LCP4801 SUPPLEMENTARY EXAMINATION FOR
FEBRUARY 2022-PORTIFOLIO-INTERNATIONAL LAW-
DISTINCTION GUARANTEED-QUALITY WORK.
QUESTION 1
(a)
Jurisdiction is the capacity of a state to exercise its legislative, executive functions,
enforce its rights and functions in its territory. State jurisdiction is divided into 3 distinct
powers which are:
. Prescriptive jurisdiction: empowers the state to prescribe certain conduct through their
common law or national legislation.
. Enforcement jurisdiction: enables a state to enforce those laws (prescriptions).
. Adjudicative jurisdiction: is the states capacity to determine the outcome of a matter
through the exercise of enforcement jurisdiction by way of adjudicating what has been
prescribed.
Three principles form the basis of jurisdiction in international law are:
. State can not exercise its jurisdiction in the territory of another state unless there is a
rule allowing for this
. State must exercise jurisdiction in its own territory over acts occurring elsewhere,
unless there is an international law forbidding this
. In international law the territoriality of a criminal case is not absolute
,In the Lotus case (France v Turkey) 1927 PCIL Rep Ser A no 10, Jurisdiction of states
is primarily governed by customary international law and not treaty, state practice is
important. The Lotus (French ship) collided with a Turkish ship on the high seas – the
Turkish ship sank and a number of people died. The Lotus picked up survivors and went
to port in Turkey, where the officer on watch at the time of the collision was arrested and
convicted of culpable homicide. France objected to Turkey exercising jurisdiction and
the dispute was referred to the permanent court of international justice. France argued
that only the flagship of the Lotus (France) had jurisdiction over acts committed on
board the vessel in the high seas, while Turkey claimed that they had jurisdiction by
reason of the fact that the effects of the collision had been felt by the Turkish ship,
which was part of their territory.1
In as far as Lotus case is concerned, all crimes committed within the territorial
jurisdiction of the state may come before municipal courts and the accused can be
convicted and sentenced, even if the offender is a foreign national. A state had
jurisdiction over all criminal acts, which occur on its territory. A states territory includes
land, territorial waters, airspace, aircraft and flag ships. The problem is if the crime is not
committed wholly within the territory of one state. There are 2 approaches used which
are:
. Subjective approach: state has jurisdiction if the crime has began or commenced in its
territory, even if the crime is not completed there (initiary theory).
. Objective approach: a state can exercise jurisdiction if an offence is completed on its
territory – regardless of where the offence began (terminatory theory).
If an event began in one state, such state would have subjective territoriality and state
that was affected by such event, would have jurisdiction based on objective territoriality.
1
Lotus case (France v Turkey) 1927 PCIL Rep Ser A no 10.
, (b)
The basis of jurisdiction under International law are as follows:
. the principle of territoriality
. the nationality principle
. passive personality
. the protective principle
. the effects principle
. Universal jurisdiction
The principle of territoriality is the exercise of jurisdiction by states over acts committed
in their territory is by far the most common and least controversial basis for jurisdiction.
Strydom (2016) mentioned that in terms of the principle of territoriality: all crimes
committed (or alleged to have been committed) within the territorial jurisdiction of a state
may come before the municipal courts and the accused if convicted may be sentenced. 2
This is the case even when the offenders are foreign citizens.
In terms of the nationality principle, a state may choose to exercise jurisdiction over
crimes committed abroad (that is, extraterritorial jurisdiction) when they are commited
by nationals of that state. The link or connecting factor between the state and the
conduct in question is the nationality of the perpetrator.
Furthermore, in terms of the passive personality principle, a state may choose to
exercise jurisdiction over extraterritorial crimes committed, or intended to be committed,
against their nationals (and in some instances their ordinary residents). This principle is
in a sense the ‘reverse of the coin’ of the nationality principle.
In as far the protective principle is concerned, states have asserted the right to exercise
jurisdiction based on the crime concerned: these bases are protective jurisdiction,
effects-based jurisdiction and universal jurisdiction. The first of these, protective
jurisdiction, is ostensibly concerned with the special interest of a state that is affected or
2
Strydom H, International law (Oxford University Press 2016).
