By Atty KM Noveda

University of Cebu
School of Law

Jurisdiction Main reference:

Public International Law by
Miriam Defensor Santiago
(2015)
What is
jurisdiction?

“Jurisdiction refers to particular

aspects of the general legal
competence of states often
referred to as ‘sovereignty.’
Jurisdiction is an aspect of
sovereignty and refers to
judicial, legislative, and
administrative competence.”

• Ian Brownlie, Principles on Public

International Law
 What is
jurisdiction?
 The basis for jurisdiction is sovereignty.
 This was explained by Max Huber in the Palmas
Island case:
“Sovereignty in the relations between States
signifies independence. Independence in regard to
a portion of the globe is the right to exercise
therein, to the exclusion of any other State, the
functions of a State. The development of the
national organization of States during the last four
centuries and, as a corollary, the development of
international law, have established this principle of
exclusive competence of the State in regard to its
own territory in such a way as to make it the point
of departure in settling most questions that concern
international relations.”

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 Opinions are varied.

But, what is
international
jurisdiction?
Akehurst (Michael) in a Modern
Introduction to International Law:
“International law does not seem to impose
any restrictions on the jurisdiction of courts
in civil cases.”
 Opinions are varied.

But, what is
international
jurisdiction?
Brownlie thinks that there is no major
difference between international and criminal
jurisdiction:
“Indeed, as civil jurisdiction is ultimately reinforced by procedures of
enforcement involving criminal sanctions, there is in principle no great
difference between the problems created by assertion of civil and criminal
jurisdiction over aliens.”
But, what is  In any event, the so-called principles of
international jurisdiction in international law constitute
jurisdiction? limitations imposed by international law
on the jurisdiction of national courts.
Kinds of
Prescriptive Enforcement
Jurisdiction Jurisdiction Jurisdiction
 At the outset: State -the power to assert that -is the power to enforce
jurisdiction extends national law applies to national law within state
over persons, property, any person, property, territory. Territorial
territory, or event, jurisdiction is complete
and territory. There are wherever and whenever and absolute, unless
two kinds of they are situated or may modified by general
jurisdiction: transpire. principles of
prescriptive and international law or
enforcement. obligations freely
assumed by the state.
Kinds of
Jurisdiction  According to Draft Convention, there are five
categories of jurisdiction over persons:
(as per 1935
1. Territorial
Harvard
Research Draft 2. Nationality
Convention on 3. Universal
Jurisdiction 4. Protective
with Respect to 5. Passive Personality
Crime
Kinds of 1. Territorial Jurisdiction extends
Jurisdiction over all matters arising in the
(as per 1935 territory of a state.
Harvard
Research Draft 2. Nationality Jurisdiction extends
Convention on over all nationals, wherever they may
Jurisdiction be situated. Thus, under this concept,
with Respect to one could argue that a Filipino could
Crime be convicted of bigamy, even though
the second act of marriage takes
place outside of the Philippines.
(Academic opinion of Miriam
Defensor Santiago)
 3. Universal Jurisdiction extends to
Kinds of crimes against all mankind, which place
Jurisdiction the perpetrator beyond the protection of
(as per 1935 any state. Since they are grave offenses
Harvard against the law of nations itself.
Research Draft
Convention on Universal jurisdiction allows any state to
Jurisdiction assert criminal jurisdiction over offenses,
with Respect to even if the act occurred outside its
Crime territory, or was committed by a person
not its national, or inflicted no injury to its
nationals. The general rule is that
jurisdiction is territorial and therefore,
universal jurisdiction is the exception.
 3. Universal Jurisdiction’s exception is
Kinds of grounded on the imperative need to
Jurisdiction preserve international order.
(as per 1935
Harvard Crimes against international order fall
