V.

JURISDICTION some of the elements of the offence took place

It is the authority of a State to exert its influence abroad
and power—in practice make, apply and enforce 2) Subjective Territoriality—where commenced;
its rules—and create an impact or consequence stipulates that a state has jurisdiction over all
on individuals or property. acts that are completed abroad as long as they
are initiated or planned on the territory of the
Forms of Jurisdiction: state in question
1) Jurisdiction to prescribe (ex. Criminalization
of robbery) EFFECTS DOCTRINE
2) Jurisdiction to enforce (ex: apprehension of -any State may impose liabilities even upon
the robber) persons not within its allegiance, for conduct
3) Jurisdiction to adjudicate—the right of a outside its borders that has consequences within
domestic court to receive, treat, and determine its borders which the state reprehends; and these
cases referred to them (ex. Subsequent liabilities other states will ordinarily recognize
punishment of the convicted robber)  1993 Wood Pulp Case (European Court of
Justice)
JURISDICTION TO PRESCRIBE  1945 Alcoa Case (United States Court of
-relates to the authority of a state to apply its Appeals)
national laws to any individual, property, or
event no matter where they may be located or JURISDICTION ON THE BASIS OF
occur. NATIONALITY
-states are only entitled to exercise their Active personality principle
legislative jurisdiction when it is supported by a -States may extend their laws to their own
permissive principle in international law nationals regardless of where they are located.
-there must be a “connecting factor” between the
acts or the behaviour that the state wants to Passive personality principle
prescribe and the legitimate interests of the state. -a State can assert its jurisdiction over an
offence committed abroad on the sole ground
International law permits a state to exercise its that the victim of the offence was a national of
prescriptive jurisdiction with respect to: the State
1. Conduct that wholly or substantially, takes -a state may punish non-nationals for crimes
place within its territory committed against its nationals outside of its
2. Status of persons, or interests in things, territory, at least where the state has a
present within its territory particularly strong interest in the crime.
3. Conduct outside its territory that has or is
intended to have substantial effect within its PROTECTIVE JURISDICTION
territory -a State may extend its jurisdiction over any
matter that has a deleterious effect on it
PRINCIPLES OF THE POWER TO regardless of where the acts occur or who has
PRESCRIBE: committed it.
1) Territorial jurisdiction -This requires the existence of a genuine threat
2) Jurisdiction on the basis of nationality to a vital state interest and must not therefore, be
3) The passive personality principle confused with the controversial effect doctrine
4) Protective jurisdiction whereby a state extends its laws to acts that
5) Universal jurisdiction merely have a negative economic effect in the
6) Concurring or Overlapping Jurisdictions state.
-The protective principle permits a nation to
assert jurisdiction over a person whose conduct
TERRITORIAL JURISDICTION
outside the nation's territory threatens the
-the most basic and uncontroversial basis of nation's security or could potentially interfere
jurisdiction; a state has jurisdiction over all acts, with the operation of its governmental functions.
whether criminal or not, committed on its (in relation to the topic of protective jurisdiction)
territory and over everyone located on the
Example:
territory of that state; a state can legislate as it
pleases on whatever matter it so desires (subject  Prohibition of falsification or counterfeiting
to limitations imposed under human rights law) of seals, currency, instruments of credit, stamps,
passports, or public documents issued by the
1) Objective Territoriality—where completed;
state
focuses on the effects of an offence and holds
that a state will have jurisdiction over an offence  Prescription in the 1960s of so-called pirate
that is completed on its territory even though radio broadcasting from unauthorized radio
stations on ships on the high seas.

