1. Jurisdiction in International Law

2. TYPES OF JURISDICTION We can take three sub-titles:
Territorial Jurisdiction (ülkesel yetki)
Extra-territorial Jurisdiction (ülke dışı yetkisi)
Domestic Jurisdiction (Ulusal)

3. Territorial Jurisdiction- 1- States Normally have Exclusive and Full Jurisdiction Over Their Territory
Unless it is otherwise provided by international agreements or by customary rules of international law a state would be the single and superior authority within her territory.
Unless it is otherwise provided a state cannot use territorial jurisdiction over another states’ territory.
There were some exceptions in history-----some states had established foreign courts in China + remember capitulations in Turkey (their provisions on creation of foreign and mixed courts).

4. Territorial Jurisdiction
Territorial jurisdiction contains executive + legislative + judicial acts.-----legislative jurisdiction + executive jurisdiction + judicial jurisdiction.
Main subject of territorial jurisdiction covers:
Everything within her territory (movable and immovable/real property).
Everybody living within this territory (citizens + aliens).

5. 2- Position of or Treatment of Aliens--foreigners
State is the only authority to decide:
entering + departures + visa conditions
asylum + refugees + asylum seekers cases to a territory + to a diplomatic residence + to a consulate building + to warships + to states aircrafts
Conditions required to stay within a country Normally foreigners are considered within the scope of national legal settings. They have to obey laws and regulations in force But there is an exception----in some cases---aliens can be considered under the jurisdiction of their mother-states’ laws concerning their personal status such as marital status + divorce + adoption.

6. 2- Position of or Treatment of Aliens--foreigners
Another Treatment of Aliens is “Expulsion”(sınırdışı etme): Normally decision to execute expulsion is within states jurisdiction. + again, unless it is provided otherwise by an international agreement----“extradition” (suçluların iadesi) of alien guilty is also under a state’s jurisdiction.

7. 2- Position of or Treatment of Aliens--foreigners
All movable and immovable properties belonging to aliens are under the jurisdiction of national laws.
But a state should refrain from using her laws in a manner causing damage to these properties.
Most important issue regarding foreign property is “nationalization”.
In principle----it is widely accepted that every state has this power----mostly because of the principle of permanent sovereignty over natural resources.
It is widely accepted by international lawyers that:
it should aim at public interest
it should refrain from any kind of discrimination
There has to be a prior notification
There has to be a proper compensation
These conditions have also been approved by ECHR and other regional courts.
But for some writers from developing countries----nationalization is a sovereign act and it does not require some “reasons” or “remedies”.

8. Limitations (Restrictions) on Territorial Jurisdiction
A State is under the duty to refrain from interfering in domestic affairs of another state
This principle is set out in Art. 2/7 of the UN Charter: “Nothing contained in the present charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any state…”
For example holding elections in a country is in principle a domestic issue----conditions to be a candidate or giving a person “citizenship” status.
Since 1945 meaning of “domestic jurisdiction” has been narrowed + restricted.

9. Limitations (Restrictions) on Territorial Jurisdiction
A State should refrain from damaging (harming) foreign states and their citizens.
A state should not give permission for her territory to be abused (or used) for activities violating rights of other states.
This was approved by the Corfu channel Case (1949-ICJ)
Damaging acts and negligence (ihmal) is also prohibited.
A state should not give permission for her territory to be used for an armed attack against another state-----Because of respect for territorial integrity and the principle of non-intervention.----Exp: Nicaragua + E Salvador + USA.

10. Limitations (Restrictions) on Territorial Jurisdiction
For the 1974 Definition of Aggression such activities are regarded as aggression:
Foreign military forces----attacks another state
Armed groups and terrorist groups----to another state territory.
Another point concerning disabilities and negligence is------A state should previously notify damaging dangers (risks) to another state in her territory.
During Corfu Case-----ICJ said Albania is responsible for the damage, because she didn’t notify the UK’s ships about sea mines within her territorial waters. No recognition of Albania + most important case regarding self-defence + demonstration of force + preventive self-defence concept.
Another important limitation is related with environmental protection / pollution problems First time in during the Trail-Smelter Arbitration Case between Canada and USA----it was stressed that “a state cannot use her territory in a way that pollutes another state’s territory.

11. Limitations (Restrictions) on Territorial Jurisdiction
c- Respect for Legal Acts (Official Acts of other states) Concerning Territorial Jurisdiction:
There is a difficult question: should the court of state A recognize and enforce the legislative acts of state B---this is a question to be resolved by the rules of Private International Law.
Again we may face with “judicial jurisdiction”------a foreign individual before a municipal court may argue that---“the court has no jurisdiction”

12. Respect for Legal Acts (Official Acts of other states) Concerning Territorial Jurisdiction
If we take the recognition and enforcement of foreign judicial judgments----a distinction between “civil” and “criminal cases” must be made.
Civil cases has less problems-----in Western Europe there are detailed rules on civil jurisdiction set out in a number of international conventions.---we can say that “the rules on the conflict of laws in respect of civil jurisdiction have been harmonized”.

