“As a general rule, a State’s prescriptive jurisdiction is unlimited and a State may legislate for any matter irrespective of where it occurs, (even if in the territory of another State) or the nationality of the persons involved,” ANON.
The article below discusses the bases on which the assertion of a state’s jurisdiction may be grounded.
Introduction:
The concept of territory is of great significance in the analysis of the international legal system. Indeed a key development of international law has been the basis on which a state has exclusive authority over a defined territory. This is a fundamental concept of international law.[1]The development of the norm of respect of states’ territoriality, which is also a source of international law, has helped to address the challenges of territorial disputes which have been a major source of conflict in the relations between states.[2] In the early centuries of the Westphalian order acquisition of territory was one of the major motivations of foreign policy. Most wars concerned acquisition of territory which led to a change of territory. These practices were reflected in the legal norms concerning the legitimacy of conquest.[3]
In the 19th century during the age of nationalism, intellectual concepts such as sovereignty and national self-determination altered people’s views concerning the legitimacy of territorial conquests.[4] The assertion of this moral change took the form of Article 10 of the League of Nations Covenant whose approval constituted the beginning of states’ formal support for the territorial integrity norm. Woodrow Wilson’s 14th point urged the members of the League to respect and preserve territorial integrity against external aggression and also respect and preserve the existing political independence of all its members. In the post-WWII era, the UN encouraged the acceptance of the norm of sovereignty-as-territorial integrity. The UN charter of 1945 affirmed states’ are obligated not to use force to alter states’ boundaries.
Barnett and Finnemore on the other hand argue that territory is historically contingent and the concept only rose to prominence in the 17th century owing to the centralization of administrative power within the State.[5] Since then, however, there are various modes of acquisition of title to territory recognized in international law which can alter states’ boundaries. They include Boundary treaties and boundary awards, the exercise of effective control (occupation and prescription), cession, conquest and use of force (annexation), accretion (avulsion).[6] The state’s control of a defined territory is based on the concept of sovereignty, except for certain exemptions, where a state can exercise this control beyond its territory. This paper argues that a state’s prescriptive jurisdiction is unlimited based on evidence of laws passed and evidence where states were not limited by territory or nationality to exercise jurisdiction.
The Nature of Jurisdiction
In general, jurisdiction allows states to give effect to the sovereign independence which they are endowed within a global system of formally equal states, through stating what the law is relating to persons or activities in which they have a legal interest.
Jurisdiction relies on the territorial dimension of sovereignty. A State’s jurisdictional assertions within its territory are in principle lawful, while assertions outside its territory are presumptively unlawful. This emphasis on territoriality is a reflection of the persistent Westphalian bias of the international legal order. However, the position of this paper is that with the advent of the 21st century and attributes which are unique to it like technological advancements which do not adhere to the traditional physical limitation of territory, states, and non-state actors are exceedingly acting beyond their physical jurisdictions. In an increasingly globalized world, the internet and the technology supporting it has made territoriality obsolete, in the subjective sense that the scope and level of interaction of individuals is now worldwide. However objectively states have not yet surrendered their claim to territorial jurisdiction. Indeed core concepts in international relations such as national interest, national security, and key theories like realism that assert the importance of the state as a self-interested actor within an anarchic, self-help international system remain evermore relevant today.[7] As a result, jurisdictional analyses have remained centered on territorial connections, even where such connections become increasingly artificial, e.g., in the case of essentially non-territorial cyberspace, or global climate change.
However, the traditional state-centric notion of territorial jurisdiction has had its challenges. In pre-modern times sovereignty was conceived of in a more tribal or community sense: people were subject to the laws of the community or tribe to which they belonged, rather than those of the territory on which they resided at a given moment.[8] Recently this non-state-centric concept of jurisdiction has been revived where individuals identify with transnational communities rather than with territorially-bound states, and on this basis, they are advocating for an overhaul of the ‘obsolete’ territory-based jurisdictional scheme.[9]
With these two different positions in mind, there are two dimensions observable in the law of jurisdiction, the negative dimension where states are in principle not allowed to assert jurisdiction over affairs that are in the domain of other states, and the positive dimension where states may sometimes be obliged to exercise jurisdiction especially in respect of values dear to the international community. This paper supports the latter positive dimension.
Bases on the assertion of State Jurisdiction
State jurisdiction is the capacity of a state under International Law to prescribe the rules of law, (legislative/prescriptive jurisdiction), enforce the prescribed rules of law (executive jurisdiction), and adjudicate (judicial jurisdiction). This jurisdiction the paper argues may extend beyond its territory, irrespective of where issues occur or the nationality of the persons involved. Prescriptive jurisdiction refers to the power of a State to regulate people, property, and transactions or to prescribe conduct usually through the passage of laws or regulations. It is on the basis of this that there are principles upon which the State can assert its jurisdiction within and beyond its boundaries.
