- Gleider HernándezGleider HernándezProfessor of Public International Law, Katholieke Universiteit Leuven and Open Universiteit Nederland
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.
8.1 Introduction: the reach of the State
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, 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.1
The importance of the principles governing jurisdiction for international law cannot be overstated. If jurisdiction represents the power of a State or other entity to regulate the conduct of individuals and their relations with one another, it determines the public order of a society composing a State, and perhaps the very qualities that distinguish one State from another. The formulation of jurisdictional claims, to the exclusion of other States, is thus a classic exercise of sovereignty, and is safeguarded in Article 2(7) of the UN Charter as what is known as the domaine reserve: ‘[n]othing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require the members to submit such matters to settlement under the present Charter’.
Watch a video tutorial from the author introducing the key topics of this chapter in the online resources.
8.1.1 Domestic jurisdiction
Some classic areas of regulation 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. However, to claim p. 211↵domestic jurisdiction is not a shield against non-intervention; matters of domestic regulation (such as human rights or environmental legislation) may well have international legal effects, and the question of whether a given subject falls within the domestic jurisdiction of States is one of international law.2 For example, though a State is free to formulate conditions in its domestic law with respect to the acquisition of its nationality, the ICJ emphasized in Nottebohm that the international legal effect of the grant of nationality falls within the ambit of international law.3
Contemporary Developments Extraterritorial jurisdiction: the Cuban embargo
An interesting exercise of extraterritorial jurisdiction relates to the US–Cuba relationship and the continued US embargo against Cuba for its expropriation of US assets following Fidel Castro’s revolution. An interesting twist in the relationship emerged in 1996, with the Cuban Liberty and Democratic Solidarity (Libertad) Act (Helms–Burton Act), 110 Stat 785, through which the USA purported to extend its embargo against Cuba to apply also to foreign companies trading with Cuba or ‘trafficking’ in assets formerly held by US nationals.
The Helms–Burton Act was enacted in the context of the General Assembly passing resolutions annually, calling for an end to the economic, commercial, and financial blockade imposed by the USA against Cuba. Despite the re-establishment of certain ties between the two States in 2015, the embargo has remained. However, in a remarkable shift, instead of voting against the resolution calling for the end of the embargo, in 2016 the USA and Israel (the only two States not voting in favour) abstained for the first time (see UNGA Res 71/5 (26 October 2016)). This represented a marked shift in the Assembly from the first resolution passed in 1992, which received 59 yes votes, 3 votes against, and 71 abstentions. However, from 2017 to 2021, the USA and Israel resumed their opposition to the resolution, being the only two States voting against it (see eg UNGA Res A/75/L.97 (21 June 2021)).
After a period of thawing relations, under US President Trump the USA resumed its policy of opposition to the Cuban regime, already in 2017 reinstating all business and travel restrictions that had been loosened by President Obama, and imposing new restrictions. At the time of going to press, none of these had been lifted by new US President Biden. US assertions of extraterritorial jurisdiction in relation to Cuba thus remain pertinent a half-century later.
The exercise of jurisdiction also delimits the extent of a State’s coercive powers, especially in relation to those of other States. Put more simply, a State seeking to enforce its law against a national who commits an act in the territory of another State would risk infringing on the jurisdiction of the other State, raising issues of international comity; and overreach by a highly assertive State may lead to resistance from other States. p. 212↵The question becomes acutely sensitive if the individual over which a State seeks to exercise jurisdiction is breaching international law in the territory of another State: that situation is discussed at Section 18.104.22.168.
8.1.2 Jurisdiction and territory
Jurisdiction is often closely linked with territory. The jurisdictional nexus is easy to establish over an act occurring in one’s territory, and enforcement jurisdiction is far easier to exercise than beyond State borders. But jurisdiction is not territorially confined, as many States claim the jurisdiction to try offences that have occurred outside their territory, such as the nationality of the victim, the gravity of the act, or the protection of an essential State interest. What is more, the reality of diplomatic relations between States has led to certain persons, property, and circumstances being excluded from the exercise of territorial jurisdiction.4 Simply put, jurisdiction cannot simply be equated with territorial sovereignty. It is, therefore, the role of international law to develop a framework to accommodate the range of potentially conflicting claims of extraterritorial jurisdiction by several States.
8.2 Types of jurisdiction
8.2.1 Distinguishing prescriptive, enforcement, and adjudicative jurisdiction
22.214.171.124 Jurisdiction to prescribe
Under international law, a State may regulate conduct as it wishes; such regulation may be achieved through legislative, executive, or judicial means. A State’s legislative jurisdiction, or ‘jurisdiction to prescribe’, through which its constitutionally recognized organs make binding laws regulating affairs in its territory and sometimes abroad, is perhaps the most prevalent.5 This relates to the basic question of over whom, and in what situations, a State may extend its laws, compel conduct, or impose certain penalties. For example, a State has exclusive legislative jurisdiction to set the procedures through which it passes laws, or the rules of procedure for its courts. However, a State may not pass legislation to alter the procedures through which the organs of other States will operate.6
Legislative jurisdiction requires a jurisdictional nexus for a State to exercise it validly. Territorial sovereignty is perhaps the most obvious, but a State may legislate with extraterritorial effect; for example, to levy taxes against persons not on its territory but with whom it enjoys a genuine link, such as nationality or domicile.7 It may also nationalize p. 213↵the property of aliens located in its territory, but only in an exercise of prescriptive jurisdiction, as international law would not permit a State to enforce the expropriation of foreign-owned property located abroad. Even within its territory, a State may not exercise its legislative jurisdiction contrary to its international obligations. Such obligations may take the form of treaties to which the State has consented (eg regarding human rights, the protection of the environment, and diplomatic privileges and immunities), customary international law (eg the treatment of aliens located in the country), or jus cogens (eg the prohibition against torture or crimes against humanity).8
126.96.36.199 Jurisdiction to enforce
One must carefully distinguish between the capacity to make legal rules, known as prescriptive jurisdiction, from the capacity to ensure or to compel compliance with such legal rules, known as enforcement jurisdiction. Officials and organs of States exercise exclusive ‘jurisdiction to enforce’ over certain persons or conduct located in their territory.9 Subject to very limited exceptions, such as the right to ‘hot pursuit’ in territorial waters (covered in Chapter 18), they only carry out their functions in the territory of another State with its express consent,10 in particular with respect to apprehending persons or seizing property abroad.11 As a general rule, while States claiming prescriptive jurisdiction will not ipso facto offend the sovereignty of another State, the exercise of enforcement jurisdiction may well do so in certain circumstances. Accordingly, enforcement jurisdiction is in principle confined to the territorial jurisdiction of a State, though States may cooperate to bring offenders to justice. In June 2021, for example, Europol announced that ‘Operation Trojan Shield/Greenlight’—a coordinated effort between the law enforcement agencies of nearly 20 States, Europol, and the US Drug Enforcement Administration—had resulted in the arrest of 800 criminals in connection with encrypted criminal activities, including drug trafficking, organized crime, and money laundering.12
A standard example given is that it falls within the prescriptive jurisdiction of a State to criminalize a crime (such as rape) and extend the application of that prohibition to all its nationals located abroad; but it does not fall within its enforcement jurisdiction to deploy its police or armed forces to the territory of another State without first seeking that State’s consent to apprehend an accused person. For example, in the 2019 Jadhav case between India and Pakistan before the ICJ, India claimed that Mr Jadhav, an Indian p. 214↵national, had been kidnapped from Iran and subsequently prosecuted for espionage and terrorism in Pakistan (and sentenced to death). Pakistan denied any violation, contending that in fact he had been arrested in Balochistan, on the Pakistani side of its border with Iran, having entered illegally.13
188.8.131.52 Jurisdiction to adjudicate
There also exists the competence of a State’s courts to try cases in which a foreign element exists: its ‘adjudicative jurisdiction’.14 Such jurisdiction is usually conditioned on a number of grounds through which it may be claimed,15 such as a material link between the State and the act. A good example is the well-known Alien Tort Statute (USA) which allows for civil lawsuits against foreign nationals for actions committed abroad. In 2013, the US Supreme Court severely curtailed the scope of the Alien Tort Statute, holding that it was subject to a ‘presumption against extraterritoriality’ that would not apply to violations of international law alleged to have occurred in foreign States and that usually it could not apply to claims involving alleged human rights abuses or other violations of international law alleged to have occurred in a foreign State.16p. 215↵
Case Spotlight Case of the S.S. ‘Lotus’ (France v Turkey), Judgment No 9 (1927) PCIJ Ser A, No 10, p 5
In an early case of the PCIJ, commonly referred to as the Lotus judgment, the complexities of prescriptive and enforcement jurisdiction became evident. The case concerned the collision of a French steamer (the Lotus) and a Turkish steamer (the Boz-Kourt), tragically resulting in eight deaths. When the Lotus entered Constantinople (only renamed Istanbul in 1930), proceedings were entered against the French officer. France objected on the grounds that no State could extend its law to foreign ships on the high seas, so the question in issue was whether a French national could be prosecuted by Turkish authorities, for acts outside Turkish territory, on the high seas.
