Jurisdiction and Immunity

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Jurisdiction and Immunity by Mind Map: Jurisdiction and Immunity

1. Types of Jurisdiction

1.1. Prescriptive

1.1.1. ability to regulate any matter it chooses

1.1.2. whether by legislation, executive acts, administrative rule or court decisions

1.1.3. generally unlimited: a State may legislate for any matter irrespective of where the event occurs or who is involved

1.2. Adjudicative

1.2.1. ability to subject persons or things to adjudication

1.2.2. whether judicial courts, administrative tribunals, military courts...

1.2.3. generally limited to State's territory SS Lotus Case (PCIJ) a State may not exercise its jurisdiction in the territory of another State - jurisdiction is essentially territorial int law does NOT prohibit a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad there was no rule of int customary law which gave exclusive jurisdiction of the State whose flag was flown... commentary: decision does not reflect contemporary customary int law, as now a State asserting jurisdiction over any given issue must show a positive basis of jurisdiction if challenged by another State

1.3. Enforcement

1.3.1. ability to induce or compel compliance or to punish noncompliance

1.3.2. dependent on prescriptive jurisdiction

1.3.3. generally limited to State's territory absolute within its own territory a State may consent to another State's enforcement actions in its territory

1.3.4. United States v Alvarez-Machain (SCOTUS 1992) Mexican citizen abducted from Mexico and transported to the US where he was charged with kidnapping and murder of a DEA agent 'the language of the [US-Mexico extradition] treaty, in the context of its history, does not support the proposition that the treaty prohibits abductions outside of its terms' 'to infer from this treaty and its terms that it prohibits all means of gaining the presence of an individual outside of its terms goes beyond established precedent and practice...' fact of the respondent's forcible abduction does not prohibit his trial in a court in the US for violations of criminal laws of the US

2. Grounds for asserting jurisdiction

2.1. Territorial

2.1.1. State's territory land and dependent territories airspace territorial sea + contiguous zone, continental shelf and EEZ (for limited purposes) cyberspace (?)

2.1.2. Objective territorial principle includes all activities that are completed within the State's territory, even though some element might have taken place elsewhere eg. Lotus case

2.1.3. Subjective territorial principle includes matters commencing in a State's territory, even though final element may have occurred abroad in case of competing jurisdictional claims

2.1.4. Extraterritoriality Al-Skeini and others v United Kingdom (ECtHR) concerned individuals killed by British armed forces operating in Iraq ECHR normally applies within the European legal space ECHR applies extraterritorially under exceptional circumstances Boumediene v Bush (SCOTUS) concerned application of habeas corpus to Guantanamo detainees govt argument: US has no sovereignty over Guantanamo, therefore Constitution does not apply Cuba retains de jure sovereignty; but US exercises de facto sovereignty ('complete jurisdiction and control') when US acts outside its borders, its powers are not absolute and unlimited but are subject to such restrictions as expressed in the Constitution case lacks any precise historical parallel

2.2. Nationality

2.2.1. Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws Art 1. It is for each State to determine under its own law who are its nationals. This law shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law genereally recognised with regard to nationality Art 2. Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of that State Art. 3 Subject to the provisions of the present Convention, a person having two or more nationalities may be regarded as its national by each of the States whose nationality he possesses

2.2.2. Nottebohm Case (ICJ) 1955 naturalization of Nottebohm was an act performed by Lichtenstein in the exercise of its domestic jurisdiction question is whether it has international effect 'nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of recriprocal rights and duties' the absence of any bond of attachment between Nottebohm and Lichtenstein naturalisation was NOT based on any real prior connection with Lichtenstein lacked the genuineness requisite to an act of such importance

2.2.3. Barcelona Traction Case (ICJ) 1970 does Belgium have a right to bring a claim against Spain on behalf of its nationals, who were shareholders of Barcelona Traction, a company incorporated in Canada? in the field of diplimatic protection of corporate entities, no absolute test of the 'genuine connection' has found general acceptance there can be no analogy to the Nottebohm case not disputed that the company was incorporated in Canada and has its registered office there only Canada can exercise right to diplomatic protection diplomatic protection a discretionary power since the claim is not identical with that of the individual or corporate person whose cause is espoused, the State enjoys complete freedom of action theory of diplomatic protection of shareholders as such would create atmosphere of confusion and insecurity right of protection not extinguished because it is not exercised

2.3. Universal

2.3.1. 'true' universal jurisdiction basis: customary int law crimes genocide war crimes crimes against humanity piracy slavery torture* (maybe treaty-based) drug-trafficking (?)