Research Draft under universal jurisdiction of any state.
Convention on The crime should not merely violate
Jurisdiction international law, but should constitute an
with Respect to attack against international order. They are
listed in the Nuremberg Tribunal Charter,
Crime
Art. 6, in the context of war, as: war
crimes, crimes against peace and crimes
against humanity.
Kinds of 3. Universal Jurisdiction
Jurisdiction
(as per 1935
In addition to the three crimes mentioned,
Harvard other crimes are subject to universal
Research Draft jurisdiction under treaties , such as piracy,
Convention on under the 1948 Geneva Convention on the
Jurisdiction High Seas (Art. 19), or major violations of
with Respect to the 1949 Geneva Conventions.
Crime
Kinds of 4. Protective Jurisdiction extends to any
Jurisdiction crime, regardless of where and by whom it
(as per 1935 is committed, which produces a
deleterious effect on the state. It operates
Harvard
extraterritorially, that is, it reaches acts
Research Draft which take place outside of state territory.
Convention on National laws of states include the
Jurisdiction protective principle.
with Respect to
Crime
Kinds of 4. Protective Jurisdiction
Jurisdiction
(as per 1935
More recently, national laws have
Harvard included the “effects” doctrine, under
Research Draft which that state claims jurisdiction over
Convention on any matter which produces an effect in its
Jurisdiction territory, whether or not the matter is
with Respect to adverse to some public or national
Crime interest.
Kinds of 4. Protective Jurisdiction
Jurisdiction
(as per 1935
Example: National of State X commits a
Harvard crime in State Y; but the crime has a bad
Research Draft effect on State X. State X could insist on
Convention on the prosecution of the national even if the
Jurisdiction crime was technically committed in State
with Respect to Y.
Crime
In the Philippines: Art. 2 of the RPC
provides extraterritorial commission may
still be actionable in the Philippines.
Kinds of 5. Passive Personality Jurisdiction is
Jurisdiction exercised by a state over all crimes where
(as per 1935 the victim was a national, regardless of the
place where the crime was committed, or
Harvard
the nationality of the offender.
Research Draft
Convention on
Jurisdiction This principle applies to both criminal and
with Respect to civil cases. However, this principle has not
Crime been accepted in customary international
law.
Kinds of 5. Passive Personality Jurisdiction refers
Jurisdiction to liability for injury sustained by a
national from events that occurred outside
(as per 1935 the territory of the state. This jurisdiction
Harvard is considered dated and can be traced to
Research Draft the landmark Lotus case.
Convention on
Jurisdiction In Lotus, two vessels—French and
with Respect to Turkish—collided on the high seas,
Crime resulting in the deaths of Turkish crew.
Turkey asserted jurisdiction and convicted
the master for manslaughter. France
brought the issue before the Permanent
Court of International Justice, which
found in favor of Turkey.
 Kinds of Jurisdiction
(as per 1935 Harvard Research Draft Convention on Jurisdiction with
Respect to Crime)

5. Passive Personality Jurisdiction

A CAVEAT ON THE LOTUS CASE–

the decision is problematic because of
two things:
1. No state has jurisdiction over the
high seas, and,
2. A ship has a nationality and the
crimes committed on that ship
should be considered as that
committed on national territory, to
begin with.
Kinds of 5. Passive Personality Jurisdiction
Jurisdiction
(as per 1935 But the Lotus case remains relevant in the
Harvard present times and in the advent of counter-
Research Draft terrorism efforts.
Convention on
Jurisdiction Example: The US enacted the 1986 Omnibus
with Respect to Diplomatic Security and Anti-Terrorism Act
Crime asserting extraterritorial jurisdiction over
terrorist acts abroad against U.S. nationals.
 Jurisdiction After Abduction

 It is a question whether a national court may exercise jurisdiction over an accused

person who was abducted from another country, in violation of general
international law or a specific treaty. Such jurisdiction was exercised by the
Supreme Court of both Israel and the US.

