Public International Law 1 Dersi 5. Ünite Özet

Introduction

The exercise of jurisdiction by a state is an essential attribute of state sovereignty. The state jurisdiction signifies the power of a state to exercise control over persons, property, acts, and events under its national law. It “concerns essentially the extent of each State’s right to regulate conduct or consequences of events” (Oppenheim, 1993: 456). This includes the power to prescribe (prescriptive jurisdiction) and enforce (enforcement jurisdiction) as well as legislative, executive, and judicial rules. It may be civil and criminal, it may be concurrent with other states or it may be exclusive. “Jurisdiction” also connotes the competence of the court of law to try a particular dispute.

The Concept and Principle of State Jurisdiction

As a rule, every state exercises exclusive jurisdiction within its own territory. However, International law does not put any limitation on the state’s power to exercise jurisdiction beyond ts territorial limits. When a state exercises its jurisdiction beyond its territory, it is called extraterritorial jurisdiction. Restrictions upon the independence of states cannot be presumed. The Permanent Court of International Justice (PCIJ), in the S.S. Lotus (Bozkurt-Lotus) case (France v. Turkey, 1927), had laid down that there is no restriction on the exercise of jurisdiction by any state unless that restriction can be conclusively shown to exist as a principle of international law. Although it is true that there is no restriction on a state’s jurisdiction, however, states generally do not exercise jurisdiction over acts with which they have absolutely no concern. The territorial basis of jurisdiction normally is the starting point in this matter.

Civil Jurisdiction

In matters of civil jurisdiction, the municipal courts apply private international law in those cases where a foreign element is involved. However, in normal circumstances, courts are reluctant to exercise jurisdiction unless there is a substantial connection between the foreign element and the forum either by allegiance or by domicile. The defendant or the facts of the case should have some connection with the forum state. The exercise of jurisdiction without such a connection may be an ultra vires act, which could lead to international responsibility of the state. The matters related to the enforcement of civil jurisdiction involving criminal sanctions, do not differ substantially from criminal jurisdiction over aliens.

Criminal Jurisdiction

In criminal matters also, the “substantial connection” between the alleged offender or the offence with the state exercising jurisdiction is necessary. The state practice discloses four general principles on the basis of which states generally claim criminal jurisdiction. First, the territorial principle, that determines jurisdiction by reference to the place where the offence is committed. Second, the nationality principle, which determines jurisdiction by reference to the nationality either of the persons committing the offence even with respect to events occurring entirely abroad or with reference to the nationality of the person injured by the offence. Third, the protective principle that refers to jurisdiction according to the national interest of the state injured by the offence. Fourth, the universality principle that provides jurisdiction by reference to the nature of the crime (for example, piracy).

The Basis of Jurisdiction

Territorial Jurisdiction

The power of the state to exercise jurisdiction over persons, property, or events occurring within its territory is conceded by international law. All persons present, even transiently, and incidents occurring therein, are amenable to the state’s jurisdiction.

It is generally presumed that the laws and statutes of a country are limited to its territory unless a contrary intention appears and an extraterritorial application is established. In the Lotus case (France v. Turkey), the Court observed: “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 or from a convention” (PCIJ 1927: 18-19).

Jurisdiction According to Nationality Principle

A state may exercise jurisdiction on the basis of the nationality of the person. The person concerned is its national who has either committed the crime or is the victim of the crime. In such a case, the state may exercise jurisdiction against the alleged offender as and when he enters the territory of the state voluntarily or in consequence of legal proceedings leading to his extradition. The jurisdiction may be exercised on either of the two grounds: the active nationality principle and the passive nationality principle. In accordance with active nationality principle, state has the jurisdiction to prosecute and punish its juristic persons for a crime committed outside its territory. A state may exercise civil or criminal jurisdiction over its nationals on the basis that the nationality is a mark of allegiance which the person, charged with the crime, owes to his state of nationality. For this allegiance, the state provides diplomatic protection to its nationals. This jurisdiction can be exercised even by ignoring the changes of nationality, if the evidence of allegiance is clear enough. However, the territorial and nationality principles together may create the incidence of concurrent jurisdiction, leading to conflict of jurisdiction and possible double jeopardy unless resolved by clear rules about the priority between them.

