JURISDICTION Arie Afriansyah

Definition The extent to which international law permits a state to exercise its jurisdiction over persons or things in its territory and sometimes abroad. (Anthony Aust) Domestic jurisdiction takes two main forms: – Prescription (the making of law) – Enforcement (implementation of the law by the judiciary and executive)

Conflicts of jurisdiction in civil matters are generally resolved by applying conflict of laws rules. Disputes over jurisdiction occur more often in the enforcement of laws of a regulatory nature. … a general principle has now emerged that a state may exercise jurisdiction if there is a sufficiently close connection between the subject matter and the state to override the interests of a competing state.

Principles of Jurisdiction Territorial principle Nationality principle Passive personality principle Protective principle Universal and quasi-universal jurisdiction

Territorial principle 1 A state is free to legislate and enforce that legislation within its territory, the main exception being when that freedom is restricted by treaty. A state can also apply its laws to ships flying its flag or aircraft registered with it and persons on board. Although a state has sovereignty over its airspace, acts committed on board foreign-registered aircraft are primarily subject to the jurisdiction of the state of registration.

Territorial principle 2 Officials of a foreign state cannot take evidence or exercise other jurisdiction without the consent of the territorial state. The immunity of foreign diplomats and states from the jurisdiction of domestic courts does not mean that there is no territorial jurisdiction over them, just that it cannot be exercised unless immunity is waived.

Nationality principle A state can legislate to regulate activities of its nationals abroad, whether living there or merely visiting. To varying degrees, states have legislation that provides that their nationals who commit offences abroad may be prosecuted at home, and for this purpose extradition may be available.

Passive personality principle A state might claim jurisdiction over acts committed abroad against its own nationals by foreign nationals (victim jurisdiction). The jurisdiction of a legislation seems to have been used only to deal with terrorist offences and the principle is now found in various counter-terrorism conventions.

Protective principle In certain circumstances, a state may establish its jurisdiction over a foreign national who commits an offence abroad prejudicial to the state’s security, even if the act is not an offence under the local law. The scope of this principle is not well defined, but is most clearly seen in some of the treaties that provide fo quasi universal jurisdiction.

Universal jurisdiction It is exceptional for states to have jurisdiction under their law over crimes committed abroad by foreign nationals against foreign nationals. Certain crimes – piracy, slavery, torture, war crimes, genocide and other crimes against humanity – are so prejudicial to the interests of all states, customary international law, does not prohibit a state from exercising jurisdiction over them, wherever they take place and whatever the nationality of the alleged offender or victim.

quasi-universal jurisdiction The principle has in recent years been embodied in universal treaties dealing with terrorism, drug trafficking. Since in such cases the principle binds only the treaty parties, it is known as quasi-universal jurisdiction.

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