Concept of Jurisdiction in International Law

Jurisdiction is an aspect of a State’s sovereignty, as the right to prescribe and enforce laws is an essential component of statehood. In the classic Westphalian understanding, this right has been limited to a State’s territory, a limitation that at the same time ensures that no State intervenes in another State’s affairs. This idea is no longer strictly applied, if it ever was. Exceptions that allow for limited extraterritorial jurisdiction have been carved out, and, moreover, the territoriality principle has been construed rather liberally. To be true, some States employ a rather strict presumption that the legislature does not normally intend to apply its laws extraterritorially, but such a presumption does not limit the discretion of the legislature to do just that if it so desires.

The overlapping assertions that result from multiple States’ invocation of permissive principles of jurisdiction may almost unavoidably result in international friction. This friction may be mitigated by a ‘rule of reason’, which instructs courts and regulators to balance the interests and connections of the case with the different States involved. This rule of reason has obvious drawbacks, notably the impropriety of unelected courts weighing political and economic interests, and the pro-forum bias which they may exude. Still, when transnational networks of judges and regulators are established, the ensuing mutual understanding may positively impact on the application of the rule of reason. To infuse the rule of reason with a subsidiarity dimension: ‘bystander’ States should only exercise jurisdiction by default, i.e., where the State with the strongest nexus fails to assume its regulatory responsibilities to the detriment of the global interest.

Forms of jurisdiction: prescriptive, enforcement, adjudicatory, and functional

In the law of jurisdiction, most attention has been devoted to ‘prescriptive’ or ‘legislative’ jurisdiction. Such jurisdiction refers to the power of a State ‘to make its law applicable to the activities, relations, or status of persons, or the interests of persons in things, whether by legislation, by executive act or order, by administrative rule or regulation, or by determination by a court.’ Under the principle espoused by the Permanent Court of International Justice in the 1927 Lotus case, States are in principle free to exercise prescriptive jurisdiction over a given situation as they please, unless a prohibitive rule to the contrary could be identified. After Lotus, however, starting with the Harvard Research on International Law’s ‘Draft Convention on Jurisdiction with Respect to Crime’, it appears that the international community has embraced a more restrictive approach, by requiring that the asserting State rely on a permissive principle for the exercise of jurisdiction to be lawful. In this chapter, we will primarily focus on prescriptive jurisdiction, although in this Section the related forms of jurisdiction known as ‘enforcement’, ‘adjudicatory’, and ‘functional’ jurisdiction will be clarified.

The most uncontested permissive principle of prescriptive jurisdiction, in light of the Westphalian underpinnings of the law of jurisdiction, may appear to be the territoriality principle. Pursuant to this principle, acts carried out in a State’s territory fall within that State’s jurisdiction. On closer inspection, however, territoriality is not as simple in application as it might seem, as crimes or other acts over which a State may desire to exercise jurisdiction may straddle borders: the act may be initiated in one State (‘subjective territoriality’), but completed, or cause effects in another (‘objective territoriality’). The criminal law’s classic approach of dealing with transboundary crime is to allow the exercise of jurisdiction by a State as soon as one of the constitutive elements of the crime has taken place in its territory. This may seem to be straightforward enough, but where crime has become de-territorialized, such as in cyberspace, the use of the constitutive elements-based territoriality principle becomes particularly challenging, however. Territoriality has also been relied on outside the criminal law, notably in competition law, where objective territoriality came to be known as the ‘effects doctrine’. The requirements of the territoriality principle have also been considered to be met where foreign airlines were obliged to surrender emissions allowances in respect of non-territorial air mileage on the ground that the relevant aircraft departed from, or landed at a territorial airport. These liberal interpretations of territoriality in economic and environmental law have given rise to substantial international tension. Foreign nations adopted ‘blocking laws’ to prohibit their corporations from complying with discovery requests concerning alleged ‘extraterritorial’ anticompetitive acts, and threatened with legal action at the World Trade Organization. 