The PCIJ concluded that Turkey was entitled to exercise jurisdiction. At first confirming the principle that enforcement jurisdiction could not be exercised in the territory of another State, it remarked that:
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. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases … Far from laying down a general prohibition to [that] effect … [international law] leaves [States] a wide measure of discretion which is only limited in certain cases by prohibitive rules. (at 19)
This passage has become a standard reference for the principle that a State may extend its prescriptive jurisdiction as it wishes, unless a specific prohibition exists in international law. Yet this is not fully accurate. State practice seems relatively settled that a State asserting a novel form of extraterritorial jurisdiction bears the burden of proof of establishing its right to do so. Objecting States have consistently taken the view that they have no obligation to prove that a prohibitive rule exists, usually by asserting that the acting State has ‘no right’ to exercise jurisdiction in that situation. The question of which party bears the burden of proof is especially relevant when one State claims to prescribe rules for persons in another State such that it would encroach upon the right of the second State, where those persons are based, to exercise jurisdiction itself over those persons.
As such, the better interpretation of the PCIJ’s view in Lotus is that a jurisdictional nexus is required between the State claiming to exercise prescriptive jurisdiction and the conduct that it claims to regulate. Without such a linking point, of which only the principles of territoriality and nationality are firmly established, the State asserting jurisdiction bears the burden of establishing why it is entitled to legislate for anyone other than persons in its territory and for its nationals abroad. What matters most is that any jurisdictional principle invoked by a State is accepted by other States as being consistent with international law.
For further reading on this debate, see the critiques in E Lauterpacht (ed), International Law Being the Collected Papers of Hersch Lauterpacht (CUP, 1970), vol I, 488–9; and G Fitzmaurice, ‘The General Principles of International Law considered from the Standpoint of the Rule of Law’ (1957) 92 Recueil des Cours 1, 56–7.
8.2.2 The territorial principle
To exercise jurisdictional authority over a given territory has for centuries been regarded as a necessary condition for a State to be sovereign over that territory.17 Relative to other forms of jurisdiction, territoriality is the easiest basis on which to claim jurisdiction, whether prescriptive, enforcement, or adjudicative in its scope.
184.108.40.206 General principles of territoriality
All persons found within the territory of a State are bound by its laws. When an alien enters the territory of a State, that alien is bound to—and enjoys protection from—the entirety of the body of laws of that State. A State obviously may create exceptions for foreign visitors, such as exempting them from military service or releasing them from paying social security, but these are written into its law. Without such domestic law exceptions, only those obligations required by international law, such as those required p. 216↵by treaties on diplomatic relations, customary law (in particular in relation to human rights), or jus cogens restrict what is otherwise the unlimited and exclusive sovereignty of a State over its territory.
A State’s territory extends beyond its land territory and also encompasses its territorial waters (up to 12 nautical miles from its coastline), and the airspace above its land and sea territories.18 Accordingly, ships within their territory, and aircraft flying above it, are subject to its jurisdiction. This is not necessary: after Malaysian Airlines flight MH68 exploded over Ukraine while en route from the Netherlands to Malaysia in early 2014, Ukraine participated in an international investigation.19
In this regard, the boundaries and limits entailed by the application of the territorial principle are appealingly simple; the principle certainly captures acts committed by a State’s nationals against other nationals of that State, and those which occur wholly in the territory of a single State. As both the Lotus case and the Malaysian Airlines incidents demonstrate, however, some acts straddle multiple States, while other more complex acts might involve multiple components and actors, terrorist acts being a particularly good example.
220.127.116.11 Subjective and objective territorial jurisdiction compared
To address more complex situations, international law has developed several variants on territorial jurisdiction through which a State may claim to exercise jurisdiction. The first, subjective territorial jurisdiction, allows a State to exercise prescriptive jurisdiction where it claims to regulate an act or incident which is initiated within its territory but only completed (‘consummated’) outside it. Objective territorial jurisdiction describes the reverse situation; namely, the exercise of prescriptive jurisdiction by a State over an act or incident which originated outside its territory, but which is then concluded (again, ‘consummated’) within it. Imagine for a moment the implantation of malware in State A that then temporarily shuts down the cyber infrastructure of State B. State A would claim to exercise subjective territorial jurisdiction, as the malware was implanted in its territory. State B would claim to exercise objective territorial jurisdiction, as the consequences of implantation were suffered in its territory. Because ships and aircraft are treated as the ‘floating territory’ of the State of registration, the Turkish claim to exercise jurisdiction over the Lotus was an example of objective territorial jurisdiction, and one on which the PCIJ sided with Turkey.20 In order to facilitate efficiency and reduce possible conflicts, States routinely sign cooperation agreements in which various collaborative methods are deployed. For example, the Channel Tunnel protocol accords the UK and France p. 217↵limited jurisdictional rights in the other State’s territory,21 and specifically empowers frontier officers of the other State to work in specified ‘control zones’ in each other’s territory.22 Taking a slightly different approach, a 1991 agreement between Denmark and Sweden created a multinational consortium with the authority to build, maintain, and control the Øresund Bridge, a binational organization that operates on both sides of the international boundary.23
Finally, in the 1994 Israel–Jordan Treaty of Peace, two specific areas under Jordanian sovereignty are identified in which Israeli private interests and land ownership rights are recognized. Jordan has undertaken to grant unimpeded entry to and exit from, land usage, and movement within the area to landowners, as well as the entry of uniformed Israeli police officers to investigate any incidents related to those landowners. Jordan has also agreed, in the two areas, not to enforce its criminal law to activities concerning only Israeli nationals; in such cases, Israeli legislation relating to the extraterritorial activities of Israelis may be applied.24
18.104.22.168 The ‘effects’ doctrine: an extension of ‘objective territorial jurisdiction’
A controversial source of jurisdiction derives from a variant of ‘objective territorial jurisdiction’, known as the ‘effects doctrine’. Spearheaded by the USA in the context of antitrust law, the USA has claimed jurisdiction over the conduct of non-US entities whose activities were intended to affect its internal market.
The first US case to recognize the doctrine was US v Alcoa, in which the USA asserted jurisdiction over the conduct of a non-US company, on the basis that it was part of a cartel, the collective action of which successfully influenced imports to and exports from the USA. The US District Court concluded that the intentional production of economic effects within the USA, even though all acts were committed outside that State, was sufficient to create a jurisdictional nexus: ‘any State may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the State reprehends’.25 The Helms–Burton Act mentioned earlier is similar in scope, asserting jurisdiction over non-US nationals for p. 218↵conduct abroad; in particular, the ‘trafficking’ in property expropriated by Cuba from US nationals.26
Though the effects doctrine as espoused by the USA has faced considerable international opposition, other jurisdictions have employed similar practices. In the 2017 ECJ judgment in Intel v European Commission, Intel (a US corporation) had contended that the European Commission’s assertion of jurisdiction over it, to conclude that Intel had abused its dominant position in the global microprocessor market by granting exclusivity rebates to computer manufacturers located outside the EU, was contrary to international law. The ECJ rejected Intel’s claim, stating unambiguously (and for the first time) that ‘the qualified effects test allows the application of EU competition law to be justified under public international law when it is foreseeable that the conduct in question will have an immediate and substantial effect in the European Union’.27
In a twist, in 2006 the ECtHR was faced with a potential claim of human rights violations based, essentially, on the ‘effects’ doctrine. Mr Ben El Mahi and several other individuals and associations, all based in Morocco, submitted an application against Denmark, claiming that the publication of offensive cartoons and caricatures of the Prophet Muhammad in Denmark (in particular one showing him as a terrorist with a bomb in his turban) had caused several human rights violations, inter alia, discrimination and a violation of their freedom of religion. The claim was unsuccessful: the ECtHR declared the claim inadmissible, on the basis that notwithstanding the claimed extraterritorial effects, ‘there is no jurisdictional link between any of the applicants and … Denmark, [nor can they] come within the jurisdiction of Denmark on account of any extraterritorial act’.28
8.2.3 The nationality principle
International law doctrine makes it easy to overlook the basic reality that States remain composed of individual human beings organized into a political community. Since the raison d’être of sovereignty and jurisdiction is the organization of the conduct of those human beings, it follows logically that a State and its nationals (or citizens) remain inextricably linked, with the State having a long-established right to extend the application of its laws to its nationals, even for acts committed abroad. Occasionally, nationality-based jurisdiction is referred to as the ‘active personality’ principle, as opposed to the ‘passive personality’ principle whereby jurisdiction is founded on the nationality of the victim (see later, Section 8.2.5).
