Lecture 17-Jurisdiction

• Jurisdiction is the authority a state exercises over natural and juristic persons and property within it.

• Some states may exercise a measure of jurisdiction exterritorially especially when acts performed within or outside the territory/quasi-territory have harmful consequences.

Lecture 17.1

• Levi classifies Jurisdiction into: 1.Temporal- relating to the time a state acquires or loses personality 2.Spatial- Relating to the physical area over which a state has jurisdiction over persons or things or transactions 3.Personal- Relating to the natural and juristic persons over which it has competence.

Lecture 17.2

4.Material- relating to the subject matter of jurisdiction.

The American Foreign Relations Law of 1986, breaks jurisdiction into three categories: 1. Jurisdiction to prescribe – Make laws whether by legislation,executive act or order by administrative rule or regulation or by determination of court.

Lecture 17.3

2. Jurisdiction to Adjudicate – the subjection of persons and things in both civil and criminal matters to the processes of the courts and administrative tribunals.

3. Jurisdiction to enforce whether in judicial or non-judicial action, the use of resources of government to induce or compel compliance with the law.

Lecture 17.4

• Schwanzenberger and Brown make the following classification: 1.Personal and Territorial/Quasi-territorial a) Personal or national jurisdiction is asserted by a state over its nationals on grounds of allegiance or protection. In personal jurisdiction, there must be a genuine link between the person and the state.

b) Territorial jurisdiction denotes the power of legislative,executive and judicial competence over a defined territory

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• It covers territorial and internal waters including ports and harbors.

c) Quasi-territorial jurisdiction is exercised by states over ships, aircraft and spacecraft as well as persons and things in them.

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2. Ordinary and Extraordinary jurisdiction: Is based on territorial, quasi-territorial or personal nexus whereas extraordinary jurisdiction covers pirates, war criminals,slave traders among other things.

3. Limited and Unlimited Jurisdiction: These deal with the exercise of power in the context of a multiplicity of states.

Lecture 17.7

• A state exercises generally unlimited jurisdiction over its territory, subject to limitations imposed by customary and Conventional Law.

• A state has limited jurisdiction over aliens in its territory as imposed by international minimum standards in favour of foreigners.

Lecture 17.8

• Similarly, a states’ jurisdiction over its nationals in a Foreign state is limited.

• A state’s jurisdiction in the high seas is also limited.

• Ben Cheng divides jurisdiction into 3 hierarchical orders: • 1.Territorial

• 2. Quasi-territorial • 3.Personal.

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• Each of the above is further divided into what he coined as JURISFACTION and JURISACTION.

• A State May Legislate For Its Nationals In A Foreign State,i.e JURISFACTION (possession of jurisdiction) • But it actually enjoys the p ower to enforce the legislation on them on its own territory/quasi territory (JURISACTION) i.e enjoyment of jurisdiction.

Lecture 17.10

• Other classifications have been introduced with greater particularity: a) Active National Principle: A state claims the right to try its nationals for certain serious offences wherever they may be committed although this may only be put into effect when they come within its jurisdiction

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b) Passive Nationality Principle:In this case the victim of the wrong for which the state is eeking to punish is a national while the accused is and the event took place outside its jurisdiction. In the LOTUS CASE, Judge Moore said the exercise of jurisdiction on the passive nationality principle is contrary to international law.

Lecture 17.12

• A state may exercise jurisdiction over aliens or nationals who commit crimes against its security.Such offences concern currency,immigration, subversion among others US vs Pazzarusso.

c) Universality Principle; Adopted to punis a non national who is guilty of a serious crime that is generally repressed and for which the state in which the accused is present has refused to try or extradict him, e.g piracy and murder and terrorism

Lecture 17.13

• The jurisdiction to try an offender may be based on a treaty as in the convention to prevent and punish the acts of terrorism.

• Two more principles are propounded to cover situations where an offence is commenced within one state and completed in another:

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1.

2.

Subjective Territorial Principle: states punish for crimes commenced within the jurisdiction but consummated outside e.g shooting a gun from state territory and killing someone across the frontier.

Objective territorial Principle: This punishes for crimes commenced outside but consummated within territorial jurisdiction,e.g, shooting a gun from across the frontier and killing someone within.The harmful activities of multinational Corporations can be taken up under this principle.