E. Jurisdiction of States

What is the difference between diplomats and consuls vis-à-vis the relations they are concerned with?

E. Jurisdiction of States

• Basis of Jurisdiction
• Territoriality Principle
• Nationality Principle and Statelessness
• Protective Principle
• Universality Principle
• Passive Personality Principle
• Exemptions from Jurisdiction
• Act of State Doctrine
• International Organizations and their Officers
• Diplomatic and Consular Law

What are the kinds of jurisdiction?

• Prescriptive jurisdiction refers to the power of a State to makes its law applicable to the activities, relations, or status of persons, or the interests of persons in things, whether by legislation, by executive act or order, by administrative rule or regulation, or by determination by a court.
• Adjudicative jurisdiction refers to a State’s jurisdiction to subject persons or things to the process of its courts or administrative tribunals, whether in civil or in criminal proceedings, whether or not the state is a party to the proceedings.
• Enforcement jurisdiction refers to a State’s jurisdiction to enforce or compel compliance or to punish noncompliance with its laws or regulations, whether through the courts or by use of executive, administrative, police, or other nonjudicial action.

1. BASIS OF JURISDICTION

What is the effects doctrine?

A State also has jurisdiction over acts occurring outside its territory but having effects within it. (Bernas, Public International Law, 2009)

Concept of Innocent Passage

Passage through territorial waters which is not prejudicial to the peace, good order, or security of the coastal State and takes place in conformity with UNCLOS and other rules of international law. A cruise ship may exercise innocent passage when navigating through the territorial sea in accordance with those requirements.

When is there a conflict of jurisdiction?

Since there are various accepted principles for assuming jurisdiction, more than one State may have a valid claim to jurisdiction. (Bernas, Public International Law, 2009).

Nature of the Obligations under ICCPR

The legal obligation under article 2, paragraph 1, is both negative and positive in nature.

States Parties must refrain from violation of the rights recognized by the Covenant, and any restrictions on any of those rights must be permissible under the relevant provisions of the Covenant.

Where such restrictions are made, States must demonstrate their necessity and only take such measures as are proportionate to the pursuance of legitimate aims in order to ensure continuous and effective protection of Covenant rights.

In no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right. [General Comment No. 31, ¶6]

States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party. [General Comment No. 31, ¶10]

What are the modes to resolve the conflict?

• Was there an actual or intended effect on the State acquiring jurisdiction?
• Is the effect sufficiently large to present a cognizable injury?
• Are the interest and link to the State sufficiently strong, vis-à-vis those of other nations, to justify an assertion of extraordinary authority?

If the answer is yes to all, then the court will assume jurisdiction. (Timberlane Lumber Co. v. Bank of America, 549 F2d 597, 1976).

International Comity

International comity may counsel restraint in exercising jurisdiction. In Hartford Fire Insurance Co. v. California, the Court found no conflict warranting abstention because compliance with both States’ laws was possible. (Hartford Fire Insurance Co. v. California, 509 US 764, 1993).

What is reserved domain of domestic jurisdiction?

It is the domain of state activities where the jurisdiction of the state is not bound by international law. The extent of this domain depends on international law and varies accordingly to its development (i.e., when a norm crystallizes into custom).

The reservation of this domain is without prejudice to the use of enforcement measures under UN Charter, Ch. VII

2. EXEMPTION FROM JURISDICTION

What are the rights of states?

• Jurisdiction
• Equality
• Individual or collective self-defense
• Independence
• Legation