2.3.2. treaty-based basis: aut dedere aut judicare provisions in certain treaties either prosecute or extradite accused present in State's territory eg. Geneva Conventions 1949 Convention for the Suppression of Unlawful Seizure of Aircraft (Hague Convention) limited to States parties only (not 'true' universal jurisdiction) crimes hijacking of aircraft taking of civilian hostages acts of terrorism (?) torture financing of terrorism crimes against internationally protected persons (eg. diplomats) protection of cultural property in armed conflict apartheid

2.3.3. Case Concerning the Arrest Warrant of 11 April 2000 (DRC v Belgium) ICJ 2002 court did not decide whether there is a basis for universal jurisdiction under int law Separate Opinion of Judges Higgins, Kooijmans and Buergenthal there is no established practice in which States exercise universal jurisdiction there is equally no opinio juris on the illegality of such jurisdiction Duty to prosecute (aut dedere aut judicare) in certain treaties Lotus case is there a precondition for the accused to be within the territory of the State?

2.3.4. Belgian War Crimes Statute amended to include UJ for war crimes (1993) and genocide and crimes against humanity (1999) 2001: prosecution of Rwandan nuns and men for genocide 2001: criminal complaint against Ariel Sharon and Amos Yaron (Israel) proceedings opened against Yasir Arafat other criminal complaints: Fidel Castro; Saddam Hussein; DRC Foreign Minister Abuldaye Yerodia; former Iranian President Hasemi Rafsanjanil; 2002: ICJ rules arrest warrant against Mr Yerodia inconsistent with his immunity as Minister of Foreign Affairs 2003: Israel withdraws amabassador to Belgium 2003: criminal complaint against George W. Bush, Dick Cheney, Colin Powell, and Norman Schwarzkopf in relation to war crimes during 1991 Gulf War Powell warns Belgium that it risked its status as diplomatic capital/host state of NATO April 2003 amendment: only federal prosecutor can initiate cases if violation is overseas, offender not Belgian or in Belgium, and victim not Belgian or lived in Belgium for 3 years + discretion to refuse prosecution based interest of admin of justice/Belgium' int obligations not enough for US officials August 2003 amendment: courts can only hear cases if defendant or victim is a citizen or resident of Belgium; for defendants nationality or residence determined on date proceedings commence; for victims it is the date of the crime + only public prosecutor can move case forward effectively adopted the nationality principle

2.4. The 'effects' doctrine

2.4.1. asserts jurisdiction where an action by a person with no territorial or national connection with a State has an effect on that State effect can be economic harm indirectly caused by an act

2.4.2. can be considered an extension of the territorial principle, or an extension of the protective principle

2.4.3. essentially an American doctrine, originally applied in anti-trust situations controversial / disputed by other States

2.4.4. examples US sanctions on Iran, Sudan, Cuba resulted in fines to EU financial institutions even though transactions conducted through EU subsidiaries and in compliance with EU law, having only 'transited' through the US banking system EU regulation on the protection of animals in transport applies outside EU borders to transport taking place in third States, if that transport began on EU territory US Alien Torts Statute subject to presumption against extraterritoriality claims of Nigerian nationals resident in the US against 3 foreign corporations in respect of violations committed in Nigeria were precluded

3. Immunities

3.1. Personal (ratione personae)

3.1.1. complete immunity criminal acts Cf. ex parte Pinochet civil acts any other form of responsibility

3.1.2. limited to certain functions Head of State R v Bow Street Metropolitan... ex parte Pinochet Ugarte (no3) UKHL 1999 Head of Government Minister of Foreign Affairs Case Concerning the Arrest Warrant of 11 April 2000 (DRC v Belgium) ICJ 2002 Ambassadors Diplomatic & Consular immunities Vienna Convention on Diplomatic Relations 1961 Vienna Convention on Consular Relations 1963

3.1.3. limited in time (to period in office)

3.1.4. exceptions int criminal courts International Criminal Court State may waive immunity

3.2. Functional (ratione materiae)

3.2.1. applies only to official acts international crimes (?) Jurisdictional Immunities of the State (Germany v Italy) ICJ 2012 Cf. ex parte Pinochet (No 3)

3.2.2. extends to any official of the State

3.2.3. not limited in time

3.2.4. UN Convention on Jurisdiction Immunities of States and their Property Art 2(c) commercial transaction means: i) any commercial contract or transaction for the sale of goods or supply of services ii) any contract for a loan or other transaction of a financial nature, including any obligation of guarantee or of indemnity in respect of any such loan or transactions iii) any other contract or transaction of a commercial, industrial, trading or professional nature, but not including a contract of employment of persons Art 2(2) In determining whether a contract or transaction is a 'commercial transaction' under paragraph 1(c), reference should be made primarily to the nature of the contract or transaction, but its purpose should also be taken into account if the parties to the contract or transaction have so agreed, or if, in the practice of the State of the forum, that purpose is relevant to determining the non-commercial character of the contract or transaction. Art 5. A state enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention Exceptions immunity from execution Untitled