Passive Personality Principle in Public International Law: Basis of Jurisdiction

The Passive Personality Principle is one of the recognized bases for a state’s jurisdiction in international law. It allows a state to claim jurisdiction to try a foreign national for offenses committed abroad when the victim of the offense is a national of the state asserting jurisdiction.

Definition

The Passive Personality Principle permits a state to exercise jurisdiction over foreign nationals who commit crimes outside its territory, provided that the victim of the crime is a national of the state asserting jurisdiction. This principle is primarily concerned with protecting nationals of a state from harm abroad, regardless of where the offense was committed or the nationality of the perpetrator.

Legal Basis

In public international law, states traditionally exercise jurisdiction based on five key principles:

Territoriality Principle: Jurisdiction based on where the offense occurs.
Nationality Principle: Jurisdiction over crimes committed by nationals, regardless of where the offense occurs.
Protective Principle: Jurisdiction over acts that threaten the state's security or integrity.
Universal Jurisdiction: Jurisdiction over certain heinous crimes, such as genocide or piracy, regardless of where they occur or the nationality of the perpetrators or victims.
Passive Personality Principle: Jurisdiction based on the nationality of the victim.

The Passive Personality Principle is controversial in comparison to the other principles. It was historically criticized as being an overreach of state power, as it extends a state's jurisdiction beyond its borders and potentially interferes with the sovereignty of the state where the crime was committed. Despite this, it has gained more acceptance over time, particularly with the rise of transnational crimes such as terrorism, trafficking, and cybercrime.

Application in International Jurisprudence

The principle has been applied and accepted by a number of states, particularly in cases involving serious offenses where national interests are affected. However, international law requires that the application of this principle must respect the sovereignty of other states and follow the general norms of international law, especially in cases where multiple jurisdictions may be involved.

Some significant cases involving the application of the Passive Personality Principle include:

United States v. Yunis (1988): A Lebanese national hijacked a Jordanian airliner carrying U.S. citizens. The U.S. court asserted jurisdiction under the passive personality principle since U.S. nationals were victims.
Lotus Case (France v. Turkey, PCIJ, 1927): Although not directly a passive personality case, this case addressed issues of extraterritorial jurisdiction, illustrating how such principles were viewed at the time.

Modern Development and Acceptance

The application of the Passive Personality Principle has evolved over time and is increasingly invoked in response to the global nature of crime, particularly in relation to terrorism, cybercrimes, and crimes against humanity. International treaties and conventions, such as the 1979 International Convention against the Taking of Hostages and the 1997 International Convention for the Suppression of Terrorist Bombings, endorse the application of passive personality jurisdiction for certain offenses.

Terrorism: States, particularly those frequently affected by terrorism, have invoked the Passive Personality Principle to prosecute terrorists who have harmed their nationals abroad.
Cybercrimes: With the borderless nature of cyber offenses, some states assert jurisdiction over foreign nationals committing cybercrimes against their citizens or businesses, even when these crimes occur outside their territory.
Trafficking and Sexual Exploitation: Some states have expanded their jurisdiction over crimes involving the trafficking or sexual exploitation of their nationals abroad, especially when their citizens are victims in countries with weak legal frameworks.

Limitations and Controversies

The Passive Personality Principle is not universally accepted, and its exercise must conform to the following limitations and conditions:

Dual Criminality: The conduct in question must be criminal in both the state asserting jurisdiction and the state where the offense occurred.
Sovereignty of Other States: The application of this principle must not encroach on the sovereignty of other states. Mutual respect for state sovereignty is a core principle of international law.
International Comity: When multiple jurisdictions assert authority over the same offense, states must exercise their jurisdiction with restraint and in a manner that respects international comity to avoid diplomatic friction.

Critics argue that the Passive Personality Principle could result in unjust results, particularly where laws in the state asserting jurisdiction differ substantially from those in the state where the crime occurred. Furthermore, it may lead to excessive extraterritorial overreach and jurisdictional conflicts.

Philippine Context and Jurisprudence

In the Philippines, the Passive Personality Principle is reflected in certain provisions of the Revised Penal Code (RPC) and other special laws that extend jurisdiction over crimes committed abroad against Filipino nationals.

Article 2 of the Revised Penal Code: The Philippines asserts jurisdiction over offenses committed outside its territory under limited circumstances, including those affecting national security, public interest, or where Filipino citizens are involved as either offenders or victims. This is a form of passive personality jurisdiction.
Republic Act No. 9372 (Human Security Act of 2007) and Republic Act No. 11479 (Anti-Terrorism Act of 2020): These laws extend the Philippines' jurisdiction to offenses committed abroad if they involve Filipino nationals as victims, reflecting a broader acceptance of passive personality jurisdiction, particularly in the context of transnational terrorism.
Cybercrime Prevention Act of 2012 (Republic Act No. 10175): Section 21 extends jurisdiction over cybercrimes committed abroad if the victim is a Filipino national, again invoking the Passive Personality Principle.

Conclusion

The Passive Personality Principle in public international law enables states to extend their jurisdiction beyond their borders to protect their nationals. While it is not universally accepted and remains contentious due to its potential extraterritorial reach, it has gained traction in modern jurisprudence, particularly in cases involving terrorism, cybercrime, and human trafficking. The principle is grounded in the desire of states to protect their citizens from harm, even when that harm occurs abroad, while remaining mindful of the need to respect the sovereignty and legal systems of other nations.

In the Philippine legal framework, the Passive Personality Principle is reflected in the Revised Penal Code and various special laws, affirming the country’s commitment to protecting its nationals from crimes committed abroad.