and enforcing laws) the conduct of natural and
juridical persons and to establish entities operating under constitutional/administrative law.
Jurisdiction can be prescriptive (power to enact laws), enforcement jurisdiction (power to enforce laws,
including via physical force), and adjudicative (exercised by the courts in applying and enforcing law).
Enforcement Jurisdiction
States can only enforce their laws inside their territory (sovereign equality, non-interference).
Lotus case (France v Turkey) (1927): “The first and foremost restriction imposed by international
law upon a State is that – failing the existence of a permissive rule to the contrary – it may not
exercise its power in any form in the territory of another State. In this sense jurisdiction is
certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a
permissive rule derived from international custom of from a convention.”
Exercise of extra-territorial enforcement jurisdiction requires some justification or consent, without
which it will be an internationally wrongful act giving rise to SR. This will not necessarily impact domestic
jurisdiction.
- Eichmann case (1961) (ex-Gestapo officer arrested in Argentina by Israel; unlawful abduction
meant satisfaction apology owed to Argentina, but didn’t affect jurisdiction for Eichmann’s trial)
- Cf. R v Horseferry Road Magistrates’ Court (ex p Bennett) (1994) (UK declined to follow
Eichmann – if extradition is available, courts will refuse to try O brought forcibly within its
jurisdiction by a process our executive agencies/police/CPS have known about)
Note this is UK position only, not IL
- Cf. US v Toscanino (US CA held if the presence of O is secured by force or fraud, it will affect
jurisdiction); Sosa v Alvarez-Machain (US SC said if the extradition treaty prohibited abduction,
no jurisdiction, but otherwise prosecution could proceed)
- Prosecutor v Dragan Nikolic (O forcibly taken from FRY to BH, handed to NATO and then ICTY;
chamber said sovereignty cannot play the same role for the tribunal as between states, but
where the accused is very seriously mistreated, may be legal bar to exercise of jurisdiction)
In all cases of unlawful abduction from another state, territorial sovereignty is breached which
entails SR; restitution will be owed, which means even if ML is willing to prosecute the offender,
the state may be obligated to return them.
Extradition treaties are bilateral agreements not based in CIL. Generally requires the crime to be
an offence in both states and adherence to the condition that O will only be tried and punished
for the offence for which extradition was granted. Offences of political character are often
excluded.
Fawcett suggests in a case of abduction, the state from which the offender was taken can only
demand O’s return if they declare an intention to put O on trial; otherwise must accept some
other reparation.
Jurisdiction
Jurisdiction is states’ right to regulate (by enacting and enforcing laws) the conduct of natural and
juridical persons and to establish entities operating under constitutional/administrative law.
Jurisdiction can be prescriptive (power to enact laws), enforcement jurisdiction (power to enforce laws,
including via physical force), and adjudicative (exercised by the courts in applying and enforcing law).
Enforcement Jurisdiction
States can only enforce their laws inside their territory (sovereign equality, non-interference).
Lotus case (France v Turkey) (1927): “The first and foremost restriction imposed by international
law upon a State is that – failing the existence of a permissive rule to the contrary – it may not
exercise its power in any form in the territory of another State. In this sense jurisdiction is
certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a
permissive rule derived from international custom of from a convention.”
Exercise of extra-territorial enforcement jurisdiction requires some justification or consent, without
which it will be an internationally wrongful act giving rise to SR. This will not necessarily impact domestic
jurisdiction.
- Eichmann case (1961) (ex-Gestapo officer arrested in Argentina by Israel; unlawful abduction
meant satisfaction apology owed to Argentina, but didn’t affect jurisdiction for Eichmann’s trial)
- Cf. R v Horseferry Road Magistrates’ Court (ex p Bennett) (1994) (UK declined to follow
Eichmann – if extradition is available, courts will refuse to try O brought forcibly within its
jurisdiction by a process our executive agencies/police/CPS have known about)
Note this is UK position only, not IL
- Cf. US v Toscanino (US CA held if the presence of O is secured by force or fraud, it will affect
jurisdiction); Sosa v Alvarez-Machain (US SC said if the extradition treaty prohibited abduction,
no jurisdiction, but otherwise prosecution could proceed)
- Prosecutor v Dragan Nikolic (O forcibly taken from FRY to BH, handed to NATO and then ICTY;
chamber said sovereignty cannot play the same role for the tribunal as between states, but
where the accused is very seriously mistreated, may be legal bar to exercise of jurisdiction)
In all cases of unlawful abduction from another state, territorial sovereignty is breached which
entails SR; restitution will be owed, which means even if ML is willing to prosecute the offender,
the state may be obligated to return them.
Extradition treaties are bilateral agreements not based in CIL. Generally requires the crime to be
an offence in both states and adherence to the condition that O will only be tried and punished
for the offence for which extradition was granted. Offences of political character are often
excluded.
Fawcett suggests in a case of abduction, the state from which the offender was taken can only
demand O’s return if they declare an intention to put O on trial; otherwise must accept some
other reparation.
