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Jurisdiction
https://www.youtube.com/watch?v=j4Qegb36SWE

o State jurisdiction is the capacity of a state under international law to prescribe and enforce the rules of
law. It is derived from the state sovereignty and constitutes its vital and central feature. It is the
authority of a state over persons, property and events which are primarily within its territories: Its
land, national airspace, and internal and territorial water.
o This authority involves the powers to prescribe the rules of law to enforce the prescribed rules of law
and to adjudicate the powers related to state jurisdiction.

Raised the question regarding the types and forms of state jurisdiction.
o state jurisdiction may extend beyond its territory over persons and things which have national ink.
o this extension raises the question regarding the grounds or the principles upon which the state can
assert its jurisdiction within and beyond its boundaries. Nevertheless, there are certain persons,
property, and events within the state territory which are immune from its jurisdiction this limitation to
a state jurisdiction raises a question regarding the immunity from jurisdiction.
o the answers to the above raised questions are dealt with in the following sections:
 section one types of state jurisdiction.
state jurisdiction implies the competence to prescribe rules of law. the jurisdiction to enforce
the prescribed rules of law and the jurisdiction to adjudicate accordingly.
it is of three types: legislative jurisdiction, executive jurisdiction, and judicial jurisdiction.
1. legislative jurisdiction: legislative jurisdiction is the capacity of a state to prescribe
rules of law. the power to legislate a state has the supremacy to make binding laws
within its territory. it is a legislative exclusivity in many areas. this supremacy is
entrusted to constitutionally recognized organs although legislation is primarily
enforceable within the state territory it may extend beyond its territory in certain
circumstances. international law for example accepts that a state may levy taxes
against persons not within its territory as long as there is a real link between the state
and the proposed taxpayer whether it is nationality or domicile. the question of how
far a court will enforce foreign legislation is a matter within the field of private
international law. conflict of laws it is common practice of states that a state enforces
civil laws of another state, but it is rare to enforce the penal law, taxes laws of another
state. the legislative supremacy of a state within its territory is well established in
international law. However, this supremacy may be challenged in cases where a state
adopts laws that are contrary to the rules of international law. In such cases a state
will be liable for a breach of international law. A state may also be liable for a breach
of international law if it abuses its rights to legislate for its nationals abroad.
2. executive jurisdiction: executive jurisdiction is the capacity of a state to act and to
enforce its laws within its territory. Generally, since states are independent of each
other and possess territorial sovereignty, they have no authority to carry out their
functions on foreign territory. No state has the authority to infringe the territorial
sovereignty of another state. In this sense a state cannot enforce its laws upon foreign
territory without the consent of the host state otherwise it will be liable for a breach
of international law.
3. judicial jurisdiction: judicial jurisdiction is the capacity of the courts of the state to
try legal cases. a state is an exclusive authority to create courts and assign their
jurisdiction and to lay down the procedures to be followed. however, in doing so it
cannot by any means alter the way in which foreign courts operate. there are a
number of principles upon which the courts of a state can claim jurisdiction in civil

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 matters. the principles range from the mere presence of the defendant in the territory
of a state to the nationality and domicile principles in the criminal matters they range
from the territorial principle to the universality principle these principles are the
subject of the following section .

Chintu principles of jurisdiction generally the exercise of civil jurisdiction by courts

of a state has been claimed upon far wider grounds than has been the case in criminal
matters. the consequent read action by other states with this regard has been much
mild. this is partly because public opinion is far more vigorous where a person is
tried in foreign territory for criminal offences than if a person is involved in a civil
case. in addition, international law does not impose any restrictions on the
jurisdiction of courts in civil matters and common law countries such as the United
States and United Kingdom the usual ground for jurisdiction in civil cases is the
service of the right upon the defendant within the country even if the presence of the
defendant is temporary and incidental. in civil law countries the usual ground for
jurisdiction is the habitual residence of the defendant in the country. in some
countries such as Netherlands, Denmark, and Sweden generally courts assert their
jurisdiction if the defendant possesses assets in the country. however, in matrimonial
cases the commonly accepted ground for jurisdiction is the domicile or residence of
the plaintiff. as far as criminal jurisdiction is concerned the grounds or principles of
jurisdiction mostly invoked by states are as follows:

 the territorial principle:

the territorial principle is derived from the concept of state sovereignty. it
means that a state has the primary jurisdiction over all events taking place in
its territory regardless of the nationality of the person responsible. it is the
dominant ground of jurisdiction in international law. all other states must
respect the supremacy of the state over its territory and consequently must
not interfere neither in its internal affairs nor in its territorial jurisdiction. the
territorial jurisdiction of state extends over its land, its national airspace, its
internal water, its territorial sea, its national aircrafts, and its national vessels.
it encompasses not only crimes committed on its territory but also crimes
have effects within its territory in such a case the concurrent jurisdiction
occurs a subjective territorial jurisdiction may be exercised by the state in
whose territory the crime was committed, and an objective territorial
jurisdiction may be exercised by the state in whose territory the crime had its
effect although jurisdiction is primarily and predominantly territorial it is not
exclusive. a state is free to confer upon other states the right to exercise
certain jurisdiction within its national territory. states are free to arrange the
right of each one to exercise certain jurisdiction within each national territory
the most significant recent examples of such arrangements are the 1991
France United Kingdom protocol concerning frontier control and policing
under which the frontier control laws and regulations of each state are
applicable and may be enforced by its officers in the control’s zones of the
other. the 1994 Israel Jordan peace treaty under which the Israeli criminal
laws are applicable to the Israeli nationals and the activities involving only
them in the specified areas under Jordan's sovereignty and measures can be
taken in the areas by Israel to enforce such laws.

 the nationality principle:

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 the nationality principle implies that a state jurisdiction extends to its
nationals and actions they take beyond its territory. it is based upon the
notion that the link between the state and its nationals is personal one
independent of location. criminal jurisdiction based on the nationality
principle is universally accepted while civil law countries make extensive use
of it. the common law countries use it with respect to Major Crimes such as
murder and treason the common law countries. however, do not challenge the
extensive use of this principle by other countries. a state may prosecute its
nationals for crimes committed anywhere in the world. the ground of this
jurisdiction is known as active nationality principle. also it may claim
jurisdiction for crimes committed by aliens against their nationals abroad the
ground of this jurisdiction is known as passive nationality principle this last
principle has been viewed as much weaker than the territorial or active
nationality principle as a basis for jurisdiction it has been considered as a
secondary basis for jurisdiction and a matter of considerable controversy
among states however in recent years this principle has come to be much
acceptable by the international community. in the sphere of terrorist and
other internationally condemned crimes

 three the protective principle:

protective principle implies that a state may exercise jurisdiction over an
alien who commits an act outside its territory which is deemed prejudicial to
its security and interests. it is universally accepted although there are
uncertainties as to its practical extent particularly as regard to the acts which
may come within its domain. it is justified on the basis of protection of states
vital interests particularly when the alien commits an offence prejudicial to
the state which is not punishable under the law of the country where he
resides and extradition is refused although the protective principle is used as
a secondary basis for jurisdiction and in an arrow sense than the territorial or
the nationality principle it can easily be abused particularly in order to
undermine the jurisdiction of other states in practice. however this principle
is applied in those cases where the acts of the person which take place abroad
constitute crimes against the sovereignty of the state such as plots to through
a government, treason, espionage, forging a currency, economic crimes, and
breaking immigration laws and regulations. this principle is often used in
treaties providing for multiple jurisdictional grounds with regard to specific
crimes such as the 1979 hostage convention and the 1970 Hague aircraft
hijacking convention.

 the universality principle:

the universality principle in its broad sense implies that a state can claim
jurisdiction over certain crimes committed by any person anywhere in the
world without any required connection to territory nationality or special state
interest. before the Second World War, such universal jurisdiction has been
considered as contrary to international law by the common law countries
except for acts regarded as crimes in all countries and crimes against the
international community as a whole such as piracy and slave trade. after the
Second World War, the universal jurisdiction has been universally recognized
over certain acts considered as international crimes.

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 International crimes are those crimes committed against the international
community as a whole or in violation of international law and punishable
under it such as war crimes, crimes against peace, and crimes against
humanity.

In recent years, crimes such as hijacking of aircraft, violation of human

rights, and terrorism have been added to the list of international crimes today
under the universality principle. Each state and every state has jurisdiction
over any of the international crimes committed by anyone anywhere.

 Section 3 immunity from jurisdiction

 The concept of jurisdiction is derived from the concept of sovereignty and is connected
with the principles of equality and non-interference in domestic affairs of other states.
 The grounds for jurisdiction are related to the duty of a state under international law to
respect the territorial integrity and political independence of other states. Immunity from
jurisdiction is grounded on this duty and constitutes derogation from the host state
jurisdiction under international law. Immunity from jurisdiction is granted to certain
persons namely states sovereigns and their diplomatic and consular representatives and
international organizations.

1 sovereign immunity

in international law sovereign immunity refers to the legal rules and symbols determining
the conditions under which a state may claim exemption from the jurisdiction of another
state. sovereign immunity is a creation of customary international law and derives from
the principles of independence and equality of sovereign states. since states are
independent and legally equal, no state may exercise jurisdiction over another state
without its consent. it is a limitation imposed by international law upon the sovereignty of
a state.