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 -Extradition could not cover “political offenses”.
UNIVERSAL JURISDICTION -Conditions:
-certain offences are so serious and disruptive to ① It must be pursuant to a treaty;
international society that any state may claim ② The person to be extradited had been charged
jurisdiction over them no matter where they or
have been committed or by whom. convicted of extraditable offense; and
 Lack of direct link between the state and the ③ The extraditable offense is either (a) listed or
offence makes this unique (2) covered
 Crime of piracy that gave rise to the notion of by “Double or Dual Criminality
universal jurisdiction. Principle/Clause”
 Offences: violations of norms of peremptory
character/jus cogens: (1) genocide, (2) crimes Principles Governing Extradition
against humanity, (3) serious war crimes, (4)
1) Principle of Double Criminality—the offence
torture
involved must be a criminal offence in both
states concerned
2) Principle of Double Jeopardy (Ne Bis in
Two Situations Whereby Universal Jurisdiction Idem)—an individual should NOT be punished
can be asserted: twice for the same offence.
1) Universal jurisdiction in absentia—Where a 3) Extraditing states are bound by human rights
State asserts universal jurisdiction despite the conventions. (Ex: Obligation NOT to extradite
fact that the alleged offender is NOT even an individual to another state if there is a risk
present on its territory (pure form). that the individual may be subjected to inhuman
2) Aut dedere aut judicare—obligation of a state and degrading treatment in the receiving country
in an increasing number of treaties to either or in a third state to which the individual may
prosecute or extradite an alleged offender of subsequently be transferred. ART 3 ECHR;
specific offences who is located on the territory ART 7 UN Covenant on Civil and Political
of that State (second or more limited form) Rights; ART 3 UN Convention Against Torture
and Other Cruel, Inhuman or Degrading
Delicta Juris Gentium Treatment or Punishment
-crimes which offended the whole of mankind
and shocked the conscience of nations are grave Two Opposing Views on Legality of Abduction
offences against the law of nations itself. of Criminals in Foreign Territory:
1) A State should refrain from prosecuting an
Hostis Humani Generis individual brought into the State through
-enemy of mankind measures that violated international law.
2) Mala captus, bene detentus—a State can try
Par In Parem Non Habet Imperium an individual even if the State believes that the
- a sovereign state does not exercise dominion defendant was brought there by irregular means
over, and does not sit in judgment against
another sovereign state. Rule Of Specialty
-Under this rule, the requesting state is not
CONCURRING/ OVERLAPPING permitted to prosecute the extradited individual
JURISDICTIONS for offenses that is not covered by the request.
Principle of comity
-a State should limit the reach of its laws and VI. IMMUNITY FROM NATIONAL
defer to other States if those States have a JURISDICTION AND DIPLOMATIC
stronger link to a situation. PROTECTION
Immunity
JURISDICTION TO ENFORCE -one of the ways by which a national court may
General Rule: First and foremost restriction find that it lacks the competence to deal with a
imposed by international law upon a state is that matter that involves the interests of a foreign
—failing the existence of a permissive rule to state.
the contrary—it may NOT exercise its power in
any form in the territory of another State. STATE IMMUNITY
-It is based on customary international law.
EXTRADITION
-where a State hands over an individual located Two Conventions that Regulate State
on its territory who is wanted for criminal Immunity
prosecution in another state.

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1) European Convention on State Immunity
(1972) RESTRICTIVE THEORY OF IMMUNITY
o Adopted by the Council of Europe - holds that the immunity of the sovereign is
o Entry into force: 1976 recognized only with regard to public acts or
2) UN Convention on Jurisdictional Immunities acts jure imperii, but not with regard to private
of States and Their Property (2004) acts or acts jure gestionis.
o Adopted by the UN General Assembly
o Not yet in force but many of its provisions Acts Deemed Non-Sovereign and Non-Immune
reflect customary international law in Character (ART 2(1)(c) 2004 UN
Convention):
For purposes of State Immunity, the term 1. Any commercial contract or transaction
“State” includes: for the sale of goods or supply of services
1. State and its various organs of government 2. Any contract for a loan or other
2. Ministries transaction of a financial nature including
3. Diplomatic missions any obligation of guarantee or of indemnity
4. Armed forces in respect of any such loan or transaction
5. Any other instrumentality that perform acts in 3. Any other contract or transaction of a
the exercise of sovereign authority commercial, industrial, trading or
6. A “private entity,” that performs official professional nature, but not including a
sovereign acts contract of employment of persons
PLEAS OF IMMUNITY
STATE IMMUNITY AND VIOLATIONS
Adjudicative Jurisdiction
OF INTERNATIONAL LAW
- Relates to the jurisdiction of a court to render
judgment in a matter that involves a foreign state A foreign state should NOT be able to assert
state immunity in relation to violations of
- A state cannot be sued in a foreign court unless
international law, including human rights
it gives its consent; must be dealt with prior to
violations.
an inquiry on the merits of a case

