This chapter studies jurisdiction. The term ‘jurisdiction’ is generally understood by international lawyers as describing the extent, and limits, of the legal competence of a State, entity, or regulatory authority, to make, apply, and enforce legal rules with respect to persons, property, and other matters. Jurisdiction is the necessary corollary to State sovereignty under modern international law, for it represents the exercise of authority of that State in relation to conduct, or to consequences of events, that it deems itself competent to regulate. The quintessential areas of regulation that would be regarded as falling within the domestic jurisdiction of a State include the setting of conditions for the grant of nationality and the conditions under which aliens (non-nationals) may enter a State’s territory. The chapter then distinguishes the types of jurisdiction: prescriptive jurisdiction, enforcement jurisdiction, and adjudicative jurisdiction.
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Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter examines the limits of State jurisdiction under international law. It begins by considering the limits of a State's legislative jurisdiction, its jurisdiction to prescribe laws. It covers jurisdiction over territory; maritime jurisdiction; jurisdiction over nationals; protective jurisdiction; universal jurisdiction; and other extra-territorial extensions of jurisdiction. The discussions then turn to treaty-based jurisdiction; competing and conflicting jurisdiction; extradition and legal co-operation; resolving jurisdictional conflicts; and immunities and other limitations on the exercise of a State's jurisdiction.
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Jurisdiction refers to a state’s competence under international law to regulate the conduct of natural and juridical persons. The notion of regulation includes the activity of all branches of government: legislative, executive, and judicial. This chapter discusses prescriptive jurisdiction over crimes, civil prescriptive jurisdiction, the separateness of the grounds of jurisdiction, and enforcement jurisdiction.
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Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter presents an argument for the integration of Common Law and Equity jurisdictions by focusing on two objectives. The first is to show that the practical task of integration is unlikely to be as difficult as is often supposed. The second objective is more demanding. Whatever the practical and intellectual advantages of integration, there remains a persistent and powerful perception that integration is now impossible. The arguments invariably focus on allegations of profound and unbridgeable philosophical and jurisprudential divides between the two jurisdictions. The core concerns are that Equity is a uniquely conscience-based and discretionary regime whereas the Common Law is a rules- and rights-based regime. The chapter seeks to challenge that view.
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This chapter discusses the basic principles of national jurisdiction to prosecute crimes. Despite the growth of international courts and tribunals, no international criminal court has jurisdiction over all international crimes wherever committed. Thus, in practice, international criminal law will largely rely on prosecutions conducted before national courts, making the extent of national criminal jurisdiction a topic of vital importance. The chapter begins by introducing the different forms of jurisdiction and some basic distinctions. It then provides an overview of the theory of national prescriptive jurisdiction based on ‘links’ or ‘nexus’ between the crime and the prescribing State; outlines the principle of ‘universal jurisdiction to prescribe’ and its controversies; and looks to treaty-based systems of ‘quasi-universal’ jurisdiction over international crimes.
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Mark Elliott and Jason Varuhas
This chapter focuses on jurisdiction, beginning with the distinction between jurisdictional and non-jurisdictional matters. In particular, it considers whether something falls into the ‘jurisdictional’ or ‘merits’ question and how to decide into which category a given matter should be placed. It then examines the power to detain illegal entrants and how to determine whether a particular individual is an illegal entrant. It also discusses jurisdictional and non-jurisdictional errors of law and goes on to review one of the most celebrated cases in modern administrative law: the decision of the House of Lords in Anisminic Ltd v. Foreign Compensation Commission [1969] 2 AC 147. The chapter concludes with an analysis of errors of law as jurisdictional errors; the institutional status of the decision-maker; the nature of the statutory provision; applying statutory criteria to the facts; supervision of the fact-finding process; subjective jurisdictional criteria; and non-compliance with statutory requirements.
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This chapter examines the relationship between the Court of Justice (CJ) and the national courts in the context of the preliminary rulings procedure provided by Article 267 of the Treaty on the Functioning of the European Union (TFEU). It analyses the extent to which national courts are willing and able to gain access to the CJ in order to resolve the questions of European Union (EU) law before them. The analysis reveals that the CJ has rarely refused its jurisdiction or attempted to interfere with national courts' discretion in matters of referral and application of EU law, while national courts have generally been ready to refer cases to the CJ.
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Ross Cranston, Emilios Avgouleas, Kristin van Zweiten, Theodor van Sante, and Christoper Hare
This chapter first sets out seven cases that illustrate some of the legal problems arising from international banking. Many of these cases are not new, nor are most confined to banking. The chapter outlines of how these problems have been handled followed by an examination of the broader principles underlying the resolution of the harder cases. Comity, balancing, cooperation, and harmonization are considered. Jurisdictional clashes over banking matters continue to occur. Some are resolvable in accordance with established legal doctrine, some in accordance with bilateral and multilateral agreements between states. There remains a question mark over how much is achievable in reducing the conflict by pursuing notions of jurisdiction, comity, and the balancing of interests. Rather, shared concerns on substantive issues, such as money laundering and terrorist financing, are more likely to lead to deference by, and cooperation between, jurisdictions.
