Jurisdiction in International Law: Civil and Criminal Aspects, Exercises of Law of Evidence

Download Jurisdiction in International Law: Civil and Criminal Aspects and more Exercises Law of Evidence in PDF only on Docsity! Students Note!! This material is obtained from copyright protected material and therefore MUST only be used for private study. It is not exhaustive and students should refer to additional sources. Week 7 JURISDICTION Jurisdiction concerns the power of the State to affect people, property and circumstances and reflects the basic principles of state sovereignty, equality of states and non-interference in domestic affairs. Jurisdiction is a vital and indeed central feature of state sovereignty. International Law tries to set down rules dealing with the limits of a states exercise of governmental functions. Civil Jurisdiction It is fair to say that the exercise of civil jurisdiction over a foreign national is not as contentious as criminal jurisdiction. Generally speaking, international Law doesn’t prescribe any particular regulations as regards the restriction of a court’s jurisdiction over civil matters. Criminal Jurisdiction Criminal jurisdiction concerns a courts power to try criminal cases where a foreign factor is present. There are a number of grounds upon which the courts may claim to exercise such jurisdiction. 1. Territorial Principle A country should be able to prosecute persons for offences committed upon its soil even where the offenders are foreign citizens (Lockerbie case). However the territorial concept is more extensive than this. The nature of territorial sovereignty in relation to criminal acts was examined in the Lotus case PCIJ (1927). It established the notion that, “the territoriality of criminal law, therefore is not an absolute principle of International Law and by no means coincides with territorial sovereignty”. In the Lotus case, the Lotus a French vessel collided with a Turkish vessel causing the death of 8 Turkish nationals on the high seas. When the Lotus reached a Turkish port, the French officer in charge of the Lotus was arrested and charged with manslaughter. France protested and took the matter to the PCIJ. The PCIJ ruled that there was no rule of International Law prohibiting Turkish exercise of jurisdiction and dismissed the French contention. However the stance the PCIJ took was later criticised by several leading International Law scholars especially as regards states possessing wide powers of jurisdiction which could only be restricted by a rule of International Law prohibiting the action concerned. Also to note is that Article 11 (i) of the High Seas Convention (1958) in essence overturns the Lotus ruling and emphasized that the flag state of an alleged offender has the jurisdiction to try cases where crimes are committed on the high seas. See also; Page 1 Students Note!! This material is obtained from copyright protected material and therefore MUST only be used for private study. It is not exhaustive and students should refer to additional sources. Anglo — Norwegian Fisheries case (ICJ Reports 1951, p116) 2. The Nationality Principle The nationality principle permits a country to exercise criminal jurisdiction over its nationals accused of criminal offences committed in another country. The problem is that there is no coherent accepted definition of nationality in International Law. There are only conflicting descriptions under different municipal laws. In the Nottenbohm case (ICJ Reports 1955) nationality was described as, “a legal bond having as its basis a social fact of attachment and sentiments together with an existence of reciprocal rights and duties”. It should ne noted that ships under the 1982 Convention on the Law of the Seaa have the nationality of the state whose flag they are entitled to fly. Under the Chicago Convention on International Civil Aviation, 1944 aircrafts have the nationality of the state where they are registered. 3. The Passive Personality Principle States may claim jurisdiction to try an individual for offences committed abroad but which has affected the nationals of the state. This however has been regarded as the most controversial of all the principles. However countries are now accepting it in the sphere of terrorism and other international crimes. This principle is based on a states duty to protect its citizens abroad. An example where this principle is applied is Article 9 of the International Convention against the taking of Hostages, 1979. 4. The Protective Principle States may exercise jurisdiction over aliens who have committed an act abroad but which is deemed prejudicial to the security of the particular state concerned. However it is clear that this principle can be easily abused. Nevertheless, it exists partly in view of the insufficiency of most municipal laws as far as offences against the security and integrity of foreign states. 5. The Universality Principle Each and every state has jurisdiction to try particular crimes which are regarded as particularly offensive to the international community as a whole. Such crimes include piracy, war crimes, crimes against peace and humanity as well as genocide. Page 2