p. 219↵Abundant State practice exists of States asserting jurisdiction over certain acts of their nationals committed abroad under certain conditions, though this can be done in different ways. Some States, like Germany, Belgium, the Netherlands, and Egypt enact general clauses that an offence be punishable both by the State of nationality and in the territory where it was committed (so-called ‘double criminality’).29 The USA and the UK, conversely, exercise legislative jurisdiction expressly on the basis of nationality; for example, to prohibit certain crimes committed abroad,30 the commission of corrupt practices or bribery abroad,31 or proscribing the commission of acts relating to terrorist conspiracy.32 Treaties routinely confirm the right of a State assert jurisdiction over its nationals for acts committed abroad, such as the Budapest Convention on Cybercrime.33 Intriguingly, the Lanzarote Convention on crimes relating to the sexual exploitation or sexual abuse of children requires States to exercise jurisdiction over all those who have ‘habitual residence’ in a State’s territory.34
Though no definition of the term ‘nationality’ as such exists, in the Nottebohm case the ICJ described nationality as ‘a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties’.35
Two key points regarding the conferral of nationality are relevant for jurisdiction in international law. First, as a general rule, it falls within the domaine reservé (‘reserved domain’ of domestic jurisdiction) of a State to decide who its nationals are, and to lay down conditions for the grant of nationality.36 However, as set out in Article 1 of the 1930 Hague Convention on Nationality, this prerogative is not unlimited, and a State may not set conditions for the determination of its nationality that breach its treaty obligations, p. 220↵customary international law, or ‘principles of law generally recognized with regard to nationality’.37 With respect to natural persons, two common principles used by States to accord their nationality are by descent from a parent who is him/herself a national (jus sanguinis),38 or by virtue of being born in the territory of the State (jus soli).39 These are not mutually exclusive; a few States recognize both types of links as sufficient to establish nationality.40
States may also grant their nationality to a citizen of another State, through a process called naturalization, a process that usually relates to that person establishing a durable bond with the State granting nationality; for example, through a period of residence or through marriage to a national of that State. There are limits to this freedom: the mass imposition of nationality upon unwilling people with no link to the State, nationality obtained through fraud or corruption, or the grant of nationality in order to circumvent international legal obligations might not be considered to have international legal effect.
Theory and Debates The taxation of nationals residing abroad
A State’s claim to regulate morally objectionable behaviour, or behaviour against public order, is justifiable if one accepts the proposition that a State is a political community with a shared set of values. A different justification arises in relation to States who tax their nationals who reside permanently abroad, on their income earned abroad. Currently, two States do so systematically and comprehensively: Eritrea and the USA. The USA is particularly striking given the number of its foreign nationals living abroad (more than six million).
The US taxation of global income through the Revenue Act of 1921 (Pub L No 98, §210, 42 Stat 227) has been challenged; however, in 1924 the US Supreme Court found that taxation on global income was constitutional (Cook v Tait, 265 US 47 (1924)). In practice, however, a matrix of legislation is required in order to secure enforcement extraterritorially. For instance, a Report of Foreign Bank and Financial Accounts (FBAR) imposes reporting requirements on individuals, whereas the Foreign Account Tax Compliance Act (FATCA), requires foreign financial institutions to report on the accounts of US nationals living abroad with deposits of more than $50,000.
The implementation of FATCA, in particular, has driven a rise in US citizens giving up their citizenship since its adoption in 2013. Moreover, foreign financial institutions—irrespective of whether they operate in the USA—find themselves subject to US jurisdiction merely by virtue of having permitted a US citizen to open a bank account.
p. 221↵As a matter of State practice, nationality is regarded as conferring upon a person a series of rights, such as the right to vote, the right to obtain a passport, or the right to demand protection from the State of nationality when travelling abroad. Some States limit the holding of certain offices, such as election to a legislature or appointment to a diplomatic post, to nationals only, or exclude dual nationals from certain positions.41 States may also extend certain of these rights to non-nationals: to give a few examples, Irish and Commonwealth citizens may vote in the UK if resident there,42 and all permanent residents may vote in New Zealand.43 Under Article 20 (originally Article 17) of the Treaty on the European Union, a national of any member State is also a ‘citizen of the European Union’, and enjoys a number of rights across all member States, including freedom to move, work, and reside freely in any member State, as well as the right to vote in and run as a candidate in local or European elections.44
In addition, nationals often have certain obligations to a State, such as jury service, the payment of taxes, or conscription in times of armed conflict. Moreover, some States (such as Colombia, Greece, Israel, and Kuwait) provide for compulsory military service. Under international law, a State may not conscript the nationals of other States into their armed forces, and may only levy taxes upon them if a plausible link, such as residency or the place of activity, may be established. Subject to the claim of ‘passive personality’ (see Section 8.2.5), a State should also refrain, as a general matter, from prosecuting non-nationals for crimes committed outside its territory.45
With respect to legal persons such as corporations, States may accord nationality to them on the basis of their incorporation operating within the territory of that State, or may confer their nationality based on the seat of management of the corporation.46 This distinction is key in a world of multinational corporations with subsidiaries incorporated around the world, especially in relation to matters of corporate taxation. Similarly, States are entitled to fix the conditions for the grant of their nationality to ships, for the registration of ships in their territory, and the right for a ship to fly a State’s flag, provided that a ‘genuine link’ exists between a State and the ship.47 Aircraft have the nationality of the State in which they are registered, though States remain free to set the conditions for registration.48 With respect to both ships and aircraft, States generally require that p. 222↵the vessel or aircraft operates from a home port in the State or that a certain proportion of the owners or crew have the nationality of the State.
8.2.4 The protective principle
The concept of protective jurisdiction has long been invoked by States to assert that, when their vital interests are endangered, they may claim jurisdiction in order to protect themselves, even against activities committed by non-nationals that take place outside their territory. The protective principle is relatively well established in the abstract; most uncertainties lie in the extent to which it operates in practice, as well as the types of acts against which it may be invoked.49
As the category of ‘vital interests’ is not closed, States have asserted protective jurisdiction on a wide range of activities. Briefly, these include:
the smuggling of narcotics;52
the printing of counterfeit currency;53
a conspiracy to commit treason or a coup d’état;54
illegal immigration or the trafficking of human persons;56 and
attacks on diplomatic personnel located abroad.57
Though these cover a wide range of activities, they are all closely linked to essential State functions, unlike, for example, sexual offences committed abroad or competition/antitrust legislation.p. 223↵
Case Spotlight Attorney-General of the Government of Israel v Eichmann (1961) 36 ILR 5 (District Court of Jerusalem, Israel)
The controversial Eichmann case is frequently oversimplified in international law as an exercise of pure universal jurisdiction, even though an important part of the court’s reasoning rests on other questions. Eichmann, a German national and former head of the Jewish Office of the German Gestapo, was captured by Israeli agents in Argentina in 1960, and abducted to Israel without Argentina’s consent. He was prosecuted in Israel under a 1951 law for war crimes and crimes against the Jewish people for crimes committed during World War II, before the entry into force of the legislation. His counsel suggested that the Israeli statute violated international law for a number of reasons: it was, inter alia, retroactive, and thus in violation of the nulla poena sine lege principle (‘no punishment without valid law’), and on grounds that it constituted an excess of the exercise of jurisdiction as it concerned a crime against persons who were not nationals, and committed outside its territory. Defence counsel also challenged the peculiar circumstances through which Eichmann was delivered into custody.
The Israeli court gave extensive treatment to international law materials in arriving at its conclusions. Its first conclusion was that, due to the nature of the abhorrent crimes concerned, it was indeed possible for the Knesset, Israel’s legislative body, to claim jurisdiction over these acts, which were delicta juris gentium (crimes against the law of nations itself). Secondly, though the court suggested that universal jurisdiction, claimed on the basis of international law itself, would suffice to dismiss the defence of nulla poena sine lege, it should be noted that Israel’s ‘right to punish’ was based on the protective principle, which allowed it to prosecute individuals for crimes injuring its ‘vital interests’. A ‘crime against the Jewish people’, even prior to the existence of the State of Israel, was sufficient to constitute a ‘linking point’ allowing Israel to claim jurisdiction legitimately.
Finally, on the irregularity of the abduction from Argentina through which Eichmann was brought within the jurisdiction of Israel (he was drugged and dressed as a flight attendant for rendition), the Jerusalem court concluded that it was not Eichmann’s rights that were violated, but those of Argentina in relation to its sovereignty. Because Argentina had waived its rights in a joint communiqué with Israel, the court concluded that any violation of international law that might have occurred had been ‘cured’.
For a revisiting of the events leading to the Eichmann judgment, see W Schabas, ‘The Contribution of the Eichmann Trial to International Law’ (2013) 26 Leiden JIL 667; and, of course, the timeless Hannah Arendt book Eichmann in Jerusalem: A Report on the Banality of Evil (Viking Press, 1963).
8.2.5 The ‘passive personality’ principle
A controversial basis for prescriptive jurisdiction is the ‘passive personality’ principle, whereby a State is entitled to exercise jurisdiction over non-nationals for acts committed abroad, on condition that the victims are nationals of the State claiming jurisdiction.
