Basis of Jurisdiction of States under Public International Law

In public international law, jurisdiction refers to the authority of a state to regulate conduct or enforce laws. This authority can extend to persons, property, and events, regardless of whether they are located within or outside the state's territory. The basis of state jurisdiction under public international law is grounded in several principles. The exercise of jurisdiction must conform to customary international law, treaty obligations, and general principles of law to avoid infringing upon the sovereignty of other states.

Here is an exhaustive exploration of the basis of jurisdiction of states:

I. Principles of Jurisdiction

There are five principal bases of jurisdiction in international law:

Territorial Jurisdiction
Nationality or Active Personality Jurisdiction
Passive Personality Jurisdiction
Protective Principle
Universality Principle

1. Territorial Jurisdiction

Territorial jurisdiction is the most common and accepted form of jurisdiction. It refers to the authority of a state to regulate conduct within its own borders.

Subjective Territoriality: A state may exercise jurisdiction over acts that occur within its territory. For instance, if a crime is committed within the borders of a state, that state has the right to prosecute the individual responsible.
Objective Territoriality: A state may exercise jurisdiction over acts that take place outside its borders but have substantial effects within the state's territory. This is also known as the effects doctrine. An example is the regulation of cross-border criminal activities like cybercrime or terrorism, where actions outside the state have direct consequences within the state.

Case Example:
The Lotus Case (France v. Turkey, PCIJ 1927) established the principle that a state could exercise jurisdiction based on objective territoriality. In this case, the Permanent Court of International Justice held that Turkey could assert jurisdiction over a collision at sea, even though the collision occurred on the high seas and involved a French ship, because the effects of the incident occurred within Turkey’s territorial waters.

2. Nationality or Active Personality Jurisdiction

Under the principle of nationality, a state has the authority to regulate the conduct of its nationals anywhere in the world. This jurisdiction is based on the connection between the individual and the state, derived from the person’s citizenship.

Active Personality: This refers to jurisdiction over nationals regardless of where the offense is committed. A state may prosecute its citizens for crimes committed abroad, provided the state has a legal framework that permits extraterritorial jurisdiction based on nationality.

Example:
The Philippines exercises nationality-based jurisdiction under the Philippine Passport Act (RA 8239), which allows prosecution of Filipinos for offenses committed abroad if such actions are punishable under both Philippine laws and the laws of the host country.

3. Passive Personality Jurisdiction

The passive personality principle allows a state to claim jurisdiction to prosecute foreign nationals who commit offenses against its citizens, even if the act occurred outside the state's territory. While controversial and less widely accepted than other principles, it is gaining recognition, particularly in cases involving terrorism, human trafficking, or other transnational crimes.

This principle is typically invoked to protect citizens abroad who are victims of crimes committed by non-nationals.

Case Example:
The U.S. Anti-Terrorism Act provides for jurisdiction based on the passive personality principle, allowing the U.S. to prosecute terrorists who harm U.S. citizens abroad, even if the criminal act occurs outside U.S. territory and involves non-U.S. nationals.

4. Protective Principle

The protective principle allows a state to exercise jurisdiction over foreign nationals who commit acts abroad that threaten the state's security or vital interests. This principle is invoked when offenses, even if committed outside the state’s borders, pose a direct threat to national security, state functions, or governmental institutions.

The protective principle is generally applied to cases involving espionage, counterfeiting, or acts that undermine the integrity of state institutions.

Example:
Many states, including the Philippines, apply this principle in cases of currency counterfeiting, where foreign nationals may be prosecuted for counterfeiting the national currency, even if the act occurred outside the state's borders.

5. Universality Principle

The universality principle asserts that certain crimes are so heinous that any state may assert jurisdiction over the offenders, regardless of the nationality of the perpetrator or the victim, or where the crime was committed. This principle is primarily applied to offenses that are considered jus cogens violations, or crimes under international law that are recognized as universally reprehensible.

Such crimes include:

Genocide
War Crimes
Crimes Against Humanity
Piracy
Terrorism
Slavery and Human Trafficking

Under the universality principle, any state can prosecute offenders of these crimes, regardless of any direct connection to the state (e.g., the nationality of the offender or victim, or the location of the offense).

Example:
The prosecution of Adolf Eichmann by Israel in 1961 is a well-known example of the universality principle. Although Eichmann committed crimes against humanity in Germany during World War II, Israel exercised jurisdiction based on the universal nature of the crimes.

Limitations on Jurisdiction

The exercise of jurisdiction by states is not unlimited. It must comply with certain constraints under international law, to avoid conflicts with the sovereignty of other states and prevent abuse of power. The following factors limit or condition a state’s exercise of jurisdiction:

Respect for Sovereign Equality: The principle of sovereign equality underpins international law. A state must not exercise its jurisdiction in a way that violates the sovereignty of another state. This is particularly relevant in the exercise of extraterritorial jurisdiction, which can create tensions between states.
Non-Intervention Principle: A state is prohibited from intervening in the domestic affairs of another state. Jurisdictional claims must respect the sovereignty of other states, and the exercise of jurisdiction must not encroach upon the authority of other states over their own territories or citizens.
Treaty Obligations: States may be bound by treaty provisions that limit or regulate their exercise of jurisdiction. For example, treaties governing extradition, mutual legal assistance, or the handling of transnational crimes may place procedural or substantive restrictions on jurisdictional claims.

Extraterritorial Jurisdiction and Enforcement

While a state may assert jurisdiction extraterritorially under any of the principles outlined above, enforcement of jurisdiction outside its own borders requires cooperation with other states. Extraterritorial jurisdiction is subject to:

Extradition Treaties: States may need to rely on extradition agreements to bring suspects to trial. Without such treaties, states cannot compel foreign authorities to surrender individuals within their jurisdiction.
Mutual Legal Assistance: States may enter into agreements for mutual legal assistance (MLA) to gather evidence, obtain testimony, or enforce judgments in cases involving cross-border crimes.
Diplomatic Channels: Diplomatic negotiations may be necessary in cases where a state seeks to assert jurisdiction extraterritorially, especially when no formal agreements exist.

Conclusion

The jurisdiction of states in public international law is a balance between safeguarding sovereignty, maintaining international peace, and ensuring accountability for criminal acts. The principles of territoriality, nationality, passive personality, protective measures, and universality all provide distinct bases for jurisdiction. However, their exercise must respect the constraints of international law and the sovereignty of other states. The evolution of transnational crimes and international cooperation mechanisms, such as extradition and mutual legal assistance, continues to shape the application of these jurisdictional principles.