Basis of Jurisdiction of States in Public International Law

In public international law, the concept of jurisdiction refers to the legal authority of a state to regulate, adjudicate, and enforce its laws. The jurisdiction of a state is inherently tied to its sovereignty and is a critical aspect of how states interact with each other and with individuals or entities within and outside their territories. A state’s jurisdiction is essential for maintaining law and order and enforcing its legal norms, but it is also limited by principles of international law to ensure respect for the sovereignty of other states.

The basis of jurisdiction of states can be categorized into several key principles, each delineating the circumstances under which a state may assert its authority. These principles include:

1. Territorial Jurisdiction

This is the most fundamental basis of jurisdiction. A state has the primary right to exercise jurisdiction over all persons, properties, and events within its territorial boundaries.

Subjective Territoriality: This refers to a state's jurisdiction over acts that begin within its territory, regardless of where they are completed. For example, if a crime is initiated in State A but completed in State B, State A can claim jurisdiction over the crime because it started within its borders.
Objective Territoriality: This refers to a state's jurisdiction over acts that are completed within its territory, even if they were initiated outside the state's borders. For instance, if a fraudulent act is initiated in State A but affects a person or property in State B, State B can assert jurisdiction over the matter.

2. Nationality or Active Personality Principle

Under this principle, a state has jurisdiction over its nationals, regardless of where they are in the world. This principle extends a state's jurisdiction beyond its territorial limits based on the nationality of the individual involved.

This applies to both natural persons (citizens) and juridical entities (corporations).
For example, if a Filipino citizen commits a crime abroad, the Philippines can claim jurisdiction based on the active personality principle.

3. Passive Personality Principle

This principle allows a state to claim jurisdiction over offenses committed against its nationals, even when those offenses occur outside the state's territory.

Although traditionally limited in scope, this principle has gained increased recognition in cases involving serious crimes such as terrorism, kidnapping, and human trafficking.
For instance, if a Filipino is murdered in a foreign country, the Philippines may claim jurisdiction over the crime under the passive personality principle.

4. Protective Principle

This principle allows a state to assert jurisdiction over acts committed outside its territory if those acts threaten its national security, public safety, or vital interests.

Crimes such as espionage, counterfeiting of state currency, and plotting to overthrow the government, even if conducted abroad, may fall under the protective jurisdiction of the state.
The protective principle is used when the offense directly impacts the sovereignty, integrity, or vital interests of the state.

5. Universal Jurisdiction

This is an exceptional form of jurisdiction that permits a state to claim jurisdiction over certain serious crimes regardless of where they were committed, the nationality of the perpetrator, or the nationality of the victim.

Universal jurisdiction is often invoked for crimes considered to be of universal concern, such as genocide, war crimes, crimes against humanity, piracy, torture, and slavery.
The rationale behind universal jurisdiction is that these crimes are so egregious that all states have an interest in preventing and punishing them, regardless of where the crime occurred or who was involved.
Examples include the prosecution of former Chilean dictator Augusto Pinochet by Spanish courts, despite the crimes being committed in Chile.

6. Extraterritorial Jurisdiction

While the territorial jurisdiction principle is foundational, certain instances permit states to assert extraterritorial jurisdiction under international law:

Effects Doctrine: A state may assert jurisdiction over actions conducted abroad if those actions have substantial effects within the state’s territory. This is a recognized aspect of both civil and criminal jurisdiction.
Nationality-based Jurisdiction: As discussed earlier, states may exercise extraterritorial jurisdiction over their nationals, regardless of where the conduct occurs (i.e., active personality principle). This is especially relevant in areas like tax law, where nationals are subject to their home country’s tax system even if they reside abroad.
Agreements and Treaties: Certain international treaties or agreements between states provide for the exercise of extraterritorial jurisdiction over certain offenses, such as international drug trafficking, money laundering, or cybercrimes.

Limitations on Jurisdiction

While a state’s right to exercise jurisdiction is broad, it is not absolute. The exercise of jurisdiction must be consistent with international law, which places certain limitations to avoid conflict between states:

Sovereignty: A state cannot unilaterally impose its laws on the territory of another state without consent, as doing so would violate the principle of sovereignty.
Non-intervention Principle: International law prohibits states from intervening in the domestic affairs of another state, which includes the unauthorized assertion of jurisdiction.
Diplomatic Immunities: Diplomats, consular officials, and other foreign state representatives enjoy immunity from the jurisdiction of the host state, as provided for in treaties such as the Vienna Convention on Diplomatic Relations (1961) and the Vienna Convention on Consular Relations (1963).
State Immunity: States, in certain circumstances, are immune from the jurisdiction of foreign courts, especially with regard to sovereign acts (acta jure imperii). However, this immunity is often limited in commercial transactions (acta jure gestionis).

Balancing Jurisdictional Conflicts

Jurisdictional conflicts arise when multiple states claim jurisdiction over the same individual or act. To resolve such conflicts, states typically rely on the principles of comity, diplomatic negotiation, and international cooperation through mechanisms such as extradition treaties and mutual legal assistance agreements.

Comity: A state may choose not to exercise its jurisdiction in deference to another state that has a stronger connection to the matter, either because of the location of the crime, the nationality of the parties, or the impact on that state.
Double Jeopardy (Ne bis in idem): Some states and international legal frameworks, such as the European Convention on Human Rights, prohibit the prosecution of a person for the same offense if they have already been adjudicated for it in another state.

Conclusion

The basis of jurisdiction of states in public international law is a multi-faceted and complex system that balances the rights of states to enforce their laws with the need to respect the sovereignty of other nations. The principles of territoriality, nationality, passive personality, protection, and universality provide the foundations for the exercise of jurisdiction, while limitations grounded in international law ensure that states do not overstep their boundaries, fostering peaceful international relations and cooperation.