Passive personality as a basis for jurisdiction seems to have been resurrected in recent years, with States claiming passive personality jurisdiction as a variant of jurisdiction based on universality, frequently in connection with grave violations of human p. 224↵rights (see Section 22.214.171.124). Though its status as a customary law principle remains unsettled, States have entered into treaties permitting passive personality jurisdiction with respect to the specific offences including hostage-taking, hijacking, and terrorism. Article 9 of the Hostages Convention allows the national State of a hostage to exercise passive personality jurisdiction over an offence committed abroad by a non-national ‘if that State considers it appropriate’.58 Article 4(b) of the Tokyo Hijacking Convention allows for a State to exercise jurisdiction if the offence has been committed against its nationals or permanent residents.59 Article 7(2)(a) of the Terrorism Financing Convention allows States to exercise jurisdiction for certain offences committed either in the territory of a State or against a national of that State.60 Finally, certain States have passed legislation based on passive personality in relation to specific crimes, such as the Netherlands in relation to certain cybercrimes61 or the USA in relation to terrorist acts committed abroad.62p. 225↵
Historical Background The ‘unequal treaties’
Extraterritorial jurisdiction based on passive personality jurisdiction has a long and unfortunate pedigree in international law, with treaties being imposed by European States and later, the USA, on the Ottoman Empire, Persia, Siam, China, and Japan in the nineteenth century. Such treaties, non-reciprocal, allowed for nationals of the Western powers to roam freely in the host States, subject to no laws but those of their national State. In fact, Western powers reserved the right to take jurisdiction over anyone who entered into a contract or committed a tortious or delictual act against their nationals, even though abroad.
Passive personality as the basis of jurisdiction is controversial because it allows a State to extend its jurisdiction to any acts afflicting its nationals and therefore suggests to other States that their legal systems are somehow insufficient or deficient, also allowing the asserting State to impose its laws on non-nationals. It is no surprise that such treaties were later denounced as ‘unequal’ by Japan (1899), Turkey (1923 Treaty of Lausanne), and China (1943).
Be that as it may, even without such a treaty in place, the principle had been upheld with strong imperialist undertones, most prominently in the Cutting case of 1886 (see JB Moore, Digest of International Law (USGPO, 1906), vol II, 228). In that case, Mr Cutting, a US citizen, was imprisoned and convicted in Mexico on charges of libel against Mexican nationals; his allegedly libellous statements had been published in a US-based newspaper. Strong US resistance followed, including a statement by President Cleveland in his annual address to Congress in 1886 protesting the exercise by Mexico of a claim of jurisdiction ‘whereby any offence committed anywhere by a foreigner … of which a Mexican is the object, may, if the offender be found in Mexico, be there tried and punished in conformity with Mexican laws’; Mexico’s claim was regarded as ‘invasive of the jurisdiction of [the United States] and highly dangerous to [its] citizens in foreign lands’. The USA considered that the burden lay upon Mexico to prove its entitlement to exercise passive personality jurisdiction over Mr Cutting. The resolution of that dispute was inconclusive, as charges were withdrawn by the injured party.
Unequal treaties are formally extinct, but the fact of their existence serves to illuminate how international law can be used to enforce inequality; even today, certain investment treaties have been subject to similar criticism: see Chapter 20, Section 20.4.4, for further detail. See further M Craven, ‘What Happened to Unequal Treaties? The Continuities of Informal Empire’ (2005) 74 Nordic JIL 335; and N Tzouvala, Capitalism as Civilisation (CUP, 2020), ch 2 (who examines the racialized ‘logic of biology’ underpinning some of these treaties).
8.2.6 The universality principle
With the notable exception of piracy, the universality principle suggests that the gravity of a particular offence is so abhorrent that each and every State has a legitimate interest in its repression,63 irrespective of the nationality of the individuals, the nationality of the victims, or the place of commission of the crime.64 As we shall observe, most relevant practice here has been in respect of criminal complaints, and not about civil cases.
126.96.36.199 Piracy and crimes outside the jurisdiction of all States
The paradigmatic crime for which universal jurisdiction was first established is that of piracy. Pirates operate on the high seas, outside the territorial jurisdiction of a State, and pirate groups are more often than not composed of the nationals of more than one State. Pirates came to be regarded as hostis humani generis (‘enemy of all mankind’) under customary international law, a principle that was confirmed in the 1982 UNCLOS. The essence of piracy is that it be committed for private ends and not, for example, for political reasons. The latter type of acts would be regarded as hijacking or takeover.65 Under that principle, each and every State may seize a pirate ship or aircraft on the high seas or on any other place outside the jurisdiction of a State, and its courts would have jurisdiction to impose penalties on convicted pirates. There have been substantial international p. 226↵initiatives to control piracy,66 and the Security Council has authorized States to enter the territorial waters of Somalia in pursuit of pirates.67
The justification for universal jurisdiction claims over pirates is not so much that piracy is inherently heinous, but due to the pragmatic fact that pirates operate on the high seas, beyond the jurisdiction of any State. In this sense, it would be no different than universal jurisdiction in outer space or in Antarctica, zones which are also not under the jurisdiction of any State. Such claims must be distinguished, therefore, from the more recent trend of invoking the universality principle in relation to grave violations of human rights, such as genocide, slavery, crimes against humanity, war crimes, and torture. Many of these have been made subject to the jurisdiction of States, and now form a distinct category of international crimes potentially subject to the universality principle, to which we now turn.
188.8.131.52 Jurisdiction over international crimes
184.108.40.206.1 Crimes against peace/war crimes
Following the end of World War II, the International Military Tribunal in Nuremberg was the first international tribunal to be constituted with jurisdiction over individuals accused of committing crimes against peace, violations of the law and customs of war, and crimes against humanity.68 Subsequently, universal jurisdiction was embedded in the four Geneva Conventions so that domestic courts would be competent to try individuals for grave breaches, including wilful killing, torture or inhuman treatment, unlawful deportation of protected persons, and the taking of hostages.69 All of these were to apply in the context of international armed conflicts.
220.127.116.11.2 Crimes against humanity
Crimes against humanity are a slightly different matter; they differ from war crimes in that they may be committed either within or outside the context of international armed conflicts. In practice, therefore, crimes against humanity are associated with the p. 227↵conditions retained in the Rome Statute of the ICC, being ‘widespread, systematic and directed against a civilian population’.70 There is limited practice of domestic courts asserting universal jurisdiction over crimes against humanity. However, in 2019 the ILC published the Draft Articles on Prevention and Punishment of Crimes Against Humanity, Article 2 of which adopts (with minor modifications) the same definition of crimes against humanity as in the Rome Statute, and Article 6 of which would oblige States parties to enact legislation to ensure that crimes against humanity are offences under domestic criminal law.71 At the time this book went to press, the General Assembly was actively discussing the Draft Articles and the potential to transform them into a binding convention.
Turning now to allegations of genocide, though these have invariably occurred in the context of armed conflicts (eg during World War II and, more recently, in Bosnia, Croatia, Rwanda, Kosovo, and the Democratic Republic of the Congo), there is no formal requirement for an armed conflict to exist. Article 1 of the Genocide Convention states plainly that contracting parties must ‘confirm that genocide, whether committed in time of peace or time of war, is a crime under international law which they undertake to prevent and to punish’.
Finally, Article 5, paragraph 2, of the Convention against Torture (CAT)72 obliges States to go beyond establishing jurisdiction over offences committed on their territory, by their nationals, or against their nationals, and to establish jurisdiction over any alleged offender who is present in their territory, unless the alleged offender is extradited.73 Several States have enacted legislation going further than the CAT requirement, claiming that certain particularly heinous crimes are subject to universal jurisdiction, such as torture, genocide, or systematic rape, with Belgium a prominent example. It was Belgium’s universal jurisdiction legislation with respect to war crimes that led to the Arrest Warrant case between it and the Democratic Republic of the Congo, where Belgium issued an arrest warrant against Congolese Foreign Minister Abdoulaye Yerodia Ndombasi, charging him with inciting massacres of Tutsi civilians.74
Universal jurisdiction is not uncontroversial. In Belgium, after complaints were filed against Israeli Prime Minister Sharon concerning incidents occurring in Lebanon in 198275 and against certain leading US figures for bombing incidents occurring in Iraq in the early 1990s,76 Israel and the USA protested in particular, US officials even threatening to withhold further funding for a new NATO headquarters building if the law remained as it was.77 Bowing to such pressure, in 2003 Belgium modified its legislation on universal jurisdiction78 to require at least a minimal link to Belgium in respect of the crime concerned; in essence, the jurisdictional basis to something akin to passive personality (see earlier, Section 8.2.5).79 It was passive personality jurisdiction which was at issue in the Obligation to Prosecute or Extradite dispute: whilst Mr Habré (former President of Chad) was located in Senegal, Belgium brought a claim against Senegal claiming that Senegal was under an obligation to extradite or to prosecute him (aut dedere aut judicare). Senegal asserted, and Belgium accepted, that in enacting implementing legislation, Senegal had complied with its obligations under Article 5, paragraph 2 of the Torture Convention. As such, the Court did not have jurisdiction to examine whether there had been any breach of that provision.80
Most other States that claim universal jurisdiction (eg Spain, the UK, the Netherlands, Canada) also require such a minimal link, though Argentina allows the prosecution of crimes committed outside Argentina’s jurisdiction ‘against public international law’.81 The Argentine courts have attracted international attention in recent years, with a prominent 2019 case filed in relation to crimes against the Rohingya Muslims.82 On 16 October 2021, Rodolfo Martín Villa, Spanish interior minister from 1976 to 1979, was indicted by Argentine Judge Maria Servini de Cubría on four counts of aggravated p. 229↵homicide committed during the Franco dictatorship; crucially, these acts would have been covered in Spain by a 1977 amnesty law in Spain.83
8.3 Treaty-based extensions of extraterritorial jurisdiction
Though extraterritorial jurisdiction on grounds other than nationality remains contested, States routinely resort to multilateral treaties to coordinate their efforts in repressing certain types of offences. In a time where transnational crime is at unprecedented levels, facilitated by developments in technology and a period of heightened global economic integration, such treaties are of particular salience for the assertion of jurisdiction.