The principle of territorial jurisdiction is derived from the concept of state sovereignty and is the most dominant. It asserts a state’s right to exercise jurisdiction is universally recognized. However, on transboundary issues, two competing principles arise the subjective territorial principle and the objective territorial principle. This issue has tended to be ambiguous. For example in the Lotus case the Permanent Court of International Justice rule in favor of the objective territorial principle while the Lotus principle was overturned by article 11(1) of the High Seas
Convention, 1958 which was in favor of the subjective territorial principle. [10][11]
Apart from territorial jurisdiction, the law of prescriptive jurisdiction features a number of principles that allow states to exercise jurisdiction on an extraterritorial basis, especially in criminal law. These principles are usually premised on a link with the asserting state, notably nationality (the active and passive personality principles, which tie jurisdiction to the nationality of the perpetrator and the victim respectively), or political independence (the protective or security principle).[12]The universality principle, in contrast, premises jurisdiction on the nature (gravity) of the crime rather than on a particular nexus with a state, although in practice universal jurisdiction is often only exercised when the alleged perpetrator is present in the state’s territory.[13]
The basis for unlimited state’s prescriptive jurisdiction
This paper asserts that prescriptive jurisdiction should be unlimited and there are certain cases in which this argument can be supported. The principle of universal jurisdiction which is considered a universally recognized principle can render any conflicting treaty void. The basis for this presumption is the concept of Jus Cogens[14] which states a treaty is void, if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.[15] Therefore a state should have prescriptive jurisdiction for offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes,[16][17] and perhaps certain acts of terrorism, even where no other bases of jurisdiction is present.
Due to globalization and an increase in cross-border movements of goods, services, communication, people, and capital, the fundamental nature of jurisdictional immunity of states has changed and has led to the first categorical exception to the rule: the commercial exception.[18] The commercial exception is based on the doctrine of restrictive immunity, under which immunity is available as regards governmental activity, but not where the state is engaging in commercial activity[19]. For example, the Supreme Court of Austria in 1950,[20] in a comprehensive survey of practice, concluded that in the light of the increased activity of states in the commercial field the classic doctrine of absolute immunity had lost its meaning and was no longer a rule of international law. This means states could pursuit prescriptive jurisdiction especially with regard to cases of a commercial nature.
Challenges of unlimited prescriptive jurisdiction
It will be prudent to note that unlimited prescriptive jurisdiction has its challenges that can be overcome if appropriately addressed. The argument of this paper is that this concept tends to be used for selfish gain by states which is rational considering the anarchic nature of the international system. The unilateral exercise of jurisdiction by states, or regional organizations, is a trend that will feature in the practice of international law as global problems start to become remodeled in local terms.[21] However, as mentioned above, due to the anarchic and self-help nature of the international system such unilateralism leads to abuse by economically and politically powerful states.
The whole question of jurisdiction is complex, not least because of its relevance but also due to constitutional issues and conflict of laws rules. International law has attempted to set down rules dealing with the limits of a state’s exercise of governmental functions, conflict of laws (or private international law) which attempts to regulate cases involving foreign elements, and whether a particular country has jurisdiction to determine the question.
The practice of judicial deference to the foreign policy prerogatives of the political branches of government limits the contribution judicial decisions can make as a key source jurisprudence in international law especially within this context, the area of prescriptive jurisdiction. Stronger states tend to contemptuously disregard the pursuit of unlimited prescriptive jurisdiction by weaker states against them and this behavioral pattern complements the nature of an anarchic self-help international system. On the same note when the tables are turned and it’s the stronger states in pursuit of unlimited prescriptive jurisdiction they usually tend to succeed. For example, the U.S. Supreme court in its own word protects “against unintended clashes between [U.S.] laws and those of other nations which could result in international discord” In reality, however, the presumption is a matter of judicial deference to the foreign policy prerogatives of the political branches, as congress rather than the judiciary “is likely to have superior informational and technical expertise on how to make a determination” whether a statute should have extraterritorial application. In other words, US courts may be at a disadvantage wouldn’t want their judicial decisions to be in conflict with the foreign policy objectives of other branches of the US government.[22]
Conclusion.
The state ultimately has valid bases on which it can have unlimited prescriptive jurisdiction but adherence to customary laws, treaties and conventions is crucial for order in an anarchic international system. As examined unlimited prescriptive jurisdiction is a dynamic concept touching on foreign policy, commercial, and human rights issues. There are two opposing forces where unlimited prescriptive jurisdiction can be used as a tool of achieving a state’s selfish foreign policy objectives as opposed to a noble cause where it can be used to address for example the pursuit of justice in cases of human rights abuses, genocide and war crimes that occur outside a state’s territorial jurisdiction.