FEBRUARY 2022-PORTIFOLIO-INTERNATIONAL LAW-
DISTINCTION GUARANTEED-QUALITY WORK.
QUESTION 1
(a)
Jurisdiction is the capacity of a state to exercise its legislative, executive functions,
enforce its rights and functions in its territory. State jurisdiction is divided into 3 distinct
powers which are:
. Prescriptive jurisdiction: empowers the state to prescribe certain conduct through their
common law or national legislation.
. Enforcement jurisdiction: enables a state to enforce those laws (prescriptions).
. Adjudicative jurisdiction: is the states capacity to determine the outcome of a matter
through the exercise of enforcement jurisdiction by way of adjudicating what has been
prescribed.
Three principles form the basis of jurisdiction in international law are:
. State can not exercise its jurisdiction in the territory of another state unless there is a
rule allowing for this
. State must exercise jurisdiction in its own territory over acts occurring elsewhere,
unless there is an international law forbidding this
. In international law the territoriality of a criminal case is not absolute
,In the Lotus case (France v Turkey) 1927 PCIL Rep Ser A no 10, Jurisdiction of states
is primarily governed by customary international law and not treaty, state practice is
important. The Lotus (French ship) collided with a Turkish ship on the high seas – the
Turkish ship sank and a number of people died. The Lotus picked up survivors and went
to port in Turkey, where the officer on watch at the time of the collision was arrested and
convicted of culpable homicide. France objected to Turkey exercising jurisdiction and
the dispute was referred to the permanent court of international justice. France argued
that only the flagship of the Lotus (France) had jurisdiction over acts committed on
board the vessel in the high seas, while Turkey claimed that they had jurisdiction by
reason of the fact that the effects of the collision had been felt by the Turkish ship,
which was part of their territory.1
In as far as Lotus case is concerned, all crimes committed within the territorial
jurisdiction of the state may come before municipal courts and the accused can be
convicted and sentenced, even if the offender is a foreign national. A state had
jurisdiction over all criminal acts, which occur on its territory. A states territory includes
land, territorial waters, airspace, aircraft and flag ships. The problem is if the crime is not
committed wholly within the territory of one state. There are 2 approaches used which
are:
. Subjective approach: state has jurisdiction if the crime has began or commenced in its
territory, even if the crime is not completed there (initiary theory).
. Objective approach: a state can exercise jurisdiction if an offence is completed on its
territory – regardless of where the offence began (terminatory theory).
If an event began in one state, such state would have subjective territoriality and state
that was affected by such event, would have jurisdiction based on objective territoriality.
1
Lotus case (France v Turkey) 1927 PCIL Rep Ser A no 10.
, (b)
The basis of jurisdiction under International law are as follows:
. the principle of territoriality
. the nationality principle
. passive personality
. the protective principle
. the effects principle
. Universal jurisdiction
The principle of territoriality is the exercise of jurisdiction by states over acts committed
in their territory is by far the most common and least controversial basis for jurisdiction.
Strydom (2016) mentioned that in terms of the principle of territoriality: all crimes
committed (or alleged to have been committed) within the territorial jurisdiction of a state
may come before the municipal courts and the accused if convicted may be sentenced. 2
This is the case even when the offenders are foreign citizens.
In terms of the nationality principle, a state may choose to exercise jurisdiction over
crimes committed abroad (that is, extraterritorial jurisdiction) when they are commited
by nationals of that state. The link or connecting factor between the state and the
conduct in question is the nationality of the perpetrator.
Furthermore, in terms of the passive personality principle, a state may choose to
exercise jurisdiction over extraterritorial crimes committed, or intended to be committed,
against their nationals (and in some instances their ordinary residents). This principle is
in a sense the ‘reverse of the coin’ of the nationality principle.
In as far the protective principle is concerned, states have asserted the right to exercise
jurisdiction based on the crime concerned: these bases are protective jurisdiction,
effects-based jurisdiction and universal jurisdiction. The first of these, protective
jurisdiction, is ostensibly concerned with the special interest of a state that is affected or
2
Strydom H, International law (Oxford University Press 2016).