 The Israel Supreme Court in the Eichmann case did not consider the abduction as
detrimental to jurisdiction.
 Jurisdiction After
Abduction
*Adolf Eichmann was a German
Nazi-SS Lieutenant Colon and one of
the five major organizers of the
Holocaust, caught by famous Nazi
hunter, Simon Wiesenthal. He was
captured in Argentina and then
obtained by the Israeli forces in a
capture led by Mossad operative Rafi
Eitan.

Eichmann was smuggled out of

Argentina and he arrived in Israel on
22 May 1960.

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Jurisdiction After Abduction

In June 1960, after unsuccessful negotiations with Israel, Argentina

requested an urgent meeting of the UN Security Council to protest, as
they regarded the capture as a violation of their sovereign rights.

In the ensuing debate, the Israeli representative Golda Meir claimed

that the abductors were not Israeli agents but private individuals and
so the incident was only an “isolated violation of Argentine law.”

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Jurisdiction After Abduction

On 23 June 1960, the

Council passed a
Resolution (138), which
agreed that Argentinian
sovereignty was violated
and requested that Israel
should make reparations.

After further negotiations,

on 3 August, Israel and
Argentina issued a joint
statement admitting the
violation of Argentinian
sovereignty but agreeing
to end the dispute.
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Jurisdiction After Abduction

In Eichmann’s trial and

subsequent appeal, the
Israel court determined
that the circumstances of
his capture had no bearing
on the legality of his trial.

Eichmann was hanged on

01 June 1963.

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Effects Jurisdiction

Effects Jurisdiction is based on the controversial theory that

jurisdiction may be exercised over persons abroad, even if
non-nationals, for acts that took place abroad and produced
significant harmful effects within the territory asserting
jurisdiction. Like passive personality jurisdiction, effects
jurisdiction is highly controversial, with two vocal sides to
the debate.
Effects Jurisdiction

Those not in favor:

It is unlawful because no rule permits it. Territoriality is

the general rule, and all other bases of jurisdiction are
exceptions which must be able to advance a justification
under international law.
 Effects Jurisdiction

Those in favor:

It is lawful because in international law,

conduct is permitted, unless it is prohibited.

The Council of Europe Legal Affairs

Committee has taken a favorable view of
effects jurisdiction, on the basis of the
principle that: “Public international law
does not impose any limitations on the
freedom of states to establish forms of
extraterritorial criminal jurisdiction when
they are based on international solidarity
between states in the fight against crime.”

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Conflicts of Jurisdiction

National courts may

invoke different grounds of
jurisdiction, with the result
that several states may have
concurrent jurisdiction. In
this case, a general rule,
conviction or acquittal in a
foreign country is treated as
a bar to a subsequent
prosecution in another
country. However, not all
states observe this rule
against double jeopardy, and
international law has no rule
on this point.

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Conflicts of Jurisdiction
National courts may
invoke different grounds of
jurisdiction, with the result that
several states may have
concurrent jurisdiction. In this
case, a general rule, conviction
or acquittal in a foreign
country is treated as a bar to a
subsequent prosecution in
another country. However, not
all states observe this rule
against double jeopardy, and
international law has no rule on
this point.

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Extradition

There can be conflicts of jurisdiction, but there

can also be cooperation in civil, criminal, and
administrative matters. One instance of cooperation is
the process of extradition, by which one state hands
over a criminal suspect to another state, whose laws
are said to have been violated by the suspect.

In addition, extradition also includes the

surrender of convicted criminals.

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Extradition
In the absence of a treaty, there is
no duty to extradite. But also, in the
absence of a treaty, there is no duty to
refrain from extradition. Thus, in the
absence of a treaty, a state has the right to
grant asylum, or refuge, to a fugitive
criminal. The right of asylum is granted
to the state, not to the individual.
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Extradition

The issue of whether there is a duty to extradite in the absence

of an extradition treaty has been raised before the ICJ. After terrorist
bombing of an aircraft which crashed over Lockerbie, Scotland, the
UN Security Council took action against Libya, which it held
responsible for the terrorist act. Libya then brought a case against the
US and UK in the ICJ.

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