There is also the area of Lex Ferenda dealing with future laws where issues arising in the 21st century around areas of, technology, intellectual property, and transnational organizations or movements, can be addressed by setting up regulatory regimes aided by the existing structures of international law. Understanding the concept of unlimited prescriptive jurisdiction will be crucial since these abstract issues which do not adhere to territorial jurisdiction and sovereignty will definitely create tension with the existing state-centric international legal system.
REFERENCES
Anglo-Norwegian Fisheries case, ICJ Reports, 1951.
Barnett Michael and Finnemore Martha, “The politics, power, and pathologies of international organizations,” International Organization 53, no. 4 (1999)
Berman, Paul S. “Global Legal Pluralism” Southern California Law Review 80 (2007): 1155-1237
Buxbaum Hannah L. “Territory, Territoriality, and the Resolution of Jurisdictional Conflict” The American Journal of Comparative Law 57, no. 3 (2009): 631-676
Case No. SCSL-2003-01-I, Decision on Immunity from Jurisdiction, 31 May 2004, 128 ILR, p.239
Gottman, Jean. The Significance of Territory. Charlottesville, University of Virginia Press, 1973.
Kassan, Shalom. “Extraterritorial Jurisdiction in the Ancient World” American Journal of International Law 29, no. 2 (1935): 237-247
Korman, Sharon. The right of conquest: the acquisition of territory by force in international law and practice. New York: Oxford University Press, 1996.
Morgenthau, Hans. Politics Among Nations: The Struggle for Power and Peace. 3rd Ed. Chicago: University of Chicago Press, 1954.
Shaw, Malcolm N. International Law. Cambridge, UK, Cambridge University Press. 2008.
The Lotus case PCIJ, Series A, No. 10, 1927.
The Charter of the Nuremberg Tribunal, 1945, Article 6
Vasquez, John. The War Puzzle. Cambridge, Cambridge University Press, 1997.
Vienna Convention on the Law of Treaties 1969 (VCLT) 179, 367 Article 53
[1] Jean, Gottman, The Significance of Territory (Charlottesville: University of Virginia Press, 1973).
[2] John Vasquez, The War Puzzle (Cambridge: Cambridge University Presss, 1997).
[3] Ibid
[4] Sharon Korman, The right of conquest: the acquisition of territory by force in international law and practice (New York: Oxford University Press, 1996).
[5] Michael Barnett and Martha Finnemore, “The politics, power, and pathologies of international organizations,” International Organization 53, no. 4 (1999)
[6] Malcolm N. Shaw, International Law (Cambridge, UK: Cambridge University Press, 2008) p.495-502
[7]Hans Morgenthau, Politics Among Nations: The Struggle for Power and Peace (3rd Ed. Chicago: University of Chicago Press, 1954).
[8] Shalom Kassan, “Extraterritorial Jurisdiction in the Ancient World” American Journal of International Law 29, no. 2 (1935): 237-247
[9] Paul S. Berman, “Global Legal Pluralism” Southern California Law Review 80 (2007): 1155-1237
[10] Anglo-Norwegian Fisheries case, ICJ Reports, 1951, p. 116; 18 ILR, p. 86
[11] The Lotus case PCIJ, Series A, No. 10, 1927; 4 AD, p. 23, 30
[12] Malcolm N. Shaw, International Law (Cambridge, UK: Cambridge University Press, 2008) p.652-668
[13] Ibid
[14] Vienna Convention on the Law of Treaties 1969 (VCLT) 179, 367 Article 53
[15] Ian Brownlie, Brownlie’s Principles of Public International Law (Oxford: Oxford University Press, 2012) p.1138
[16] The Charter of the Nuremberg Tribunal, 1945, Article 6
[17] Case No. SCSL-2003-01-I, Decision on Immunity from Jurisdiction, 31 May 2004, 128
ILR, p. 239, www.sc-sl.org/Documents/Taylor/SCSL-03-01-I-059.pdf.
[18]Malcolm N. Shaw, International Law (Cambridge, UK: Cambridge University Press, 2008), The Charkieh (1873) p.702 n19
[19] Malcolm N. Shaw, International Law (Cambridge, UK: Cambridge University Press, 2008) p.704
[20] Malcolm N. Shaw, International Law (Cambridge, UK: Cambridge University Press, 2008) p.704-7005 Dralle v. Republic of Czechoslovakia 17 ILR, p. 155.
[21] Hannah L. Buxbaum, “Territory, Territoriality, and the Resolution of Jurisdictional Conflict” The American Journal of Comparative Law 57, no. 3 (2009): 631-676
[22] Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659, 1664 (2013)
By Tuesday Orina Masaki