LAW 221: INTERNATIONAL LAW Dr. Başak Çalı

Outline Jurisdiction Part 2 Categorisations of jurisdicition Jurisdictional conflicts Outline

Over what do states exercise jurisdiction? Jurisdiction over territory (legislative, executive, judicial) Jurisdiction over persons (legislative, executive, judicial) Jurisdiction over outcomes (legislative, executive, judicial) Over what do states exercise jurisdiction?

Jurisdiction types under criminal law/tort law Territorial jurisdicition Nationality jurisdicition/passive personality jurisdiction Passive personality jurisdicition (e.g. Protection of nationals abroad) Protective jurisdicition (e.g. Convention on Nuclear Terrorism) Universal jurisdicition (e.g. piracy, crimes of genocide, torture, eg. US Alien Tort Claims Act) Jurisdiction types under criminal law/tort law

Jurisdiction types under Public law and IHRL Territorial jurisdicition Jurisdicition for persons under a state’s control Jurisdicition for terrritory under a state’s effective control Jurisdicition for outcomes under a state’s control Jurisdiction types under Public law and IHRL

Territorial jurisdiction UN Charter Article 2/7 ‘essentially within the jurisdiction of any state’ Vienna Convention (territorial application clause, Article 29 ) The most important mark of sovereignty The boundaries in deciding the limits of public power (Nationality Decress in Tunis and Morocco, PCIJ 1928) The primary way in which a state exercises jurisdicition Territorial jurisdiction

Where do states exercise jurisdiction? Jurisdiction over territory –but, it is more than territory. jurisdiction over territory extends to acts and rights of non-nationals, prescriptions with outcomes elsewhere, and events initiated abroad. Where do states exercise jurisdiction?

“Now the first and foremost restriction imposed by international law upon a State is that …it may not exercise its power in any form in the territory of another State. ….except by virtue of a permissive rule.” (para. 45) – enforcement/coercive act. “It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad….it leaves them in this respect a wide measure of discretion, which is only limited in certain cases by prohibitive rules ..” (para.46) – prescription/legislative Two Lotus principles

Territorial jurisdiction IHRL Criminal law Responsible for rights of everyone residing in the territory Able to prosecute and punish anyone within its territory Public law Right to assert authority applicable within territory Tort law/civil law Right to regulate private legal relationships within territory Territorial jurisdiction

Criminal jurisdicition : The Lockerbie affair 1988 – ICJ case 1991 PAN AM FLIGHT 103 have been loaded in by non-nationals Malta –within its jurisdiction (subjective territorial jurisdiction) PAN AM FLIGHT exploded over Scotland in Lockerbie – within UK jurisdiction. (objective territorial jurisdiction) Criminal jurisdicition : The Lockerbie affair 1988 – ICJ case 1991

IHRL Jurisdiction example MMS v. Belgium and Greece 2011 ECtHR Detention conditions of asylum seekers are under the jurisdiction of states IHRL Jurisdiction example MMS v. Belgium and Greece 2011 ECtHR

What happens when more than one state asserts territorial jurisdiction over a crime/delict or when a state asserts territorial jurisdiction and another state asserts jurisdiction on other grounds? What happens when noone claims jurisdicition over a territory? What happens when more than one state asserts jurisdiction over the same territory? What happens when one’s claim to territorial jurisdiction harms the interests or jurisdictional claims of another state? IL Questions

Multiple jurisdiction claims Territorial jurisdiction is a strong claim, especially when it concurs with jurisdiction over the nationality of the person. Territorial jurisdiction claims can be contested by domestic legislation that concern special interests of the state, i.e. terrorist acts. Territorial jurisdiction claims can be trumped by concerns regarding international crimes or outcomes of concern to the international humanity as a whole, i.e. piracy, crime of genocide Territorial jurisdiction can be trumped by the right to self-defense (more on this next term) Multiple jurisdiction claims