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  • Print publication year: 2018
  • Online publication date: April 2019

7 - Jurisdiction



Jurisdiction refers to the ability of a State to make and enforce its laws. While often related to sovereignty, and intrinsically linked to its territory, jurisdiction can exist without a connection to territory. Jurisdiction can be held to exist in a variety of contexts, depending on the location of events, the nationality of participants or the surrounding circumstances, and will also indicate whether a State may be able to undertake enforcement action to uphold its law. This chapter considers the nature of jurisdiction insofar as it affects persons, corporations, ships and aircraft. The different types of recognised international law jurisdiction are each assessed, including territorial jurisdiction, nationality jurisdiction, universal jurisdiction, the protective principle, and passive personality jurisdiction. Jurisdictional immunities as they apply to States, Heads of States, State officials and diplomats are also considered.

Types of jurisdiction

All types of jurisdiction may be divided into two basic types: prescriptive jurisdiction and enforcement jurisdiction. Prescriptive jurisdiction is the power to regulate an activity, and to prescribe certain behaviour. That is to say, prescriptive jurisdiction is the ability to make laws that can validly purport to regulate people and situations, regardless of their location. Enforcement jurisdiction is the ability of a State to validly enforce its law, through the exercise of executive and judicial power. That is, it is the legal validity of a State to arrest, try, convict and gaol an individual for a breach of its laws.

Jurisdiction can be further broken down into categories, based on territory, nationality, the nature of the act in issue, and possibly even the nationality of the victim. Each of the different categories is explored specifically below, but each raises issues of prescriptive and enforcement jurisdiction. In considering any of the circumstances that have given rise to national jurisdiction, there also needs to be consideration of whether the State exercises merely prescriptive or also enforcement jurisdiction.

The Case of the SS ‘Lotus’ (often known as the Lotus Case) is a very famous decision of the Permanent Court of International Justice (PCIJ) that has been the subject of much ongoing debate. In the extract that follows, Judge Moore considers some broad issues relating to jurisdiction and international law.

Barker, Craig J., Immunities from Jurisdiction in International Law, Oxford University Press, Oxford, 2009
Foakes, Joanne, The Position of Heads of State and Senior Officials in International Law, Oxford University Press, Oxford, 2014
Goodman, Camille and Rothwell, Donald R., ‘Australian Jurisdiction and International Law’ in Rothwell, Donald R. and Crawford, Emily (eds), International Law in Australia, Lawbook, Sydney, 2017
Macedo, Stephen (ed), Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law, University of Pennsylvania Press, Philadelphia, 2004
Ryngaert, Cedric, Jurisdiction in International Law, Oxford University Press, Oxford, 2015