Typically, these treaties accomplish certain objectives. First, as a general matter, such treaties will provide a harmonized definition of the offence or range of offences in question. They will then stipulate that States parties are under an obligation to enact certain penalties in their domestic law for offences committed, and to assert their jurisdiction over the said offences in certain circumstances. Crucially, as discussed earlier, such a treaty will often include a provision embedding the principle aut dedere aut judicare, which requires States parties either to extradite, upon the request of another State party, any alleged offender found in their territory, regardless of his or her nationality or of the place where the offence was committed, or to submit the case to their competent authorities for the purpose of prosecution.
Crucially, it needs to be said that aut dedere aut judicare is not customary international law;84 when applied by the ICJ in Obligation to Prosecute or Extradite, this was only pursuant to the treaty obligation of aut dedere aut judicare enshrined in Article 7 of the Torture Convention, and its scope restricted thereunder to criminal complaints.85 In Naït-Liman v Switzerland, the ECtHR considered—and dismissed—the claim that Switzerland was under an obligation to recognize universal civil jurisdiction for torture claims, whether by virtue of customary law or pursuant to Article 14 of the Torture Convention.86 In Hussein v Belgium, the ECtHR reaffirmed this statement, concluding that neither customary law nor the ECHR required Belgium to exercise universal civil jurisdiction in respect of Jordanian–Palestinian refugees forcibly deported from Kuwait during the 1990–1 Gulf War.87
As discussed in the various sections on the jurisdictional bases available, States have adopted treaties providing for extraterritorial jurisdiction in many fields, including p. 230↵torture (passive personality jurisdiction, or universal jurisdiction when the offender is present on a State party’s territory),88 the taking of hostages (passive personality jurisdiction, or universal jurisdiction when the offender is present on a State party’s territory),89 the protection of certain United Nations personnel (universal jurisdiction when the offender is present on a State party’s territory),90 the hijacking of aircraft (passive personality jurisdiction in the case of the Tokyo Convention),91 and universal jurisdiction when the offender is present on a State party’s territory (in the case of the Montreal Convention and the Hague Convention92). In effect, these multilateral treaties achieve a sort of universal jurisdiction inter partes, a specialized regime between States parties through which they cooperate, through the enactment of domestic law proscribing certain offences, in exercising jurisdiction over the said offences, and in establishing mechanisms for information-sharing, extradition, or prosecution, so as to minimize the possibility of impunity for the commission of such an offence.93
The crime of terrorism may in time emerge as a crime of international jurisdiction, as is evidenced by recurring efforts to arrive at an international definition of the crime.94 Many treaties allow for extraterritorial jurisdiction in relation to specific acts closely connected with terrorism, such as the hijacking of aircraft or the taking of hostages. What is more, as mentioned earlier, passive personality jurisdiction may be exercised by States parties against anyone accused of financing terrorism.95 Without a basis in a treaty, however, there seems to be insufficient customary practice to justify the assertion of jurisdiction over such acts.p. 231↵
Contemporary Developments The US claim of extraterritorial jurisdiction in respect of terrorist offences
The crucial issue arises as to whether, in the absence of a relevant treaty, extraterritorial jurisdiction may be exercised against those accused of terrorism as such, even if they are not its nationals. There is limited case law and State practice in this regard, primarily from the USA, where domestic courts have in the post-9/11 period asserted jurisdiction over terrorist plots planned by non-nationals located overseas, and where overseas locations were affected.
The classic statement is found in Flatow v Iran, 999 F.Supp 1, 14 (1998), where the US District Court concluded that ‘international terrorism is subject to universal jurisdiction’. Though the USA has enacted a 1986 Omnibus Diplomatic Security and Terrorist Act which asserts passive personality jurisdiction over physical attacks on US nationals outside its territory, US courts have applied a rather elastic test with respect to the required jurisdictional nexus with the USA. In US v Yousef, 327 F.3d 56 (2d Cir. 2003), a non-US national who attacked an aeroplane registered in the Philippines as a ‘trial run’ for an attack on the USA was prosecuted. In US v Al-Kassar, 582 F.Supp 2d 488 (2008), non-US nationals operating in Spain, Lebanon, and Colombia were convicted, inter alia, of arms trafficking and ‘material support for terrorism’. US jurisdiction was also claimed on the basis that the weapons being brokered by the defendant could be used against US nationals in Colombia. In US v Warsame, 537 F.Supp 2d 1005 (2008), a Canadian national was charged with ‘material support for terrorism’ for medical training and the wiring of a loan, both to purported Al Qaeda operatives located in Afghanistan; the prosecution did not invoke the likelihood of causing imminent harm to US nationals or other US interests.
The key point for reflection is to consider whether this judicial practice in the USA is indicative of a new, permissive customary norm which allows for the exercise of extraterritorial jurisdiction over the nationals of other States who are suspected of terrorist activity abroad. The fact that a link to the State is not asserted at all suggests that it is closer to universal jurisdiction than to any protective principle.
8.4 Enduring challenges for the exercise of jurisdiction
The long-standing principles through which jurisdiction is exercised in international law are the product of centuries of iterative development, where States’ interests have collided, at times aggressively, before gradually being balanced over time with the overriding principle of international comity. Two persistent problems stand out in this respect, and are exacerbated by technological and social advances: the challenge of identifying the location of a given act, and how to resolve conflicts between States that are claiming concurrent jurisdiction.
8.4.1 Challenges with identifying the location of acts
Territorial jurisdiction, in its essence, presumes that the location of an act can be clearly discerned; however, in practice this is far more complex. A contemporary example might be an online attack by private hackers located in one State, but on the financial cyber-infrastructure of another State. Does the State where the hackers are situated have territorial jurisdiction? Or can the affected State claim protective jurisdiction or ‘effects’ jurisdiction? What if the hackers first co-opted the network infrastructure or a router located in a third State? What if the hackers were located across various States, and directed by a person located in yet another State? The ‘location’ of a cybercrime is thus very much a live issue, and poses important international law questions as to jurisdiction.96
p. 232↵Domestic courts have sought to grapple with such issues by reference to how the offence may have been defined in domestic law. In the UK, a distinction between offences of ‘conduct’ and ‘result’ has emerged in case law.97 However, the pertinent question remains whether an assertion of jurisdiction asserted, even over a defined offence, is in conformity with international law. Yet international law does not provide clear rules for determining where an act has occurred, which suggests that a fixation with geography is not appropriate in relation to complex acts involving a multitude of actors. In this respect, all that can be said is that the standard forces of international law formation must continue to run their course, either with a clear treaty framework being established, or customary law to emerge through State practice. The interaction between States remains key: a reasonable claim may be met with acquiescence by other States,98 whereas an overreaching or fatuous claim may be met by protests or even blocking legislation, as occurred with some States in response to the more assertive claims of effects-based jurisdiction by the USA.99
8.4.2 Resolving conflicts of jurisdiction between States
Discerning the location of a composite or complex act is inherently difficult, and raises the possibility of overlapping jurisdiction, or situations in which two or more States can validly assert jurisdiction over specific conduct. There are surprisingly few treaties which provide for a solution to overlapping jurisdictional claims, though a notable exception is Article 30 of the Arab Convention on Combating Information Technology Offences, which specifies that in the case of multiple jurisdictional claims, priority is accorded to a State ‘whose security or interests were disrupted by the offence’; then to the State in whose territory the offence was committed; and then by the State of nationality of the accused.100
In the absence of any prior agreement, the question is no longer whether the assertion of jurisdiction conforms with international law but, rather, as to how conflicting, concurrent claims are resolved, and whether guidance exists as to which claim ought to be given priority. For example, the USA and Russia clashed over the prosecution of high-profile cybercriminal Alexei Burkov, who was arrested in Israel in 2015 upon a US extradition request based on hacking-related charges (including fraud, identity p. 233↵theft, and money laundering). Russian judicial appeals to prevent extradition to the USA were rejected by the Israeli Supreme Court, which held that the choice between competing extradition requests remained a decision for the relevant government minister, albeit taking appropriate considerations into account.101 In a surprising development, and despite the lack of any extradition treaty, in September 2021 the USA released Burkov from prison into Russian custody.