13. the relevant principles of public international law regarding states’ jurisdiction?
1- A state is sovereign within its own territory---therefore has the right to prosecute in respect of acts and omissions arising within its territory---This is called “territorial principle” or territorial jurisdicition
Why? First of all----Primary duty of any government is to maintain law and order in its territory.
Secondly-----Most probably the oral witness and physical evidence -----this is the practical reason asserting jurisdiction Scotland demand----Lockerbie Case (1988).
Normally---when a criminal act begins and is completed in a single territory-----“territorial principle” works as tradition---there is no problem there.

14. the relevant principles of public international law regarding states’ jurisdiction?
But sometimes----an agreement on a robbery plan may be made in state A + preparatory acts undertaken in state B + and crime completed in state C
To avoid cases like this and to make things more clear----the “the territorial principle” was modified by some states into two versions:
Subjective territorial principle: A state would have jurisdiction to prosecute a crime initiated (started) in its own territory----but completed abroad.
Objective territorial principle: State A would have jurisdiction to try (judge-put on trial-hear) criminal offences where the acts were initiated in the territory of another state----but had either been completed in state A or produced harmful consequences in state A

15. Lotus Case-1927
The famous case that the “territorial principle” has been discussed is “Lotus” Case.----But please note that the reasoning behind the decision has became irrelevant (redundant) by subsequent events.
Lotus Case--1927: A French ship named Lotus involved in a collusion on the High Seas with a Turkish ship (Bozkurt)---Bozkurt sank and 8 Turkish nationals died----when the French ship arrived Istanbul---the Captain and the officer of watch were arrested and put on trial by the Turkish courts for killing Turkish nationals---Turkish Court rejected “no jurisdiction” objection----than France and Turkey decided to bring the case before the International Court of Justice.

16. Lotus Case
Majority of the Court decided:
Rejected the contention of France that there was a rule of customary international law that the “flag state” had exclusive jurisdiction over the conduct of individuals on a vessel on high sea.
Accepted the argument by Turkey that the Turkish Vessel could be regarded as an extension of Turkish territory and thus jurisdiction could be assumed under the objective territorial principle.
Asserted that a state is entitled to exercise jurisdiction within its own territory---unless and until it could be shown prohibited under international law.

17. Lotus Case
The value of this judgment has diminished by subsequent state-practice since than French approach as to jurisdiction is now accepted as part of international law----Because Article 11/1 of the Geneva Convention on the High Seas (1958) reads: “in the event of collusion or of any other incident of navigation concerning a ship on the high seas…….-----no penal or disciplinary proceedings may be instituted against master of the ship or any other person in the service of ship----except before the judicial or administrative authorities either of the flag state or of the state of which such person is a national”-----This provision is repeated in the UNCLOS-1982
Acts other than collusion...

18. Nationality
2- Nationality- A state is sovereign within its own territory---thought has the right to determine its rules of citizenship and traditionally international law accepts that a state may exercise jurisdiction over its nationals for crimes committed abroad-----this is called “active nationality principle”
International law does not regulate the granting of nationality by a state and this matter is regarded as a subject within “domestic jurisdiction”.-----it’s a kind of reserved domainBut!

19. Nationality
In general---nationality depends on some form of link between person and state-----This may be on the basis of “descent” from parents who are nationals (called as jus sanguinis) or on the basis of “place of birth” (called as jus soli).
What does international law concern and regulate regarding “nationality”?
An important point is statelessness: Art. 24/3 of the International Covenant on Civil and Political Rights (1966) provides “each child should have the right to acquire nationality” + Universal Declaration on Human Rights Art. 15/2 provides “nobody should be arbitrarily deprived of his/her nationality”
Regarding the obtaining of nationality effect of marriage may differ state to state----some states provides automatic acquisition of the husband’s nationality upon marriage------some other states provide that marriage has no effect on nationality.

20. Nationality
Ships and aircrafts have “nationality” as well-----a ship shall have the nationality of the flag which it is entitled to fly----but flag state determines conditions for registration + granting of nationality Under the Chicago Convention on Civil Aviation (1944)----aircrafts shall have the nationality of the state in which it is registered again conditions for registration is a matter of domestic law of each state.