All the rules of sovereign immunity form part of customary international law. Today they
are incorporated either in international treaties such as the 1972 European Convention on
state immunity or in national statutes of certain states such as the 1976 US foreign
sovereign immunities act and the 1978 state immunities act.

Historically the head of a state, a sovereign, was associated with the state. Originally both
of them enjoyed under customary international law absolute immunity in all areas of their
activities from the jurisdiction of another state, while the head of the state continues
today to enjoy such absolute immunity even for his private activities. A state nowadays
enjoys only qualified restrictive immunity under the qualified immunity estate enjoys
immunity only in respect of its governmental acts not in respect of its commercial acts.
Acts during gestation ease in practice, sovereign immunity arises on 2 levels:
o The first level concerns the immunity of a state from the jurisdiction of courts of
another state. Courts of a state cannot adjudicate a claim against a foreign state.
o The second level concerns the immunity of a state from the execution of
enforcement measures undertaken by courts of another state.
Sovereign immunity covers the head of the state as well as the state itself, its
government, its departments, and its agencies. It embraces the acts of these
entities their property and assets. this community may however be voluntarily

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 waived by a state. a state may waive its immunity from jurisdiction and
consequently submits itself to the jurisdiction of a foreign court. However, such
submission waiver of jurisdictional immunity although gives the court of a state
the competence to adjudicate and enter judgment against a foreign state it does
not authorize the execution of the court’s decision against such state. in case of
execution another waiver is needed namely A waiver of immunity from execution
wave must be expressed however implied waiver is accepted if indicated by the
circumstances.

2 diplomatic immunity
o the rules of diplomatic immunity are the most accepted and uncontroversial rules of
international law. they are essential for the maintenance and efficient conduct of relations
between states.
o Prior to the 1961 Vienna Convention on diplomatic relations diplomatic law, especially
privileges and immunities, were based upon custom as well as contained in bilateral
treaties and national statutes. Nowadays most of the modern law of diplomatic immunity
is contained in the 1961 Vienna Convention on diplomatic relations which both codified
existing customary law and established others under this convention a diplomatic agent.
o the head of the mission and any member of the diplomatic staff of the mission enjoys
complete immunity from the criminal jurisdiction of the receiving state also he enjoys
immunity from its civil and administrative jurisdiction except in the case of reelection
relates to private movable properties situated within the receiving state. action related to
succession matters in which he is involved as a private person and action related to
professional or commercial activity in the receiving state outside his official functions no
measures of execution may be forced upon him except in the above-mentioned cases.
o To give evidence says a witness his person is inviolable he cannot be arrested or detained.
all appropriate steps should be taken by the receiving state to protect him and prevent any
attack on his person's freedom and dignity. he is exempt from all views and taxes except
in certain cases. the premises of the mission and the private residence of a diplomatic
agent as well as their archives documents papers official correspondence and other
property are inviolable a diplomatic agent enjoys immunity from the moment he enters
the territory of the receiving state on proceeding to take up his post tour if already in its
territory from the moment when his appointment is notified to the ministry for foreign
affairs he also enjoys such immunity when passes through or is in the territory of a third
state on proceeding to take up or to return to his post or when returning to his own
country. the immunity granted to a diplomatic agent is immunity from the jurisdiction of
the receiving state and not from a liability he is not immune from the jurisdiction of the
sending state.
o Moreover, he can be sued in the receiving state after a reasonable time elapses from the
ending of his mission. The immunity of a diplomatic agent from jurisdiction of the
receiving state may be waived by the sending state. the wave must be expressed.
However, such waiver of immunity from jurisdiction does not imply waiver of immunity
in respect of the execution of a judgment, in such case a separate waiver is required.
Immunity may also be waived by the diplomatic agent himself by submitting voluntarily
to the jurisdiction of the court of the receiving state. Members of the family have a
diplomatic agent if they are not nationals of the receiving state, likewise enjoyed the
same immunity from jurisdiction the same immunity with certain exceptions is enjoyed
by members of the administrative and technical staff of the mission, together with
members of their families, forming part of their respective households if they are not

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 nationals or permanent residents of the receiving state. Members of the service staff who
are not nationals or permanent residents of the receiving state enjoy immunity only in
respect of acts performed in the course of their official duties.