Such situations are compounded in cases where the legislation of two States might be in conflict. For example, if State A requires the performance of an act by its nationals, even extraterritorially, but that same act is proscribed under the laws of State B. The ‘foreign sovereign compulsion’ defence has emerged precisely for this reason, to excuse, for example, a failure to produce documents in pursuance of an order of a court when such disclosure would be prohibited under the criminal law of the State where the said documents are located.102 Laws might also be enacted precisely to create conflicts with the laws of another State perceived as overreaching. This was the case when the European Community enacted regulations protecting against the effects of the US Helms–Burton and d’Amato Acts, which sought to assert extraterritorial jurisdiction in relation to Cuba, Iran, and Libya.103
Finally, multilateral treaties harmonizing obligations can serve to create parallel obligations in all States parties, but only occasionally create specific consultative mechanisms that can be used to eliminate possible conflicts. A notable exception is the EC–US antitrust cooperation procedure established in 1996, designed to eliminate extraterritorial applications of laws which cause difficulty for the other party.104
International law contains a diverse, but unsystematized, body of principles and practices governing prescriptive and enforcement jurisdiction. Like with many fields of international law, jurisdictional claims remain characterized by the dynamism of State practice and the balancing of priorities such as effective enforcement and the sovereignty of States. Ultimately, jurisdictional claims cannot be resolved through the application of strict rules, given the likely overlap of perfectly permissible claims and the reality in p. 234↵today’s world that most States seek to exert extraterritorial jurisdiction to preserve their essential interests. But such interests must be balanced, and ought not to supersede entirely the exercise by another State of its sovereign right to regulate social relations within its territory. Finally, let us not lose sight of the fact that jurisdictional claims and their overlap represent ‘encounters’ between rival jurisdictions, going beyond the mere conflicts of States on the international plane, and the very resolution of such conflicts and claims poses wider questions for the development of international law.105
Take your learning further by testing yourself with the chapter specific discussion questions in the online resources.
A hugely influential reference on the topic of jurisdiction in international law.
A thorough study of extraterritorial jurisdiction during a period of rapid change in the late twentieth century, notably in relation to the seas and outer space.
An imaginative study of the inevitable transboundary issues arising regarding jurisdictional claims relating to environmental protection.
Separated by two decades, these thorough surveys address the various modes of jurisdiction and their evolution through the twentieth century.
Inspired by private international law, a redescription of jurisdiction as a matter of duties and obligations rather than purely a matter of right.
A concise distillation of universal jurisdiction, which situates it carefully within the international legal framework.
An imaginative, critical re-interpretation of jurisdiction as a ‘law of encounter’, of ethical and political significance.
Published at a time of heightened controversy, this comprehensive study gathered extensive State practice and explained universal jurisdiction in relation to other exercises of jurisdiction.
Presents a general theory of prescriptive jurisdiction extending across many emerging areas, including cyberspace, tax law, antitrust legislation, and sanction laws.
A creative application of jurisdictional claims within the emerging field of internet regulation.
An engaging review of the possible conflicts of jurisdiction which arise in practice between national and international courts.
Careful and systematic study of the interrelation of jurisdictional claims with other fields of international law, using Somalia as a case study.
1 Some classic English-language articles on the theme include FA Mann, ‘The Doctrine of Jurisdiction in International Law’ (1964) 111 Recueil des Cours 1; FA Mann, ‘The Doctrine of Jurisdiction in International Law Revisited after Twenty Years’ (1984) 186 Recueil des Cours 9; M Akehurst, ‘Jurisdiction in International Law’ (1972–3) 46 BYBIL 145; DW Bowett, ‘Jurisdiction: Changing Problems of Authority over Activities and Resources’ (1982) 53 BYBIL 1. See also the influential Harvard study on jurisdiction, which sought to codify the international rules of jurisdiction in the 1920s and 1930s: Harvard Research on International Law, ‘Jurisdiction with Respect to Crime’ (1935) 29 AJIL Supp 1 435, 445.
2 Nationality Decrees in Tunis and Morocco, Advisory Opinion, 1923, PCIJ, Ser B, No 4, p 7, 23–4.
3 Nottebohm (Liechtenstein v Guatemala), Second Phase, ICJ Reports 1955, p 4, 20–1. See also Anglo-Norwegian Fisheries (United Kingdom v Norway), Judgment, ICJ Reports 1951, p 116, 132, where the ICJ distinguished the delimitation of territorial waters (falling within domestic jurisdiction) from the validity of the determination with regard to other States (within the purview of international law).
5 See Committee of Ministers Recommendation R (97) 11: Amended Model Plan for the Classification of Documents concerning State Practice in the Field of Public International Law (12 June 1997) Part Eight, Sec II.A.
6 However, within its own territory, a municipal court may refuse to recognize or to enforce the judgment of a court of another State; eg on the grounds of corruption or manifest bias.
7 Akehurst (n 1) 179–80.
8 A State which abuses its legislative supremacy may also be found in breach of an international legal obligation: see Mann, ‘Doctrine of Jurisdiction’ (1984) (n 1) 36 et seq.
9 See Council of Europe, Amended Model Plan (n 5) Part Eight, Sec II.C.
10 That said, States routinely give permission for the exercise of enforcement jurisdiction in their territory: see eg the 2005 amendments to the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (adopted 10 March 1988, entered into force 1 March 1992), 1678 UNTS 221; or the ‘ship rider’ agreements between the USA with a number of Caribbean States, under which US navy vessels may enter the territorial seas of the other party to pursue vessels suspected of trafficking drugs.
12 In 2020, Europol, ‘800 Criminals Arrested in Biggest Ever Law Enforcement Operation against Encrypted Communication’, Europol Press Release of 8 June 2021.
13 Jadhav (India v Pakistan), Judgment, ICJ Reports 2019, p 418, para 21.
14 See Council of Europe, Amended Model Plan (n 5) Part Eight, Sec II.B.
15 The term ‘jurisdiction’ is also used in relation to the legal basis for an international tribunal to exercise its competence with respect to a given dispute. The jurisdiction of States and the jurisdiction of tribunals are sufficiently distinct concepts that they are, as a matter of tradition and legal logic, addressed separately. The jurisdiction of international tribunals will not be further considered in this chapter.
16 Kiobel v Royal Dutch Petroleum, 133 S Ct 1659 (2013), in relation to the Alien Tort Statute, 28 USC § 1350 (USA). See also Daimler AG v Bauman 134 S Ct 746 (2014), more generally limiting extraterritorial jurisdiction in the USA against foreign corporations that are incorporated in the USA or with their principal place of business there; and Jesner v Arab Bank Plc 138 S Ct 1386 (2018).
17 A principle recognized as early as The Schooner Exchange v McFaddon (1812) 7 Cranch 116, 136 (Marshall CJ: ‘[t]he jurisdiction of a nation within its own territory is necessarily exclusive and absolute’).
18 See Chapter 18, for further discussion about State authority over different maritime areas, such as the contiguous zone and the EEZ; though these are not the territory of a State, a coastal State may be permitted to exercise limited jurisdiction.
19 In practice, States leave the prescription of rules applicable on board ships or aircraft to the State of registry (the ‘flag State’), and assert jurisdiction only in relation to specified matters, such as customs and excise laws, environmental protection, or matters of national security.
20 Case of the SS ‘Lotus’ (France v Turkey), Judgment, 1927, PCIJ, Ser A, No 10, p 5, 24.
21 See Protocol concerning Frontier Controls and Policing, Co-operation in Criminal Justice, Public Safety and Mutual Assistance relating to the Channel Fixed Link (France–United Kingdom) (signed 25 November 1991, entered into force 2 August 1993), 1747 UNTS 109.
22 See also ibid, Art 38(2): within the Channel Tunnel itself, both States have jurisdiction in situations where there exists uncertainty as to where the offence has been committed or when the offence may be related to an offence committed on the territory of one or the other State. In such cases, the State which first detains a suspected individual has priority in exercising jurisdiction.
23 See Agreement on a Fixed Link over the Sound (Denmark–Sweden) (1991), 1739 UNTS 356.
24 Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan (adopted 26 October 1994, entered into force 10 November 1994), 2042 UNTS 351, Annex I(b) and (c), relating to the Naharayim/Baqura Area and the Zofar/Al-Ghamr Area.