21. Protective principle
3- The Protective Principle----A state may prosecute an alien for acts committed abroad that are directed against the existence, peace and order of that state----these are deemed as crimes against state------this concept is also used in Turkish legal literature
Normally this principle is related with the “vital interests of states” and it has been existed because of insufficient municipal laws of other states
Crimes against peace + integrity and security of a state or “crimes of treason” committed outside the territory of a state are sometimes deemed within the jurisdiction of that state.

22. Passive personality principle
4- The Passive Personality Principle-----
Means----sometimes states claim jurisdiction to put an individual on a trial for offences committed abroad which have affected or will affect nationals of that state.
Sometimes states deems only specific kind of persons or some times all kinds of their citizens.

23. Universal jurisdiction
5- The Universality Principle-----
In international law there are specific offences that provide every state jurisdiction and give them the right to prosecute or try that offence.
These crimes or offences are regarded as “offences committed against international community as a whole”
There are two category of offence obviously belong to the sphere of “universal jurisdiction”:

24. Universal jurisdiction
Piracy
This is a very old “crime” and universal jurisdiction over piracy is a long-established principle.
All states can arrest and punish “pirates” in High Seas or within their territorial waters, regardless of the “nationality” of the offenders.
Under the rules of High Seas Convention and 1982 UNCLOS Convention----piracy is defined as “illegal act of violence, detention or destruction committed for private purposes by the crew or passengers of private ship or private aircraft-----and directed against another ship or aircraft or persons or property therein on the High Seas or terra nullius.

25. Universal jurisdiction
War Crimes + Crimes Against Peace + Crimes Against Humanity
First time in history-----issue of war crimes regulated in 1919 in the Treaty of Versailles and it was provided that the overthrown German Emperor Wilhelm II and other war criminals would have tried by a special international court.-----Nevertheless----Netherlands refused to give Wilhelm back who was a refuge in this country at that time---therefore these articles of the Treaty had not been applied.
Trial of war criminals and their punishment achieved first time in with the failure of Germany----this state concluded an agreement of surrender with USA + France + Soviet Union + UK.----They implemented these rules by the London Agreement in 1945 which includes the Charter of International Military Tribunal (known as Nurenberg Court).

26. Universal jurisdiction
If we take the interpretation of the Court in Nurenberg:
“Crimes Against Peace”: includes execution of acts of aggression or wars contrary to international agreements by state authorities-----But today it is not clear whether this category includes support for international terrorism.
“War Crimes”: includes violations against the rules of war during war time----includes killing of civilians + ill-treatment of civilians + forcing civilians to work + looting their property + killing or ill-treatment of prisoners of war + unnecessary destruction of buildings in a city.
“Crimes Against Humanity”: Whether before the war or during the war: genocide + using civilians as slaves + imposing mass departure (exodus) + torture + willful killing + rape + other atrocities based on political, ethnic or religious grounds They are inhuman acts of a very serious nature.

27. Universal jurisdiction
Nurenberg Court proceeded until the end of 1946 and tried 24 Person and some Nazi institution and punished them.
With the UN General Assembly resolutions-----Nurenberg Rules became “customary rules of international law”.
In 1993 and UN Security Council established two international criminal court for Rwanda and Former Yugoslavia.
In Rome Statute for International Criminal Court have entered into force despite the resistance of the USA-----under its provisions this court would have jurisdiction to try “most serious crimes of concern to the international community as a whole”.
OthersSlavery + torture

28. Exceptions on Territorial Jurisdiction
There are two different groups:
1- First Group: State refrain from using her territorial jurisdiction
Diplomatic immunities of states + int. org. and their officials.
Right of passage
Demilitarization
Neutralization
2- Second Group: State transfers her power to another state or states----sometimes permanently----sometimes temporarily
Capitulations
Transfer of the right to administer
Protectorate
Territorial jurisdiction over military bases
Implementation of Territorial Jurisdiction over another country under occupation-----like Iraq occupation.

29. EXTRA-TERRITORIAL JURISDICTION
Normally----this means the extension of a state’s territorial jurisdiction out of its territory. This extension may occur;
Within international Zones
Within Other States Territory

30. EXTRA-TERRITORIAL JURISDICTION
a- Within international territories
1- Contiguous Zones
It starts from the end of territorial waters
Gives some powers about health + security + money
It is accepted by international agreements that these areas are international high sea areas.

31. EXTRA-TERRITORIAL JURISDICTION
b-Fishery Zones
It can reach around 12 miles, but over (after) territorial waters.
Gives the right to costal state on fishes
If a state’s territorial waters are less than 12 miles----fishery zone may extend up to 12 miles after territorial waters over international waters.

