6. Jurisdiction and sovereignty

General Principles of Jurisdiction
1. Two competing General Rules of Jurisdiction
  1. A state may not exercise its power of jurisdiction in the territory of another state (LOTUS CASE)
  2. A state is free to project its jurisdiction outside its territory, so long as it is not prohibited by a contrary rule of international law in a specific case
2. The Absolute Nature if Territorial Jurisdiction = a fundamental rule of international law where the jurisdiction of a state within its own territory incomplete and absolute -> 1st principle of the Lotus Case
3. The Jurisdiction to precribe= the power if a state to bring any matter withing the awareness of its national law -> 2nd principle of the Lotus Case
4. The Jurisdiction to enforce= enforcement of jurisdiction takes place within ones territory, unless there is an agreement that the enforcement can take place elsewhere
Civil and Criminal Jurisdiction (Generally the scopes of jurisdiction in civil and criminal matters are of equal extent - According to the Harvard Research Draft there are five heads of jurisdiction over persons in international law that apply equally to civil and criminal matters
1. Extra-Territorial Jurisdiction - Acts occurring abroad may cause an offence with local jurisdiction. Individual may be subject to local courts (an unusual form of jurisdiction)
2. Territorial Jurisdiction - Jurisdiction over matters arising in its own territory: 1. Obejective Teritoriality = an offense completed in your territory 2. Subjective Territoriality = an offense started in your territory
3. Nationality Jurisdiction - Jurisdiction over matters relating to the national of a state (wherever the action may have happened) 1. A national is entitled to 'diplomatic protection' of their state at all times 2. Jurisdiction will not be exercised until the national has return within the territorial boundary 3. Home state may not exercise jurisdiction if the matter has already been dealt with in the other state(s)
4. Protective Jurisdiction and the 'Effects' Doctrine - Jurisdiction over matters that have a harmful effect on 'the state', irrespective of where and by whom they happen, can be regarded as an accepted head of jurisdiction under customary international law - 'effects doctrine' = many states have legislated to include as many incidents as possible as having 'harmful effect' on the state, so as to claim more jurisdiction rights
5. Universal Jurisdiction - Jurisdiction over crimes that reach a certain 'destructive' level (agains ius cogens) - can be done by any state -> Jurisdiction will depend on the nature of the offence
6. Passive Personality Jurisdiction - Jurisdiction over matters relating to the national of a state who has been the victim of the crime, irrespective of the nationality of the offender or where the crime occurred. Concurrent Jurisdiction = The different heads of jurisdiction exist so that two or more states may be entitled to exercise their jurisdiction over the same person(s) in repsect of that same even. Double Jeopardy= It is possible that if enforcement action has or will be taken against an individual, that this person will be subject to a 'second punishment' by another state.
7. Firmly Established Principles : territorial, nationality (in both forms) and universal principles. Increasing Importance : Protective and effects principles
The acquisition of Sovereignty over Territory
1. The exercise of effective control - occupation and prescription: The control of territory and peaceful and effective exercise of the functions of a state therein is the primary means of acquiring title to territory in international law; this can be subdivided into two classes: Occupation= when the exercise of authority over territory occurs that does not belong to another state; Precription= when the exercise of authority over a territory occurs that formally belongs to another state. Kasikili/ Sedudu Island Case (Botswana v Namibia) four conditions for a successful claim of prescription were laid out: 1. the possession had to be exercised in the character of a sovereign 2. the possession must be peaceful and uninterrupted 3. The possession must be public 4. The possession must endure for a length of time
2. The following are further requirements that need to be met/ need to be present
  1. Intention to Acquire Sovereignty - There must also be a clear-cut intention of the sovereign to acquire this territory
  2. Apparent Display of Sovereignty - The state claiming title must have exercised the powers of a state within the territory has to show that it has set up an effective local administration, that it can control and protect the population or that it has established a system of national law -> this display may vary according to the type of territory in question -> absence of protests by other states is significant
  3. Continuous Display and the 'Critical Date' - The 'critical date' is the date at which the question of sovereignty is to be assessed - sovereignty must be present from the acquisition of the territory up to this date without interference
  4. Peaceful Display- There may be no objection by other states (but this must have extensive nature in order to pose a threat)
  5. Intertemporal Law - The law to be applied to a given dispute is the law in existence at the time the dispute is settled - the critical date. Consequently, title to territory may be validly created under the rules of international law existing at the critical date
  6. Discovery - Must be followed by acts of effective occupation to mature into full sovereignty otherwise other state can claim territoriy (Island of Palmas Case)
  7. Cession and Treaty - (cession =gift) Treaty ex. =Tge transfer of Alaska from the USSR to the USA
  8. Use of force - Conquest - was legal before 1945, but today such an acquisition of a territory is seen as being void/ illegal
  9. Accretion and Avulsion- Accretion=gain over new territory as a result of the expansion of its territory- ex. soil deposits in river deltas. Avulsion= more dramatic gains of new territories- ex. the creation of new islands in territorial waters due to volcanic activity
  10. Judicial Decisions - Judicial decisions ca give sovereignty over a territory based on the above principles, but only once the decision falls
  11. Uti possidetis and other Principles Relating to territorial Acquisition. Uti possidetis= the frontiers of newly independent states are to follow the boundaries of the old territory from which they emerged and they cannot be easily altered through unilateral action. Continuity Principle= a state may claim title over territory not forming part of its land mass - such as islands- by virtue of being the nearest sovereign state
  12. Self-Determination - This relates to a territory (often colonies or former union states such as with the USSR) becoming independent - the crucial point here is that self-determination requires a free and genuine expression of the will of the people concerned
RIghts over Foreign Territory - It is possible for one state to grant limited rights over its territory to another state, which may be done by treaty or it may arise by way of customary law
Areas outside the exclusive jurisdiction of any state
1. Outer Space - Every state enjoys jurisdiction over the airspace immediately above its territory and territorial sea - but how far up does it go? It ceases to exist where outer space begins = somewhere between 150 & 200 miles up from earth (unequal disagreement on where space really begins according to various states) -> 1963 Declaration of Legal principles governing the activities of states in the exploration and use of outer space
2. The Arctic- Consists mainly of frozen sea and isolated islands claims for sovereignty by Denmark & Norway. The greater area is composed of permanently shifting pack-ice claims of sovereignty by Russia and Canada - resistance by Norway & USA. Currently= there is some disagreement over the precise status of the Arctic -> there is no treaty in regime
3. The Antarctic- The area is subject to claims of sovereignty of 7 states: The UK, Argentina, Chile, France, Australia, New Zealand and Norway. It was suggested that the Antarctic should be part of 'the common heritage of mankind' -> 1959 the Antarctic Treaty
Jurisdiction over Airspace and Aircraft- A state has exclusive jurisdiction over the airspace immediately above its territory - unless otherwise agreed, a state may prohibit all aircraft movement over its territory and may take any action necessary to preserve its sovereignty. Formulation of the basic principles regarding jurisdiction over airspace-> 1944 Chicago Conference on International Civil Aviation

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6. Jurisdiction and sovereignty

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