Apart from territoriality, the law of prescriptive jurisdiction features a number of principles that allow States to exercise jurisdiction on an extraterritorial basis, especially in the criminal law. These principles are usually premised on a link with the asserting State, notably nationality (the active and passive personality principles, which tie jurisdiction to the nationality of the perpetrator respectively the victim), or political independence (the protective or security principle). The universality principle, in contrast, premises jurisdiction on the nature (gravity) of the crime rather than on a particular nexus with a State, although in practice universal jurisdiction is often only exercised when the alleged perpetrator is present on the State’s territory. Where a State imposes its laws, possibly extraterritorially, logically it also wants to have these laws enforced. 

Enforcement jurisdiction then refers to a State’s jurisdiction ‘to enforce or compel compliance or to punish noncompliance with its laws or regulations, whether through the courts or by use of executive, administrative, police, or other non judicial action.’ The rules of enforcement jurisdiction are far stricter than the rules of prescriptive jurisdiction. As the Court held in the Lotus case, States are not entitled to enforce their laws outside their territory, ‘except by virtue of a permissive rule derived from international custom or from a convention,’ even where they have jurisdiction to prescribe their laws extraterritorially.

Accordingly, enforcement can only happen through territorial measures, e.g., by arresting a person who is voluntarily present on the territory, or by seizing property of the defendant located in the territory. Often, international cooperation will be required, e.g., to bring about the presence of the presumed perpetrator by means of extradition, or to have a domestic court order enforced against assets located abroad. Such cooperation is not always forthcoming, which explains why States have sometimes resorted to extraterritorial enforcement measures, arguably in violation of international law. It is not fully settled yet whether the prohibition of extraterritorial enforcement also applies to technological remote searches on computer networks located abroad.

 

The jurisdiction exercised by the judiciary is typically denoted by the terms ‘adjudicative’ or ‘adjudicatory’ jurisdiction, which refer to a State’s jurisdiction ‘to subject persons or things to the process of its courts or administrative tribunals, whether in civil or in criminal proceedings, whether or not the state is a party to the proceedings.’ Adjudicative jurisdiction thus refers to the jurisdiction of the courts rather than to the reach of a State’s laws, and pertains to the defendant’s anticipation of being hauled before the courts of the State in question. As prescriptive and adjudicative jurisdiction do not coincide, States may have legitimate prescriptive jurisdiction over a situation on the basis of a permissive principle, but lack adjudicative jurisdiction, e.g., because the defendant has no contacts with the State, or because the parties to a private contract have chosen another adjudicative forum. The principles of adjudicatory jurisdiction have been well-developed in the conflict of laws (private international law). In Europe, in civil and commercial matters, adjudicatory jurisdiction is mainly tied to the place of domicile or residence of the defendant. The United States, for its part, historically had more liberal rules of adjudicatory jurisdiction. ‘Minimum contacts’ of the defendant with the forum sufficed for a finding of personal jurisdiction, and even ‘tag’ jurisdiction, on the basis of the defendant’s transitory presence in the forum, was accepted. More recently, however, the U.S. Supreme Court has required that the defendant be essentially ‘at home’ in the forum state,31 thereby narrowing the gap with Europe.

 

Functional jurisdiction’, finally, is a term that is mostly used in the law of the sea, where, in essence, it refers to coastal States’ limited jurisdiction over the activities in ‘their’ maritime zones (the territorial sea, the contiguous zone, the exclusive economic zone, and the continental shelf), and, to a limited extent, to any State’s jurisdiction over certain activities on the high seas, such as piracy and the trade in slaves.33 Such jurisdiction is in the first place geared towards protecting coastal States’ own legitimate interests, although exceptionally also towards protecting common concerns. It involves both a prescriptive and an enforcement component, which do however not necessarily coincide, e.g., the coastal State may adopt laws and regulations relating to innocent passage through the territorial sea in respect of a considerable number of activities,36 but it may only enforce those laws there (whether criminally or civilly) in limited circumstances.