International Law - Jurisdictional Sovereignty
–‘The first and foremost restriction placed by international law upon a State is that…it may not exercise its powers in any form in the territory of another State.’ (Lotus)
Aut dedere aut punire - This relates to universal jurisdiction, where States are expected to arrest international criminals who commit grave breaches of international law; this principle means that States are expected to either extradite or punish the criminal.
Acts jure imperii - governmental acts.
Acts jure gestionis - commercial acts of governments.
Bases of Jurisdiction
•Activity personality (nationality of perpetrator)
•Passive personality (nationality of victim)
•The Effects Doctrine
Active Personality (Nationality of Perpetrator)
Active personality is generally not exercised, with the exception of rare cases (e.g. sex tourism, murder, ICC crimes)
There are sometimes issues about who may be considered a national in international law. (Nottebohm ICJ 1955)
Passive Personality (Nationality of Victim)
This is even more limited that the active personality. It is only used for serious crimes, and even at that is rarely accepted.
The Lotus dissenting opinion: ‘in substance it means that the citizen of one county, when he visits another country, takes with him for his “protection” the law of his own country and subjects those with whom he comes into contact the operation of that law. In this way, an inhabitant of a great commercial city, in which foreigners congregate, may in the course of an hour unconsciously fall under the operation of a number of foreign criminal codes.’
States have jurisdiction over crimes committed outside their territory by aliens when their security, territorial integrity or political independence is threatened. As long as the act which constituted the crime was not committed in exercise of a liberty guaranteed to the alien by the law of the place where it was committed.
‘This crime very deeply concerns the “vital interests” of the State of Israel, and under the “protective principle” this State has the right to punish the criminals; the acts concern Israel more than any other state. (Eichmann)
Universal jurisdiction is jurisdiction without a link based on where the alleged crime was committed, the nationality of the suspect/victim or the protection of the State.
Certain offences are recognised by the community of nations as being of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, etc. (3rd Reinstatement of Foreign Relations Law of the US, 1987.
Grave breaches of international law puts every high contacting party under the obligation to search for persons who have committed the grave breaches, and to bring such persons, regardless of nationality, before the national courts, and aut dedere aut punier. (This means either extradite or punish.)
Eichmann: Crimes ‘which struck at the whole of mankind and shocked the conscience of nations [and] are grave offences against the law of nations itself.’
Prosecution nationally for WWII crimes in the late 1980s; here there is generally a presence requirement.
The concept of state immunity refers to the rules and principles determining the conditions under which a foreign state may claim freedom from the jurisdiction of another state.
Since states are independent and legally equal, no state may exercise jurisdiction over another without its consent; in particular, the court of one state may not assume jurisdiction over another state.
The issues arise on two different levels:
1) immunity in contract or tort; and 2) immunity from enforcement measures.
Absolute v. Qualified Immunity
Originally under customary international law only very narrow exceptions.
Under the old absolute immunity rule (which still exists in some states), nationalised industries create borderline cases.
The trend currently is to adopt a doctrine of qualified or restrictive immunity—that is to grant immunity to foreign states only in respect of their governmental acts (acts jure imperii) but not in respect of their commercial acts (acts jure gestionis).
Lotus (France v. Turkey) PCIJ 1927
Territory includes the country where a ship is registered.
The Basic Rule - A state may not “exercise its power in any form in the territory of another state without consent."
But, it does not 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.”
It is best to think of the Basic Rule, not as a prohibition with exceptions, but as a permission with limitations.
Arrest Warrant of 11 April 2000 (DRC v. Belgium)
A Belgian judge filed an international arrest warrant against the Minister of Foreign Affairs of the Congo. He was charged with grave breaches of the Geneva Conventions and crimes against humanity. Belgium relied on its Law of 16 June 1993 "concerning the Punishment of Grave Breaches of the International Geneva Convention…and Punishment of Serious Violation of International Humanitarian Law
On 17 October 2000, Congo complained to the Court on two counts:
1. that Belgium had violated it sovereignty by exercising its authority in another state (as prohibited in article 2(1) of the Charter) [claim dropped by DRC
2.that Belgium had violated the Vienna Convention on Diplomatic Relations and asked the Court to annul the arrest warrant.
The Court found that Belgium failed to respect the immunity from criminal jurisdiction and the inviolability which the incumbent Minister for Foreign Affairs of the Congo enjoyed under international law; and that Belgium must cancel the arrest warrant.
The court found there was no distinction between acts performed in an official capacity and those in a private capacity. Nor was there a distinction between those acts performed before the person concerned assumed office and acts committed during the period of office—either way it would prevent him from functioning if her were arrested in another state.
The court also says the immunity does not equal impunity: the person may still be tried in certain circumstances:
1.in their own state,
2.where immunity is waived,
3.where the persons no longer hold office,or
4.where they are brought before international courts.
Bankovic v. Belgium
ECHR should be read to refer to territorial jurisdiction only.
l-Skeini v. UK Sec. of State (H of L 2007)
Claimant must be in the UK; otherwise unintended encroachment on the sovereignty of other states.
Al-Skeini v. UK Sec. of State (ECHR 2011)
Human rights obligations apply to its acts in Iraq and the UK had violated the European Convention on Human Rights by failing to investigate the circumstances of the killings
UN Convention on Jurisdictional Immunities of States (2004)
•Article 5: a state enjoys immunity in respect of itself and its property from the jurisdiction of the courts of another state subject to the provisions in the Convention.
•Article 10: if a State engages in commercial transaction with a foreign natural or juridical person…the State cannot invoke immunity from that jurisdiction (unless it is a commercial transaction between states or the parties agreed otherwise)