PRINCIPLES OF JURISDICTION IN INTERNATIONAL LAW
Author: Siddhant Sharma, III year of B.B.A.,LL.B. from The Northcap University
Co-author: Shradha Zutshi, III year of B.B.A.,LL.B. from The Northcap University
“Let justice be done though the heavens fall” – Lord Mansfield
This quote is an excellent start to aptly describe the necessity of delivering justice and its importance, and to deliver justice, jurisdiction is a determining factor. Anything beyond jurisdiction becomes a subject matter of incapability and incompatibility and hence, jurisdiction and its types play a pivotal role in the whole facet of the legal world. Jurisdiction resonates quite a lot with the authority of a particular State to touch upon the lives of people, property and also the arising situations or circumstances within its territory. When we say that the legal organs have power conferred to them to deal with legal issues, the ambit of jurisdiction comes into play. From the lens of international law, jurisdiction has its strong roots in the grass of sovereignty and thereby, an efficient foundation of justice is laid...
Principles of jurisdiction defined
The territorial jurisdiction of States
The origin of this is attributed to sovereignty. The main essence of the same is the authority of a particular State on its citizens, the given situations in that state, the property of that state and other circumstances that may arise or are existing in that state. In the case of territorial jurisdiction, we can observe that it implies the geographical boundaries i.e. landmass, territorial seas, the airspace of that state, internal waters etc.
In case if a crime is committed in a state, the state can take action as it is under its jurisdiction and also in case if a crime is committed and its repercussions are seen in the state’s territory, then also that particular state can take action.
In the case of UK v NORWAY, the United Kingdom approached the International Court of Justice for the sake of determining the territorial authority of Norway w.r.t to the extension of the Sea. The UK also wanted compensation to be given to it as Norway had infringed and interfered with the UK's fishing apparatus. The UK contended that Norway’s claim to that particular degree of extent is arbitrary. In this case, it was held by the ICJ that the claim by Norway to the waters was genuine and was incompatible with the rules of ICJ.
The phenomenon of criminal jurisdiction, as the name suggests arises wherein an offence is committed and the court has powers to deal with such kinds of cases. A person alleged to have committed a crime can be tried under this jurisdiction.
Talking about it through the lens of PIL, a case namely SS LOTUS CASE is best suited. This case revolves around a French national on whom Turkey gave a declaration, with the person being an officer of the ship with whom the ship of Turkey had crashed into in the high sea. The French government stated that such a declaration is against international law.
However, the court had a different opinion and held that Turkey had the power to arrest the French national by the treaty of Lausanne and thus, the challenge by France bowed down to the verdict in favour of Turkey.
Even in the criminal jurisdiction, there are 2 types-
Territorial jurisdiction- pertinent to the geographical limits
Nationality jurisdiction- this allows a state to exercise its criminal jurisdiction over nationals being accused of crimes in other states.
Furthermore, this diverges into
Active nationality- this principle pertains to protecting the interest of the State from foreign entities/abroad. It relates to the fact that if too much strictness is present in terms of application on territory, it could prove to be causing harm to the peaceful and harmonic relation of international society. It also states that it is a matter of fundamental right of a State to use its laws to punish illegal acts or conducts.
Passive nationality- this principle states that a sovereign can adopt laws that can apply to the conduct of a foreign citizen/ person who commits crimes against the sovereign’s citizens. It, therefore, allows the state in a set of limited situations to claim jurisdiction for the trial of a foreign national for the crimes committed abroad which have the effect of affecting its citizens
The US also used this principle to have jurisdiction over a hijacker, who seized an American hostage on foreign land known as the Achille Lauro incident. In US v BENITEZ, the case was around a Columbian person, who was convicted for conspiracy of murder of a US citizen, a drug enforcement administration agent in Columbia. It was held by the court that the US could have jurisdiction as per passive personality.
This pertains to the principle that a state can have jurisdiction over some types of crimes committed by any person in any place of the globe i.e. worldwide. This means that territory, nationality do not have any role to play here. Types of crimes like genocide, war, torture and other forms of crimes against humanity come in this ambit.
It is in this principle believed that such kinds of crimes are a blot on the very fabric of the international community. Therefore with regards to crimes like genocide, torture, war etc, the jurisdiction is not limited to any border and every State has the power of jurisdiction in such cases.
A good example of this can be the prosecution done by Spain of Guatemalan officials in the Guatemalan genocide case. In this case, more than 20,000 Guatemalans died due to genocide, the reason being the country’s civil war. This was done when general Efrain Rios Montt came to power and called for a mission’ scorched earth’ which aimed at killing the Ixil Maya people. This came to be known as the ‘silent holocaust’ and the bloodiest span in the history of Guatemala. The Guatemalans were tortured, sexually abused and killed brutally.
CJA then got this case in 2006 and brought 40 Ixil Mayan people from Guatemala to Madrid to testify the quantum and nature of brutality upon them.
And then the Spanish proceedings helped Ixil Mayans.
It talks about a sovereign state and its adoption of a statute that criminalises acts or conduct which happen outside the borders and such conduct affects that state. In this principle, a state can adopt laws about the crimes or wrongdoings which can disturb the working/functions of the government or put under pressure the security of the state.
In the case of NICARAGUA v USA, in 1979, the Sandini state, which was a pro- soviet government, came into power in Nicaragua, the US authorities got alarmed as it was a sign of increasing cold war.
In 1981, the Reagan administration called for supporting the rebellions in Nicaragua known as Somosistas, who were citizens of the USA. So the central intelligence agency illegally ran secret operations and even kidnapped Nicaraguans. It was held by the ICJ that the US intentionally ignored the UN charter’s general rules and thus violated the territorial sovereignty of Nicaragua.
This case relates to article 51 of the UN charter- which provides for the states involved in self-defence and against armed force attack.
Cross frontier jurisdiction
In this type of principle, the court can recognize the jurisdiction over any conduct that applies outside its jurisdiction. A good example is the ACHILLE LAURO incident- in this case, the US decided to charge the terrorists with piracy under its criminal code related to the fact that whosoever commits piracy shall be imprisoned for a lifetime.
In this case, the US sought the extradition of terrorist leader Muhammad Abbas Zaiden, the one who hijacked the Achille Lauro vessel in the waters of Egypt and killed Leon Klinghoffer, an American citizen. Based on this the charges were put forth
Investigating the Israel-Jordan Peace treaty
The treaty which is in formal terms known through the name of” treaty of peace between the state of Israel and the Hashemite Kingdom of Jordan, is an agreement signed between two states which resultantly ended their war. The treaty also provided for better trade relations, settlement of water disputes and envisaged a basic foundation stone for peaceful relations.
The principles in this treaty were the separation of international boundaries between Israel and the state of Jordan, better diplomatic ties, a promise to give reverence to each other’s sovereignty and the territorial borders and not to enter them without asking for permission, also dispute related to water bodies were settled and both countries agreed to provide for help with regards to refugees from Palestine.
In case if jurisdiction of a particular state is in a parallel fashion to that of the other, then both of them can exercise the jurisdiction. This is observed in concurrent jurisdiction
Immunity: to be or not be, that is the question
We can refer to diplomatic immunity, wherein the diplomats are free from any criminal offences of the state they are stationed in. This is so done to maintain good relations within the states.
As we have discussed in-depth about the jurisdiction, we can safely say that jurisdiction is not just limited to one definition, its types and usages are vast and dynamic with regards to international law. As we came across various interesting cases that laid a foundation stone for the principles of jurisdiction to work upon, we saw as to how much importance is given in handling the facets of jurisdiction and therefore great care and caution is taken.