6.1. Prescriptive and Enforcement Jurisdiction: Territorial and Extraterritorial Application

© Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction to the original content.

Jurisdiction: Overview

Jurisdiction is the government’s general power to exercise authority over all persons and entities within its territory. Jurisdiction is closely related to, and stems from, the principle of state sovereignty and sovereign equality and independence of states from non-interference in its internal affairs.

Jurisdiction covers

(1) the state legislature’s right to create, amend or repeal legislation: we called this prescriptive jurisdiction (legislative powers),

(2) the state’s right to enforce this legislation through, for example, the police and public prosecutors, by investigating a crime and arresting a suspect: we called this enforcement jurisdiction (executive powers), and

(3) the ability of national courts, tribunals and other bodies or persons exercising judicial functions to hear and decide on matters: adjudicative jurisdiction.

Types of Jurisdiction

 

Prescriptive and Enforcement Jurisdiction: Territorial and Extraterritorial Application

A State has unlimited prescriptive jurisdiction: this means that the legislature can create, amend or repeal legislation covering any subject or any person, irrespective of the person’s nationality or location. The ICJ stated that “In these circumstances all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty (para 47 of the Lotus case).”

At the same time, international law does not allow a state to enforce its legislation outside its territory without an international agreement or a rule of customary international law permitting the state to do so.

For example, state A’s law says: adultery is an offence that is punishable by death. This law is enforceable in the territory of state A; but, state A cannot enforce that law in state B even against a citizen of state A. This means, for example, that state A cannot investigate the crime or arrest the accused in state B’s territory without state B’s consent.

Territorial and extra-territorial jurisdiction

The 2 Principles of the Lotus Case

1. This brings us to the first principle in the Lotus case – A State cannot exercise its power in any form in the territory of another State; unless, unless  an international treaty or customary law permits it to do so. An example of the first Lotus principle is found in the UK-Netherlands Agreement of 1991. Through this international agreement, the UK obtained the consent of Netherlands before prosecuting two Libyans accused in the Lockerbie bombing – by a Scottish Court – located in Netherlands.

“Now the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.” (para 45 of the Lotus case)

2.  The second principle of the Lotus case: within its territory, a State may exercise its jurisdiction, on any matter, even if there is no specific rule of international law permitting it to do so. In these instances, States have a wide measure of discretion, which is only limited by the prohibitive rules of international law. The state can exercise its jurisdiction based on the nationality of the victim or perpetrator (see principles passive personality and nationality), where the state’s security interests are affected by acts committed abroad (see protective principle) or where individuals have commit certain serious crimes (see universal jurisdiction).

“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, and in which it cannot rely on some permissive rule of international law… Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion, which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable…” (paras 46 and 47 of the Lotus case)

The ICJ, in this case, finds that an act or omission which is not prohibited under international law is permitted. In other words, a state can (or is permitted to) exercise jurisdiction  within its territory over acts that occur outside its territory as long as there is no rule in international law that expressly prohibits the State to do so. Bruno Simma criticises this dictum in his separate opinion in the Kosovo Advisory Opinion. 

 

© Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction to the original content.