Enforcement Jurisdiction EXCEPTIONS TO STATE IMMUNITY

- Concerns the administrative and executive IN THE UN CONVENTION ON
powers by whatever measures or procedures and JURISDICTIONAL IMMUNITIES OF
by whatever authorities of the forum state STATES AND THEIR PROPERTIES
- Concerns the administrative and executive (UN CJISP)
powers by whatever measures or procedures and
by whatever authorities of the forum EMPLOYMENT CONTRACTS
All issues in relation to employment contracts
DOCTRINE OF ACTS OF STATE are acts of jure gestionis character and thus non-
-a national court finds that it lacks the immune.
competence to rule on acts by foreign
governments, in its own territory and rejects the
ART 12, UN CJISP
case as non-justiciable.
Personal injuries and damage to
THE DISTINCTION BETWEEN
property. Unless otherwise agreed between
SOVEREIGN AND COMMERCIAL ACTS the States concerned, a State cannot invoke
IN ADJUDICATIVE JURISDICTION immunity from jurisdiction before a court of
Immunity rationae personae another State which is otherwise competent
-the practical effect of absolute immunity was in a proceeding which relates to pecuniary
that a national court had to refrain from compensation for death or injury to the
exercising jurisdiction over a matter on the sole person, or damage to or loss of tangible
ground that one of the parties to the dispute was property, caused by an act or omission
a state. which is alleged to be attributable to the
State, if the act or omission occurred in
Tt is well established that a foreign state only whole or in part in the territory of that other
enjoys immunity from a territorial state’s State and if the author of the act or omission
exercise of adjudicative jurisdiction in relation was present in that territory at the time of the
to sovereign or governmental acts (acts jure act or omission.
imperii) and NOT with regard to commercial or
private acts (acts jure gestionis).

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TERRITORIAL TORT PRINCIPLE
-but it does not apply when the acts done are IMMUNITIES OF STATE
committed by the armed forces of a state REPRESENTATIVES
NOTE: This exception only covers wrongful -They are immune from national jurisdiction
because they “personify” the state on whose
conduct that has occurred or been committed
behalf they act and because they need protection
in the territory of the forum state where the from national jurisdiction in order to fulfil their
author of the omission is also present in the functions as state representatives.
forum state.
IMMUNITY RATIONAE PERSONAE
LEX SITUS RULE ON IMMOVABLE (“PERSONAL IMMUNITY”)
PROPERTIES - Flows from the position a representative holds
-Immovable property forms an integral part in a state and is only enjoyed by a very small
group of individuals with certain high-level
of the forum state and therefore, not subject
governmental position as well as by diplomatic
to other laws. representatives on “special missions”
-Applies to BOTH official and private acts as
IMMUNITY FROM ENFORCEMENT well as to acts committed before and while the
-issue of immunity from enforcement only representative occupied his or her public
arises after jurisdictional immunity has been position.
dealt with and a national court has decided
against the foreign state. IMMUNITY RATIONAE MATERIAE
(“FUNCTIONAL IMMUNITY”)
Consequences Exclusive to Immunity from - Relates to functions the representative
Enforcement: performs and is enjoyed by ALL state
1) A waiver of immunity from execution must representatives.
be expressed separately (ART 20, UN CISP) - Does not apply to private acts but applies after
2) Unlike immunity from adjudication, the representative leaves his or her position for
immunity from enforcement is by and large public acts committed while in public service.
absolute
3) It may very well be that a national court IMMUNITY IF CERTAIN HIGHRANKING
concludes that a foreign State is not immune REPRESENTATIVE
from proceedings but is immune from any The forum state exercising jurisdiction against a
enforcement measures. foreign head of state, head of government, or a
minister of foreign affairs is under an obligation
Requisites of Enforcement Measures: to consider the issue of immunity and make its
1) The foreign state must have either expressly own consideration of whether or not immunity
bars the proceedings
consented to such measures or has allocated or
earmarked property for the satisfaction of the
IMMUNITY OF HEADS OF STATE IS
particular claim.
DERIVED FROM CUSTOMARY
2) Post-judgment measures of enforcement can
INTERNATIONAL LAW.
be taken if the property in question is based in
the Only a limited number of state representatives
enjoy immunity for both official and private acts
forum state and is specifically intended for
(immunity rationae personae). All other state
commercial purposes
representatives are merely protected by
3) The enforcement measure is taken against immunity in relation to the acts performed on
property that “has a connection with the entity behalf of the state they represent (immunity
against which the proceeding was directed.” rationae materiae).
[ART 19(c)]
Exceptions to Immunity Rationae Materiae:
1) Functional immunity from criminal
jurisdiction may NOT ALWAYS apply in
ABSOLUTIONIST PRINCIPLE relation to official acts committed on the
“the courts of a country will NOT implead a territory of the forum state. This is because of
foreign sovereign, that is, they will not by their the jurisdictional priority of the forum state on
process make him against his will a party to its own territory.
legal proceedings whether the proceedings 2) International crimes.
involve process against his person or seek to
recover from him specific property or damages.”