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This chapter analyses the essential characteristics of Equity. It identifies fourteen maxims that are useful and relevant today as guidelines for the operation of the equitable jurisdiction. The most important of the maxims are examined in some detail, namely that Equity is discretionary and is triggered by unconscionability. The meaning of discretion and the contemporary relevance of conscience and unconscionability are examined. Other maxims include that Equity will treat as done that which ought to be done and Equity responds to cynical conduct. This chapter explains the principles underlying these maxims and suggests that they are often subject to exceptions and sometimes it may even be necessary to redefine them to ensure that they are fit for purpose today.
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Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter discusses the relation between international law and criminal jurisdiction by states and examines the main heads of jurisdiction applied by states. It then analyzes the content of the relevant international rules dealing with domestic criminal jurisdiction for the repression of international crimes.
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Sir William Wade and Christopher Forsyth
This chapter discusses the scope of judicial review. Judicial review is a procedure for obtaining the remedies specified in the Senior Courts Act 1981, namely the quashing order, the prohibiting order, and the mandatory order and declaration and injunction. The scope of judicial review, therefore, is the same as the scope of these remedies. Their boundaries, as set out already, are fairly clear, but in the non-statutory area they are uncertain.
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This chapter analyses the essential characteristics of Equity. It identifies fourteen maxims that are useful and relevant today as guidelines for the operation of the equitable jurisdiction. The most important of the maxims are examined in some detail, namely that Equity is discretionary and is triggered by unconscionability. The meaning of discretion and the contemporary relevance of conscience and unconscionability are examined. Other maxims include that Equity will treat as done that which ought to be done and Equity responds to cynical conduct. This chapter explains the principles underlying these maxims and suggests that they are often subject to exceptions and sometimes it may even be necessary to redefine them to ensure that they are fit for purpose today.
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Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter discusses the main models that have been established to regulate issues of concurrent jurisdiction of international and national criminal courts over certain international crimes. It compares the Nuremberg scheme and the International Criminal Court (ICC) scheme. It considers the primacy of international criminal courts with respect to national jurisdictions, and the complementarity of the ICC. It also discusses the main models of states’ judicial cooperation with international criminal courts adopted so far.
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Chanaka Wickremasinghe
This chapter examines the immunities enjoyed by various categories of officials of States and international organizations. It identifies jurisdictional immunity as one of the key legal techniques by which diplomatic relations and, more broadly, international relations and cooperation can be maintained. It recognises that recent developments in international law have increasingly required that immunities be scrutinised and justified, particularly where they impact on individual rights. Among the most striking of such challenges to immunities are those that have arisen in relation to measures which seek to bring an end to the impunity of persons who commit the most serious international crimes, including measures such as the development of extraterritorial jurisdiction and the establishment of international criminal tribunals. A range of judicial decisions is reviewed in order to determine how international law has attempted to reconcile such conflicting priorities in this respect.
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This chapter examines the three types of contract that are treated by the courts as void: contracts to oust the jurisdiction of the courts; contracts prejudicial to the status of marriage; and contracts in restraint of trade. The legal consequences of such contracts are also discussed.
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A State’s administrative, judicial, executive and legislative activity is part of the exercise of its sovereignty, sometimes known as its jurisdictional sovereignty. This chapter examines the objects of a State’s jurisdictional sovereignty (both natural and legal persons) and the circumstances in which it may be exercised. It considers the general principles of jurisdiction; grounds for the assertion of jurisdiction by national courts; and state jurisdiction and persons apprehended in violation of international law.
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Sir William Wade and Christopher Forsyth
This chapter discusses the objective boundaries of discretionary powers and the way in which the courts police them. Inherent in all discretionary power is the power to decide freely, whether rightly or wrongly, without liability to correction, within the area of discretion allowed by the law. Until fairly recently this liberty to make mistakes within jurisdiction extended to significant mistakes both of law and of fact. The extent to which both these classes of error have been brought within the scope of judicial review is explained.
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Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on the circumstances in which the courts may approve the variation of a trust. A trust may be varied by a power within the trust itself; by the collective consent of the beneficiaries; by the court, through its inherent jurisdiction; or by statute. The power of the courts to intervene will depend on whether the variation relates to administrative or managerial matters or a reorganization of the beneficial interests. The Variation of Trusts Act 1958 gives the courts a wide jurisdiction to vary a trust for the benefit of those beneficiaries unable to consent.
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Alisdair A. Gillespie and Siobhan Weare
This chapter examines the jurisdiction and structure of tribunals. It then considers two very different tribunals through the use of case studies, namely the Employment Tribunals and the Investigatory Powers Tribunal. Tribunals have existed for many years but have traditionally operated as an oversight system for administrative issues. In recent years, the number of tribunals has increased and their work has begun to involve more complicated legal questions. Tribunals are now, in essence, a parallel system of dispute resolution and their complexity is recognized by the fact that their presiding officers now bear the title of ‘judge’. This chapter examines this parallel judicial system and identifies similarities between and differences from court justice.
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Sarah Joseph and Sam Dipnall
This chapter first defines the key concepts of ‘state responsibility’ and ‘jurisdiction’. It then identifies the duty-bearers and beneficiaries of human rights law, explains the instances in which a state is held responsible for the actions or omissions of particular persons or entities, and, finally, addresses the extra-territorial scope of application of human rights law.