25 US v Aluminum Company of America (Alcoa), 148 F.2d 416 (1945). The Alcoa test has evolved over the decades. In Timberlane Lumber Co v Bank of America, 549 F.2d 597 (1976), 66 ILR 270; and Mannington Mills v Congoleum Corporation, 595 F.2d 1287 (1979), 66 ILR 487, US courts began to add a criterion of ‘reasonableness’ to the exercise of effects-based jurisdiction, though this was later rejected by the US Supreme Court in Hartford Fire Insurance Co v California, 113 S Ct 2891 (1993), which concluded that once US law was declared applicable, it could not be qualified or set aside for reasons of international comity.
26 Cuban Liberty and Democratic Solidarity (Libertad) Act (‘Helms–Burton Act’), 110 Stat 785 (USA). The claim of jurisdiction over ‘trafficking in confiscated property’ was condemned by the Inter-American Juridical Committee of the OAS as not in conformity with international law on the exercise of jurisdiction. See OAS Doc CJI/SO/II/doc.7/96 rev 5, para 9 (25 August 1996).
27 Case C-413/14, Intel v European Commission (6 September 2017), para 49 (emphasis added). The conditions of ‘foreseeable, immediate and substantial effects’ had already been elucidated, in a slightly different context, in Case T-102/96, Gencor v European Commission  ECR II-753. See further, on this point, C Ryngaert, Jurisdiction in International Law (2nd edn, OUP, 2015), 82–4.
28 Ben El Mahi and ors v Denmark App No 5853/06 (ECtHR, 11 December 2006).
29 See Strafgesetzbuch (German Criminal Code), s 7(2)(1); Loi du 17 avril 1878 concernant le titre préliminaire du Code de procedure pénale (Belgian Preliminary Title to the Code of Criminal Procedure), art 11; Wetboek van Strafrecht (Dutch Criminal Code), Art 4(11); and Egyptian Penal Code, Art 3.
30 Eg the UK prohibits murder and bigamy (see eg Official Secrets Acts 1911, s 10; 1970, s 8; and 1989, s 15); certain categories of sexual offences (see Sexual Offences (Conspiracy and Incitement) Act 1996; the Sex Offenders Act 1997; and the Sexual Offences Act 2003, s 72); and football hooliganism (see Football Spectators Act 1988, s 22). For further reading, see P Arnell, ‘The Case for Nationality-Based Jurisdiction’ (2001) 50 ICLQ 955.
31 See the US Foreign Corrupt Practices Act of 1977, Pub L No 95-213, 91 Stat 1494, which extends to corporations a certain degree of connection to the USA. In addition, some States, such as the UK, extend the extraterritorial application of their law to non-national residents and others with a ‘close connection’ to the UK: see the Bribery Act 2010, s 12; and Sexual Offences Act 2003, ss 9, 72.
32 See eg the Anti-Terrorism Crime and Security Act 2001, Pt 12; and the Crime (International Co-operation) Act 2003, amending ss 63B and 63C of the Terrorism Act 2000.
33 Council of Europe Convention on Cybercrime (signed 23 September 2001, entered into force 1 July 2004), ETS No 15, Art 22(1)(d).
34 Council of Europe Convention on Protection of Children against Sexual Exploitation and Sexual Abuse (‘Lanzarote Convention’) (adopted 25 October 2007, entered into force 1 July 2010), 2680 UNTS 249, Art 25 (1)(e).
35 Nottebohm (n 3) 23. Several instruments provide that persons have a ‘right to a nationality’: see eg the Universal Declaration of Human Rights, UNGA Res 217(III) (10 December 1948), Art 15; the International Covenant on Civil and Political Rights (signed 16 December 1966, entered into force 23 March 1976), 993 UNTS 3, Art 24; and the Convention on the Rights of the Child (signed 20 November 1989, entered into force 2 September 1990), 1577 UNTS 3, Art 7(1).
36 See Nationality Decrees in Tunis and Morocco, Advisory Opinion, 1923, PCIJ, Ser B, No 4, p 8, 24.
37 Hague Convention on the Conflict of Nationality Laws (signed 1930, entered into force 1937), 179 LNTS 89, Art 1.
38 This is the dominant mode of conferring nationality: see eg art 17 of the Spanish Codigo Civil (Civil Code); art 1 of the Swiss Nationality Law; s 25 of the Constitution of Nigeria; and art 2(1) of the Nationality Law of Vietnam.
39 Most countries granting unconditional nationality on the basis of jus soli are in North and South America, including Canada, the USA, Mexico, Brazil, and Argentina.
40 See eg the UK—British Nationality Act 1981, s 1 (birth or adoption), s 2 (descent); Germany—see Art 116(1) of the German Basic Law (descent), Art 4 of the Staatsangehörigkeitsgesetz (Nationality Law) 2001 (birth, under certain conditions); and Canada—Canadian Citizenship Act, s 3(a) (acquisition by birth or adoption), s 3(b) (acquisition by descent).
41 The UK Foreign and Commonwealth Office does not prohibit dual nationality, but requires that candidates hold British nationality when they stand.
42 See British Nationality Act 1981 and UK Representation of the People Act 1983, s 4(6).
43 New Zealand Electoral Act 1993, s 74(1).
44 Citizens of the European Union also enjoy legal protections under other provisions of EU law, most notably the Charter of Fundamental Rights of the European Union  OJ C326.
46 This distinction was noted in the context of diplomatic protection by the ICJ in Barcelona Traction, Light, and Power Company Ltd (Belgium v Spain), Second Phase, Judgment, ICJ Reports 1970, p 3.
47 See eg United Nations Convention on the Law of the Sea (signed 10 December 1982, entered into force 16 November 1994), 1833 UNTS 3, Art 91; Convention on the Territorial Sea and the Contiguous Zone (adopted 29 April 1958, entered into force 10 September 1964), 516 UNTS 205, Art 5. It is true that the ‘flag of convenience’ practice, of registering ships with certain States with which they have no effective link, remains problematic: see Chapter 18, Section 18.104.22.168.
48 See Chicago Convention on International Civil Aviation (adopted 7 December 1944, entered into force 4 April 1947), 15 UNTS 102, Art 17.
49 Akehurst (n 1) 157–9.
50 See eg the Lux affair in France (1911) (see Clunet  140), the Urios case in Spain,  1 RecDal 238; and US v Zehe, 601 F.Supp 196 (D Mass 1985).
51 See eg Crime (International Co-operation) Act 2003, Pt 2, s 63D; US v Yousef, 327 F.3d 56 (2d Cir 2003); and Italian South Tyrol Terrorism Case (No 2) 71 ILR 242.
52 In the USA, see United States v Brown, 549 F.2d 954 (4th Cir 1977), relying on the principle established in Strassheim v Daily, 221 US 280 (1911); and the 1986 Maritime Drug Law Enforcement Act.
53 In the UK, see Crime (International Co-operation) Act 2003, Pt 2, s 63C, which confirms that ss 1–5 of the Forgery and Counterfeiting Act 1981 apply extraterritorially.
54 In the UK, see Joyce v Director of Public Prosecutions  AC 347, which is particularly interesting as it involved an American-born person who fraudulently acquired a British passport. Joyce had been accused of treason through the dissemination of pro-Nazi propaganda during World War II; and because he had benefited from the protection afforded to British passport-holders, the UK courts could exercise jurisdiction. He was thus deemed to have breached a duty of allegiance to the British Crown.
55 See eg the Hague Convention for the Suppression of Unlawful Seizure of Aircraft (signed 16 December 1970, entered into force 14 October 1971), 860 UNTS 105.
56 See eg US v Pizzarusso, 388 F.2d 8 (1968).
57 See eg Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (signed 28 December 1973, entered into force 20 February 1977), 1035 UNTS 167, Art 3.
58 See International Convention against the Taking of Hostages (adopted 18 December 1979, entered into force 3 June 1983), 1316 UNTS 205, Art 9.
59 Convention on Offences and Certain Other Acts Committed on Board Aircraft (Tokyo Convention) (adopted 14 September 1963, entered into force 4 December 1969), 704 UNTS 219, Art 4(b).
60 International Convention for the Suppression of the Financing of Terrorism (opened for signature 10 January 2000, entered into force 10 April 2002) 2179 UNTS 197 (ICSFT), Art 7(2)(a).
61 See the Dutch Criminal Code (n 29) Art 4(14), which extends jurisdiction over computer sabotage or data damage committed against a Dutch national, provided that the conduct also falls under Art 2 of the ICSFT (n 60).
62 USA, Antiterrorism and Effective Death Penalty Act, 28 USC §2254 (1996).
63 This is the classical understanding of universal jurisdiction: see US v Yunis, 681 F.Supp 896 (1988); and Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment, ICJ Reports 2002, p 3, 19.
64 A useful guide may be found in the Princeton Principles on Universal Jurisdiction (2001), purporting to codify existing practice and provide guidance in relation to the exercise of universal jurisdiction. See also R O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’ (2004) 2 JICJ 735.