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DIPLOMATIC IMMUNITIES AND CONSULAR PROTECTION
PROTECTION In contrast to diplomats, consular officers only
ART 2, Vienna Convention on Diplomatic enjoy immunity rationae materiae in relation to
Relations functions performed in the exercise of their
The establishment of diplomatic relations official functions
between States, and of permanent diplomatic
missions, takes place by mutual consent. IMMUNITY FOR REPRESENTATIVE ON
“SPECIAL MISSIONS”
Ad hoc diplomacy
as an alternative or a supplement to the creation
of more permanent diplomatic and consular
ART 4, VCDR relations, a state may conduct “ad-hoc”
1.The sending State must make certain that the diplomacy and send state representatives on
agréement of the receiving State has been given “special missions” to other states.
for the person it proposes to accredit as head of
the mission to that State. Special mission
2.The receiving State is not obliged to give should be conceived as a temporary diplomatic
reasons to the sending State for a refusal of mission with the features of a regular diplomatic
agreément. mission, but for a limited period of time.
 Immunities of a representative on a special
ART 9(1), VCDR mission derive from the consent of the forum s
1.The receiving State may at any time and
without having to explain its decision, notify the
sending State that the head of the mission or any
member of the diplomatic staff of the mission is
persona non grata or that any other member of
the staff of the mission is not acceptable. In any
such case, the sending State shall, as
appropriate, either recall the person concerned or
terminate his functions with the mission. A
person may be declared non grata or not
acceptable before arriving in the territory of the
receiving State.
2.If the sending State refuses or fails within a
reasonable period to carry out its obligations
under paragraph 1 of this article, the receiving
State may refuse to recognize the person
concerned as a member of the mission.

IMMUNITY AND PROTECTION OF

DIPLOMATIC AGENTS

PROTECTION OF DIPLOMATIC
PREMISES AND PROPERTY

PROTECTION OF COMMUNICATION

OBLIGATIONS OF THE SENDING STATE

AND ABUSE OF PRIVILEGE
Remedies of a Host State if a Sending State
abuses Its Rights and Privileges
1) By declaring the representative persona non
grata. It can withdraw its consent in respect of a
member of the mission. In which cases, the
sending state MUST recall the individual or
terminate his or her functions. (ART 9, VCDR)
2) Host state may break off diplomatic relations
in serious case of abuse.

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