32. EXTRA-TERRITORIAL JURISDICTION
3-Continental Shelf
This area starts from the boundary of territorial waters
This jurisdiction does not include water area but only covers seabed and ground and permanent subjects on ground.
4- Exclusive Economic Zones
Starts from the coast---may extend to 200 miles but it is valid after territorial waters----it covers water + seabed + ground
It gives some economic rights only to coastal state

33. EXTRA-TERRITORIAL JURISDICTION
5-High Seas
In some cases as to some international crimes and collusion----a state may use territorial jurisdiction within high seas.-----For example----“Right of Hot Pursuit” within high seas-----accepted as a customary rule of international law.
6-On non-state’s land-territory
This is an international zone and every state can use territorial jurisdiction over this area.
In history there were “terra nullius”----but there aren’t any more.
There is an agreement concluded in 1959 for Antarctica---regulates activities of all states over this area and limits them----they can use for scientific purposes only.

34. EXTRA-TERRITORIAL JURISDICTION
b- Within other states territory
In history----Colonial States exercised extra-territorial jurisdiction over colonies + condominium + Mandat + non-self-governing territories
Again by way of capitulations-----extra-territorial jurisdiction occurs.
Or sometimes by way of “cession of administration” this is a kind of “rent act”-----lease.

35. EXTRA-TERRITORIAL JURISDICTION
Within other states territory:
In 1878 Cyprus Treaties----provided the authority to administer the Cyprus Island-----but ownership retained by Ottoman Empire.-----British Empire exercised extra-territorial jurisdiction over the Island.-----Ottomans transferred the administrative jurisdiction but sovereignty remained.
For Exmp: Soviet Union rented (concluded a leasing agreement) on Parkkala Region of Finland for 50 years by the 1947 Paris Peace Treaty---But this status was terminated in 1955.
For exp: By the 1903 Varilla Agreement----the US gained the right to administer the Panama Channel Area.
For exp: By the 1898 Beijing Agreement----the UK acquired the right to administer the Hong-Kong for 99 years----With the 1984 Agreement---this status was terminated in 1997.

36. two important and sui generis cases of exercising extra- territorial jurisdiction over other states territory
USA and EU legislation and related problems
We have seen the cases that a state may claim its jurisdiction out of her territory on the basis of “protective principle”----over acts committed by an alien abroad which are deemed prejudicial to the security of state.
This kind of claim is essentially-----based on the presumption that the conduct of some persons produces “effects” on her territory.
Therefore these kinds of claims of jurisdiction form extra-territorial jurisdiction.

37. USA and EU legislation and related problems
In the last decade---US has sought to bring trade pressure through sanctions against regimes on the ground that they have violated international law.
Helms Burton Legislation” in In essence----this legislation provided for the imposition of penalties on individuals or companies investing in Cuba regardless of their nationality
Moreover----It provided for legal proceedings in the US courts against foreign persons and companies deemed to be “trafficking” in property expropriated by Cuba from American nationals.
It also provided for the US to deny entry into the country of those executives whose companies were considered to be engaged in such “trafficking”.

38. USA and EU legislation and related problems
Again in US Congress enacted the Iran-Libyan Sanctions Act----known as “D’Amato Act”-----which imposed sanctions on individuals or companies investing in these two countries regardless of their nationality.
EU + UK + Organization of American States protested or criticized these legislation-----But the reason behind for EU was competition and economic nevertheless-----USA and EU agreed to suspend for a period some part of these legislation-----But US did not abrogate them.

39. 2-Turkey’s position in TRNC
ECtHR
Effective control
Domestic remedy

40. Domestic Jurisdiction
This concept refers matters which is only within the exclusive jurisdiction of a single state------In principle-----these areas are without the jurisdiction of other states and international organizations and rules of international law does not regulate these subjects.
First of all-----we can enumerate 1- The right of a state to grant her citizenship + 2- shaping the constitutional order of a state .
But-----subjects within or without domestic jurisdiction are relative----because it is subject to the evaluation of international relations-----in some periods some acts are considered within the domestic jurisdiction but now----rules of international law regulate these areas.

41. Domestic Jurisdiction
This principle is set out in Art. 2/7 of the UN Charter: “Nothing contained in the present charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any state…”
Under the UN Charter---three principles can be inferred:
Limitation to the domestic jurisdiction is defined with the word “essentially” Therefore some dimensions of a topic can be regulated by law but if it is essentially within domestic jurisdiction----this will be enough for the UN Charter.
There is no specific criterion for domestic jurisdiction and no organ of the UN has been entitled to determine what is domestic and what is not.
Even if a subject is essentially within the domestic jurisdiction of a state------In case of a matter under Chapter VII of the UN Charter which requires Enforcement Action----an exception occurs and UN organs become authorized. Like----conducting elections in a state following a UN operation to that state’s territory.