3 consular immunity:
o a consular officer like a diplomatic agent represents his state in the receiving state.
However, unlike A diplomatic agent he is not concerned with political relations between
the two states but with a variety of administrative functions such as issuing visas and
passports, looking after the commercial interests of his state, and assisting the nationals
of his state and distress, thus, he is not granted the same degree of immunity from
jurisdiction as a diplomatic agent. Notably nowadays many states combine its diplomatic
and consular services, thus a person who acts simultaneously as a diplomat and consul
enjoys diplomatic immunity.
o under the 1963 Vienna Convention on the consular relations, a consular officer, the head
of the consular post, and any person entrusted to exercise consular functions is immune
from an arrest or detention pending trial except in the case of a grave crime and
pursuant to a decision by the competent judicial authority. he is immune from
imprisonment or any other restriction on his personal freedom save in execution of a final
judicial decision if criminal proceedings are instituted against him. He must appear
before the competent authorities; the proceedings must be conducted in a manner that
respects his official position and does not hamper the exercise of consular functions and
with the minimum delay. A consular officer is immune from the jurisdiction of the
judicial or administrative authorities of the receiving state only in respect of acts
performed in the exercise of consular functions. He is exempt from all dues and taxes,
except in certain cases. In addition, the concealer premises archives and documents are
inviolable.
o A consular officer enjoys the immunities from the moment he enters the territory of the
receiving state on proceeding to take up his post tour. If already in its territory, from the
moment when he enters on his duties the same immunities are enjoyed by members of the
family of the consular officer from the date which he enjoys his immunities. The
immunities of a consular officer may be waived by the sending state, the wave must be
expressed. However, the waiver of immunity from jurisdiction for the purposes of civil
law, administrative proceedings, does not imply waiver of immunity from the execution
of a judicial decisions in such case a separate waiver is required immunity may also be
waived by the consular officer himself by submitting voluntarily to the jurisdiction of the
court of the receiving state.

4 immunities of international organizations.

o it is uncertain which immunities and to what extent international organizations enjoy
under customary international law. the position of this law is far from clear. Actually
immunities are granted to international organizations by treaties or by headquarters
agreements included with the host state where the organization is seated.
o The purpose of immunity granted to international organizations is purely functional
immunity is regarded as functionally necessary for the fulfillment of their objectives. It is
not a reflection of sovereignty as it is in case of a state except only indirectly when
aiming to protect the interests of the member states of the organization. probably the most
important example of treaties providing immunities to international organizations is the
1946 general conventions on the privileges and immunities of the United Nations which

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 sets out the immunities of the United Nations and its personnel. The United Nations
enjoys complete immunity from all legal process. Its premises, assets, archives, and
documents are inviolable.
o It is exempt from direct taxes and customs duties. its staff is exempt from income tax on
their salaries. UN secretary general and the assistant secretary’s general enjoyed
diplomatic immunity. other staff members enjoy limited immunities such as immunity
from a legal process in respect of their official acts. representatives of member states
attending the United Nations meetings are granted almost the same immunities as
diplomats except their immunity from legal process applies only to their official acts.
o An example of treaties providing immunities to representatives of states in international
organizations is the 1975 Vienna Convention on the representatives of states in their
relations with international organizations of a universal character. This treaty applies to
representatives of states in any international organizations of a universal character
irrespective of whether or not there are diplomatic relations between the sending state and
the host states

Notes on Jurisdiction
Actions of sovereign states are regulated by the concepts of jurisdiction and immunities basically what
states can and cannot do on certain events with certain subjects and objects and other types of situations
jurisdiction is the competence to make apply and enforce legal rules so remember our comparison with
domestic law well domestic law usually consists of the ecosystem of the three branches of the
government the legislative executive and judiciary branches so jurisdiction is the competence to apply
these three branches to certain subjects and objects like citizens territory and property.

there are two main types of jurisdictions: prescriptive jurisdiction and enforcement jurisdiction.

Enforcement jurisdiction
o is the right to take executive action to enforce the rules.

prescriptive jurisdiction
is the right to make rules which bind people.

enforcement jurisdiction simply relies on the basis of territoriality whereby a state me execute an act
legally if the subject object or property is in its territory simple as that though enforcement jurisdiction
can be extended through an extradition treaty a written agreement between two or more states that allows
enforcement jurisdiction on certain subjects and or objects within the territory of the other state party or
parties an example would be the multiple extradition treaties of the United states prescriptive jurisdiction
is much more complicated as it has multiple principles note that these are quote UN quote principles and
not hard set rules there are six principles for prescriptive jurisdiction the territorial principle the
nationality principle the protective principle the effects principle the passive personality principle and the
universal jurisdiction principle the territorial principle is the normal basis for jurisdiction and is quite
straightforward if an event occurs in the territory of a state then that state last jurisdiction over the
elements of that event the nationality principle recognizes that a state has jurisdiction over its nationals
inside and outside of its territory which means even if a national of that state commits a crime abroad the
criminal state of nationality has jurisdiction over that criminal this not only includes individuals but also
private entities like corporations like in the Barcelona traction case the protective principle recognizes
that the state has jurisdiction over instances where its national interest is injured by a certain act this
principle applies even though if the act that caused the injury was done outside its territory and by a non
national this is a highly controversial principle but it has nonetheless been cited to provide jurisdiction an

