Theories of Jurisdiction in International Law
International Jurisdiction Jurisdiction refers to the power of a state to affect persons, property, and circumstances within its territory. It may be exercised through legislative, executive, or judicial actions. International law particularly addresses questions of criminal law and essentially leaves civil jurisdiction to national control. No state is obligated to exercise its jurisdiction even if international law would raise no objections.
Theories of International JurisdictionTerritorial PrincipleNational PrinciplePassive Personality PrincipleProtective PrincipleUniversality Principle
According to the territorial principle, states have exclusive authority to deal with criminal issues arising within their territories; this principle has been modified to permit officials from one state to act within another state in certain circumstances.
Territorial Principle allows a state to apply its law to:Conduct that wholly or in substantial part, takes place within its territory;The status of persons, or interests in things, present within its territory;Conduct outside its territory that has or is intended to have substantial effect within its territory. Restatement Third 402 (1)
Territorial PrincipleA state has jurisdiction to adjudicate under the territorial principle if the exercise of jurisdiction is reasonable.Territorial jurisdiction is exercised regarding conduct outside its territory that has or is intended to have substantial effect within its territory.
Nationality PrincipleThe nationality principle recognizes that a sovereign can adopt criminal laws which govern the conduct of the sovereigns nationals while outside of the sovereigns borders. Under this principle, for example, a sovereign can make it a crime for its nationals to engage is sexual relations with minors while outside of its borders or to pay bribes outside of its borders to public officials of another sovereign.
Nationality PrincipleThe nationality principle has the effect of allowing a sovereign to adopt laws that make it a crime for its nationals to engage in conduct that is not illegal in the place where the conduct is performed.
The nationality principle permits a country to exercise criminal jurisdiction over any of its nationals or entities accused of criminal offenses in another state.
Nationality PrincipleFor example, under this principle a sovereign could make it a crime for its nationals to gamble. If Bob, one of the sovereigns nationals goes to Jamaica and gambles, notwithstanding that gambling is perfectly legal in Jamaica, Bob has committed a crime in his country and is subject to prosecution.
Nationality PrincipleThe exercise of nationality principle could results in concurrent jurisdiction over a defendant by separate state.
Passive Personality PrincipleThe passive personality principle recognizes that a sovereign can adopt laws that apply to conduct of foreign nationals who commit crimes against the sovereigns nationals while the sovereigns nationals are outside of the sovereigns territory.
Passive Personality PrincipleJurisdiction on the nationality of the victim-has not been generally accepted for non-terrorist acts that might injure or even kill someone, but in recent years it has been increasingly accepted for acts of organized violence directed specifically against nationals of the regulating state, including diplomats and other public officials.
The principle permits a state to exercise jurisdiction over certain conduct outside its territory by persons not its nationals that are directed against the security of the state or against a limited class of other state interests.EspionageCounterfeitingFalsifying documentsOther issues involving the security of the state
Limitations of Jurisdiction Even when one of the bases for jurisdiction under 402 is present, a state may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable.
Limitations of Jurisdiction Whether exercise of jurisdiction over a person or activity is unreasonable is determined by evaluating all relevant factors, including, where appropriate:(a) the link of the activity to the territory of the regulating state, i.e., the extent to which the activity takes place within the territory, or has substantial, direct, and foreseeable effect upon or in the territory;
Limitations of Jurisdiction (b) the connections, such as nationality, residence, or economic activity, between the regulating state and the person principally responsible for the activity to be regulated, or between that state and those whom the regulation is designed to protect;(c) the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to which other states regulate such activities, and the degree to which the desirability of such regulation is generally accepted.
Limitations of Jurisdiction (d) the existence of justified expectations that might be protected or hurt by the regulation;(e) the importance of the regulation to the international political, legal, or economic system;(f) the extent to which the regulation is consistent with the traditions of the international system;(g) the extent to which another state may have an interest in regulating the activity; and(h) the likelihood of conflict with regulation by another state.
Limitations of Jurisdiction When it would not be unreasonable for each of two states to exercise jurisdiction over a person or activity, but the prescriptions by the two states are in conflict, each state has an obligation to evaluate its own as well as the other state's interest in exercising jurisdiction, in light of all the relevant factors, including those set out in Subsection (2); a state should defer to the other state if that state's interest is clearly greater.
Universality PrincipleA state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism, even where none of the bases of jurisdiction indicated in 402 is present.
Universality PrincipleThe universal principle recognizes that a sovereign can adopt criminal laws that apply to conduct performed by any person any where in the world when the conduct is recognized by nations as being of universal concern.
ExtraditionThe transfer of an accused from one state or country to another state or country that seeks to place the accused on trial.Extradition comes into play when a person charged with a crime under state statutes flees the state. An individual charged with a federal crime may be moved from one state to another without any extradition procedures.
ExtraditionArticle IV, Section 2, of the U.S. Constitution provides that upon the demand of the governor of the prosecuting state, a state to which a person charged with a crime has fled must remove the accused "to the State having Jurisdiction of the Crime."
ExtraditionWhen extraditing an accused from one state to another, states follow the procedures set forth in the Uniform Criminal Extradition Act, which has been adopted by most jurisdictions. A newer uniform act, the Uniform Extradition and Rendition Act, is designed to streamline the extradition process and provide additional protections for the person sought, but by 1995, it had been adopted by only one state.North Dakota. See N.D. Cent. Code29-30.3-01-29-30.3-21 (2007).
ExtraditionIn some cases, courts considering extradition from one state to another may go beyond the procedural formalities and look at the merits of the criminal charge or at allegations by the accused. Such cases seldom take place because under the U.S. Constitution, states are not given the power to review the underlying charge. New Mexico ex rel. Ortiz v. Reed, 524 U.S. 151 (1998) (New Mexico refused to return a fugitive to the state of Ohio).
ExtraditionThe court considering an extradition case can only decide four issues: (1) whether the extradition documents on their face are in order, (2) whether the petitioner has been charged with a crime in the demanding state, (3) whether the petitioner is the person named in the request for the extradition, and (4) whether the petitioner is a fugitive. The New Mexico Supreme Court in Reed determined that the person subject to the extradition, Manuel Ortiz, was not a "fugitive," and refused to honor the extradition order from the state of Ohio. The Supreme Court found that New Mexico courts had overstepped their authority and ordered the New Mexico Supreme Court to return the fugitive.
Extradition & International RelationsExtradition between nations is usually based on a treaty between the country where the accused is currently located and the country seeking to place him or her on trial for an alleged crime. The United States has entered into extradition treaties with most countries in Europe, Latin America, and with a few countries in Africa and Asia.
Extradition & International RelationsExtradited pursuant to a treaty is based on the language of the particular treaty.Some treaties list all the offenses for which a person can be extradited, or provide a minimum standard of punishment that renders an offense extraditable.
Doctrine of double criminalityMo