On the other hand, in accordance with passive nationality principle, state may assume extra-territorial jurisdiction over aliens if the person suffering injury or a çivil damage is its national. However, the rule has always remained controversial. In the Lotus case, although the Court upheld the Turkish jurisdiction on this ground, it did not delve on the extent of the right of the state to protect its citizens abroad. The principle was rejected by all the dissenting judges. They found Article 6 of the Turkish Penal Code, which enabled Turkey to exercise jurisdiction over aliens for crimes committed abroad to the prejudice of any Turkish subject, contrary to international law (p. 75).

Sovereign Immunity

Under international law, certain degree of exemption and immunity from local jurisdiction is enjoyed by the following:

• Foreign sovereigns and foreign states,
• Foreign public ships,
• Foreign armed forces,
• International organizations,
• Diplomatic representatives and consuls of foreign states.

The concept of sovereign immunity is a principle of customary international law. A foreign sovereign or state is not amenable to the jurisdiction of the state of the forum unless it voluntarily submits to the jurisdiction of the local courts and the law enforcement agencies. However, there is no bar against the foreign sovereign initiating the proceedings in territorial state. The concept was earlier attached to the person of the sovereign, but later extended to the state and its organs. The two terms, state immunity and sovereign immunity, are often times used interchangeably.

Rationale of Jurisdictional Immunity

Several principles are quoted as the basis of jurisdictional immunity: Par in parem non habet imperium, i.e., an equal has no authority over an equal. The principle of non- intervention, i.e., the matters related to the acts, policy and transactions of a foreign state should not stand to scrutiny by the territorial state, lest it would amount to intervention in the internal matters of another state. Rule of comity or reciprocity, i.e., the accepted rules of mutual conduct as between states, which each state adopts in relation to other states and expects other states to adopt in relation to itself. It may otherwise be considered as an unfriendly act. Implied grant of license to a foreign sovereign or state to visit or function within its territory signifies immunity and imposes an implied obligation on the territorial state not to derogate from such a grant.

Immunities of International Organizations

International organizations such as the United Nations, the International Atomic Energy Agency, and the International Monetary Fund also enjoy certain measure of privileges and immunities from the jurisdiction of the territorial state. They require these immunities to carry out their duties properly. Since no precise customary rules exist on the subject, these immunities and privileges have been accorded to them under international agreements. Constitutions of these organizations also may have very imprecise provisions on the subject of immunity. For example, Article 19 of the Statute of the ICJ states that the “members of the Court, when engaged on the business of the Court, shall enjoy diplomatic privileges and immunities.” Article 105 of the UN Charter provides that the “Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.” Representatives of the members and the officials of the United Nations shall “similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.” Constituent instruments of various specialized agencies also contained similar provisions.

Diplomatic and Consular Relations

States normally conduct their mutual relations at the international level through diplomatic missions that are accredited permanently by a state to other countries. Diplomatic envoys are the authorized agents to help states in performing the acts of diplomacy, maintaining mutual relations, communicating with each other, or carrying out political or legislative transactions. Diplomatic missions provide an important link between the country which sends them and the country to which they are accredited.

The representation of a state in the territory of foreign States is a very old practice. However, the permanent appointments of diplomatic envoys began only in the 17th century. Their rights, duties, and privileges of diplomatic missions were mainly based on the principle of reciprocity. In 1815, the Congress of Vienna clarified and codified the law on the classification, order, and precedence of diplomatic envoys. In 1961, the UN Conference on Diplomatic Intercourse and Immunities at Vienna adopted the Vienna Convention on Diplomatic Relations (the 1961 Vienna Convention). The Convention, for the most part, is declaratory of the customary law, and it partly constitutes a progressive development of the law where the state practice was uncertain or inconsistent. The Convention has made it clear that “questions not expressly regulated by the provisions” of the Vienna Convention will continue to be governed by customary international law.

In 1963, the Vienna Convention on Consular Relations was adopted under the auspices of the United Nations. In 1969, the UN General Assembly adopted the Convention on Special Missions.