65 See UNCLOS (n 47) Art 101, which defines piracy as ‘[a]ny illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or private aircraft’ (emphasis added), against any ship, aircraft, persons or property, so long as such acts are committed on the high seas or outside the jurisdiction of any State.
66 See eg the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (2005), NATO Operation ‘Ocean Shield’ (2009), and the European Union’s Operation Atalanta (2008).
67 UNSC Res 1816 (2 June 2008).
68 Charter of the International Military Tribunal (1945), Art 6; subsequently confirmed by UNGA Res 95(I) (11 December 1946). See also Arts 227–30 of the Treaty of Versailles (signed 28 June 1919, entered into force 10 January 1920), 225 CTS 188, which provided for jurisdiction over individuals for these crimes, including the deposed Kaiser Wilhelm II.
69 See Art 49 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950), 75 UNTS 31 (Geneva Convention I); Art 50 of the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85 (Geneva Convention II); Art 129 of the Geneva Convention Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135 (Geneva Convention III); and Art 146 of the Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 (Geneva Convention IV). In the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (signed 8 June 1977, entered into force 7 December 1978), 1125 UNTS 3, the list was extended to include, inter alia, attacking civilian populations.
70 Art 7, Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002), 2187 UNTS 3. See also Art 5, Statute of the International Criminal Tribunal for the former Yugoslavia (1993) 32 ILM 1159; and Art 3, Statute of the International Criminal Tribunal for Rwanda (1994) 33 ILM 1598.
71 See (2019) ILC Ybk vol II, pt 2, UN Doc A/74/10 (2019).
72 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987), 1465 UNTS 85.
73 In Prosecutor v Furundžija (Appeals Chamber Judgment), Case No IT-95-17/1A, Judgment of 21 July 2000 (2002) ILR 121, paras 154–6, the ICTY concluded, without mentioning the Torture Convention, that because the prohibition of torture was a norm of jus cogens, this would be sufficient to found domestic jurisdiction as it was rooted ‘in the inherently universal character of the crime’.
75 See ‘US Reaction to Belgian Universal Jurisdiction Law’ (2003) 97 AJIL 984, 985; and ‘Complaint lodged by Survivors against Israeli Prime Minister Ariel Sharon, Director General of the Defence Ministry Amos Yaron, and other Israelis and Lebanese responsible for the Sabra and Shatila Massacre, filed in the Brussels Criminal Court (18 June 2001)’ (2005) 12 Palestine YBIL 219.
76 Ibid, 986–7. Other high-profile individuals included former and serving heads of State: Pinochet (Chile); Kabila (DR Congo); Kagame (Rwanda); Habré (Chad); Hussein (Iraq); Arafat (Palestine); and Castro (Cuba).
77 See eg statement by then-US Secretary of Defence Rumsfeld, in I Black and E MacAskill, ‘US Threatens Nato Boycott over Belgium War Crimes Law’ (The Guardian, 13 June 2003) <http://www.guardian.co.uk/world/2003/jun/13/nato.warcrimes>; see also the US Department of Defense News Transcript, ‘Secretary of Defense Rumsfeld at NATO Headquarters’ (US Department of Defense, 12 June 2003) <http://archive.defense.gov/Transcripts/Transcript.aspx?TranscriptID=2742>.
78 See Loi relative aux violations graves du droit humanitaire (amendments of 5 August 2003), Moniteur belge No 2003-3125, p 40506, also found as Belgium’s Amendment to the Law of 15 June 1993 (as amended by the Laws of 10 February 1999 and 23 April 2003), Moniteur belge No 2003-1786, p 24846, (2003) 42 ILM 1258.
79 See S Ratner, ‘Belgium’s War Crimes Statute. A Postmortem’ (2003) 97 AJIL 888; and L Reydams, ‘Belgium Reneges on Universality: The 5 August 2003 Act on Grave Breaches of International Humanitarian Law’ (2003) 1 JICJ 679.
80 Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment, ICJ Reports 2012, p 422, 442–3.
81 See Constitution of the Argentine Republic, art 118. Implementing legislation clarifies this provision as including crimes foreseen in the Rome Statute.
82 For a copy of the complaint filed in Argentina, see <https://burmacampaign.org.uk/media/Complaint-File.pdf>.
83 More detail on the Argentine legislation on universal jurisdiction can be found (in Spanish) in W Jurado, El principio de jurisdicción universal y la comunidad internacional (Jurisprudencia Rosarina, 2018).
84 As recognized in the provisional measures sought in the context of Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom), Provisional Measures, ICJ Reports 1992, p 3, 24 (Joint Declaration of Judges Evensen, Tarassov, Guillaume, and Aguilar Maudsley (translation)).
85 Obligation to Prosecute or Extradite (n 80) 434.
86 Naït-Liman v Switzerland (Grand Chamber) App No 51357/07 (ECtHR, 15 March 2018), para 198.
87 Hussein and ors v Belgium App No 45187/12 (ECtHR, 16 June 2021), para 65. Though the claimants had filed their case before Belgium tightened its universal jurisdiction legislation in 2003 (n 75), the ECtHR held that Belgium was entitled to limit such universal jurisdiction to require a minimal link with that State, and to terminate ongoing investigations after 2003.
88 See Torture Convention (n 72) Arts 5, 7. Regarding its application, see Obligation to Prosecute or Extradite (n 80); and Ex parte Pinochet (No 3)  AC 147; (2000) 119 ILR 135. The Ex parte Pinochet judgment is discussed at length in Chapter 9, Section 9.4.6 (‘Immunity for serious crimes under international law’).
89 Hostages Convention (n 58) Arts 5(1)(d) and 5(2).
90 See Convention on the Safety of United Nations and Associated Personnel (adopted 9 December 1994, entered into force 15 January 1999), 2051 UNTS 363, Art 14.
91 See Tokyo Convention (n 59) Art 4.
92 See Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (adopted 23 September 1971, entered into force 26 January 1973), 974 UNTS 177, Art 5(a); 1970 Hague Convention (n 55) Art 4. See also the various phases of Lockerbie (n 84): Provisional Measures, Orders of 14 April 1993, ICJ Reports 1992, p 3, 114; and Preliminary Objections, Judgment, ICJ Reports 1998, p 9, 115; and US v Yunis (No 2) 681 F.Supp 896, 900–1 (1988); 82 ILR 344.
93 R O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’ (2004) 2 JICJ 735.
94 See Chapter 17, Section 17.2.4, for a discussion of the Special Tribunal for Lebanon in 2005, which prosecutes individuals in connection with the 2005 assassination of Lebanese Prime Minister Hariri.
95 ICSFT (n 60) at 7(2)(a).
96 See M Schmitt (ed), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (CUP, 2017), 51–5.
97 See eg DPP v Doot  AC 807;  1 All ER 940 (HL); DPP v Stonehouse  AC 55;  2 All ER 909 (HL); Liangsiriprasert v Government of the United States of America  1 AC 225;  2 All ER 866 (PC).
98 Acquiescence by other States can serve to buttress a State’s claim to exercise jurisdiction: see US v Suerte, 291 F.3d 36 (2002).
99 States prohibited the production of documents or information to the courts or authorities of foreign states. See: UK Protection of Trading Interests Act 1980; Limitation of Danish Shipowners’ Freedom to Give Information to Authorities of Foreign Countries 1967; and the Law Prohibiting a Shipowner in Certain Cases to Produce Documents 1968 (Finland). For further reading, see AV Lowe, ‘Public International Law and the Conflict of Laws’ (1984) 33 ICLQ 575 and AV Lowe, ‘Blocking Extraterritorial Jurisdiction: The British Protection of Trading Interests Act 1980’ (1981) 75 AJIL 257.
100 See Arab Convention on Combating Information Technology Offences (signed 21 December 2010, entered into force February 2014), Art 30.
101 See Burkov v Minister of Justice (Supreme Court of Israel), HCJ 7272/19 (10 November 2019). The Israeli court partially relied on the European Convention on Extradition (signed 13 December 1957, entered into force 18 April 1960), ETS No 24, Art 17, which requires States parties, when considering concurrent requests for extradition, to have regard to all the circumstances, including the dates of the requests, the nationality of the person claimed, and the relative seriousness and place of commission of the offences, but without priority for any particular element.
102 See Société Internationale v Rogers, 357 US 197 (1958).
103 See Council Regulation (EC) 2271/96,  OJ L309, discussed in AV Lowe, ‘US Extraterritorial Jurisdiction: the Helms-Burton and D’Amato Acts’ (1997) 46 ICLQ 378.
104 See EC–US Agreement on the Application of Positive Comity Principles in the Enforcement of their Competition Laws  OJ L173. See also the United Nations (Palermo) Convention on Transnational Organized Crime (adopted 15 November 2000, entered into force 29 September 2003), 2237 UNTS 319, Art 15(5), where States parties are obliged to consult other parties which are investigating or prosecuting the same conduct.
105 S Pahuja, ‘Laws of Encounter: A Jurisdictional Account of International Law’ (2013) 1 LRIL 63.