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example would be the eichmann in Jerusalem case whereby a Nazi official was tried in a court in Israel
clear war crimes he committed in Europe the effects principle recognizes that a state has jurisdiction over
acts outside its territory which have effects within its territory this is similar to the controversial protective
principle though their areas of application may differ the passive personality principle recognizes that a
state ask jurisdiction over an act and the person committing that act which occurred abroad that resulted
to the injury or death or will result to injury or death of one of its nationals previously this is a highly
controversial principle as it is quite vague though this has gained traction with the concern over terrorist
threats and attacks which target certain nationalities so for example state a will have jurisdiction over a
terrorist which targeted and killed the nationals of state a while they were in state B's territory finally
states have universal jurisdiction over certain acts and offenses this means all states the jurisdiction and
may exercise custody over the offenders with no other connection like nationality the offenses which
trigger universal jurisdiction include piracy crimes against humanity and perhaps grave war crimes there
are other special jurisdictional regimes which have been elaborated on by certain treaty regimes like the
law of the sea convention which talks about flag state jurisdiction in the high seas and the outer space
treaty which bases jurisdiction on nationality again these are principles not hard set rules meaning it is up
to the court and judges to deliberate and decide accordingly as states may have multiple ways of gaining
distinction and in international law jurisdiction is often overlapping which is why some cases take so long
to proceed so to secure jurisdiction and consent of sovereign states similar to the principles of jurisdiction
there are modes concepts of immunity a failure to accord a right of immunity is a breach of international
law this is because again of the concepts of sovereignty and sovereign equality there is no power above
the sovereign state and thus in absolute theory there should be no restrictions and punishment towards
sovereigns hence the concept of immunity the principal concept for immunity is sovereign immunity
quite possibly the oldest rule of customary international law it is an absolute right of these sovereign state
to immunity from the jurisdiction of other states in effect it is an exception to territorial jurisdiction
nevertheless there are limitations as states for example engage in private commercial transactions and
thus consensually lose some of its absolute immunity to guarantee its financial obligations acts of this
nature are called anti registries or acts by right of management or acts of a commercial nature as opposed
to after you were imperial or acts by right of dominion or acts of a governmental nature sovereign
immunity only applies to the state itself and the individuals who represent the state like the head of state
and foreign ministers functional immunities are immunities granted to representatives of states and
international organizations to allow them to carry out their duties and responsibilities to keep it simple
and act by the representative for it to be under functional immunity must be an official act not a private
act the extent of functional immunities depends on the function of the individual or entity in the
international arena furthermore there are two concepts under functional immunities immunity rationale
persona and the immunity rationale material immunity rational persona is the immunity of an individual
for the period that that individual holds the relevant status under international law that's the individual
loses her immunity once she loses her relevant status under international law immunity rational material
is immunity granted for all time for official acts thus the individual enjoying this immunity is immune
forever from jurisdiction and other actions for her official actions heads of state as the principal Incarnate
representation of the state enjoy absolute immunity a form of rational persona while in office she is the
sovereign Incarnate or she is the state and thus her immunity is absolute though this immunity is usually
regulated by custom like diplomatic protocols and treaties like the Rome Statute of the ICC whereby an
incumbent head of state may be tried and convicted for international crimes once an individual ceases to
be a head of state she holds rationale material losing absolute immunity low retaining immunity for
official facts during her time as head of state furthermore former heads of state may be liable to the
jurisdiction of foreign courts and law enforcement institutions if it is found that the act in question is not
an official conduct of a head of state like international crimes and torture foreign ministers as the direct
representative of the state after the head of state enjoy the same immunities as the heads of state with
regards to ambassadors and consuls there is the Vienna Convention on diplomatic relations and the
Vienna Convention on consular relations in spirit the immunities enjoyed by ambassadors and consuls
along with their staff and property Big Ben on their functions for example consoles have less immunities

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than ambassadors as councils primarily handle commercial and administrative duties while ambassadors
handle judies beyond these two you will learn more about diplomatic protocols and immunities soon in
your diplomacy class and that's about it thank you for the semester and hope to see you around bye bye

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