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Domestic Courts as Agents of Development of the International Law of Jurisdiction

  • ROGER O'KEEFE

Abstract

The role of domestic courts in the development of the international law of jurisdiction is less direct and less important than might be supposed. As a manifestation of the practice and opinio juris of the forum state, domestic judicial decisions take a back seat to legislation and, like legislation, represent the position of a single state alone. The more influential part that domestic judicial decisions and, indeed, proceedings can play in the evolution of the international rules on jurisdiction is as triggers both for reactive practice on the part of other states and for international litigation. Domestic decisions can also shape international law when looked to by foreign courts as persuasive judicial authority.

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1 The term ‘decision’ is used throughout this article to refer not just to the court's bare ruling on the point at issue between the parties but also, where relevant, to its judgment in its entirety.

2 It may be worth emphasizing that the decisions of domestic courts are not judicial decisions within the meaning of Art. 38(1)(d) of the Statute of the International Court of Justice. The latter refers solely to decisions by international courts and tribunals.

3 This has especially been the case in courts of the common-law tradition. In England and Wales – one of the three separate jurisdictions within the UK – alone, see R v. Cox (Peter Stanley) [1968] 1 WLR 88 (UK 1967); four of the five Law Lords in R v. Treacy, 55 ILR 110 (UK 1970); Secretary of State for Trade v. Markus [1976] AC 35 (UK 1975); three of the five Law Lords in Director of Public Prosecutions v. Stonehouse, 73 ILR 252 (UK 1977); R v. Smith (Wallace Duncan) (No. 4) [2004] QB 1418 (UK 2004); R v. Sheppard [2010] 1 WLR 2779, 2784–8, paras. 20–33 (UK 2010).

4 (1774) 98 ER 1021. See also, even earlier, Skinner v. East India Company, 6 St. Tr. 710, 719 (1666).

5 In addition to the cases mentioned in the text, see e.g., Director of Public Prosecutions v. Doot, 57 ILR 117, 119 (Lord Wilberforce)(UK 1973); Rosenstein v. Israel, ILDC 159 (IL 2005), paras. 22–26 and 36; XYZ v. Commonwealth of Australia, ILDC 528 (AU 2006), para. 13 (Gleeson CJ) and para. 130 (Kirby J). A more unusual example – unusual in that the House of Lords eventually held that the English courts did not enjoy jurisdiction even though ‘it [was] by no means certain that any rule of international law would be violated’ – is British South Africa Company v. Companhia de Moçambique [1893] AC 602, 624–5 (Lord Herschell LC) (UK 1893).

6 See, e.g. S v. Mharapara, 84 ILR 1, 9–11 (Zimbabwe 1985); Columa v. Magistrates of the Intermediate Court, ILDC 1258 (MU 1998), para. 9.

7 See, e.g. United States v. Benitez, 741 F. 2d 1312, 1316 (11th Cir. 1984)(US); United States v. Rezaq, ILDC 1391 (US 1998), para. 36.

8 See, e.g. Benitez, supra note 7, 1316; United States v. Bravo, ILDC 1061 (US 2007), para. 17.

9 See Attorney-General for Israel v. Eichmann, 36 ILR 5, 26, para. 12 (Israel 1961).

10 See Attorney-General for Israel v. Eichmann, 36 ILR 5, 298–304, para. 12 (Israel 1962).

11 The accused's conduct was manifestly covered by Israel's Nazi and Nazi Collaborators (Punishment) Law 1950.

12 In an analogous vein, it may in rare instances be that the ambit of a common-law crime is uncertain or, less rarely, that a court is called on to determine an unsettled non-statutory point of conflict of laws. In such cases, some judges have in the past at least mentioned the public international rules on jurisdiction, even if their decisions have been based on domestic principles. See Doot, supra note 5, 119 (Lord Wilberforce); Companhia de Moçambique (supra, note 5), 624 (Lord Herschell LC); Mharapara (supra, note 6), 9–11; Treacy, supra, note 3, 127–8 and 130 (Lord Diplock).

13 See also e.g. United States v. Reumayr, ILDC 1050 (US 2008), para. 28; United States v. Neil, ILDC 1247 (US 2002), paras. 12 and 14; R (Al-Skeini) v. Secretary of State for Defence, 133 ILR 499, 716, para. 46 (Lord Rodger), ILDC 702 (UK 2007); R (Smith) v. Oxfordshire Assistant Deputy Coroner [2011] 1 AC 1, 93, para. 53 (Lord Phillips PSC) (UK 2010); Scilingo Manzorro v. Spain, ILDC 1430 (ES 2007), para. 7.

14 15 USC Sections 1–7.

15 15 USC Sections 12–27 and 29 USC Sections 52–53.

16 See 15 USC Sections 1, 2, 13a and 24, especially Sections 1 and 2.

17 See 15 USC Section 15.

18 United States v. Aluminum Co. of America, 148 F. 2d 416, 443 (2nd Cir.1945)(US).

19 For the practical consequences of the decision, see infra section 2.b.

20 American Soda Ash Corporation and CHC Global (Pty) Ltd v. Competition Commission of South Africa, ILDC 493 (ZA 2002), para. 17.

21 Ibid., para. 18.

22 Repealed by Federal Law Gazette I No. 61/2005.

23 Re Erste Bank, ILDC 1593 (AT 2006), para. 27.

24 Formerly 49 USC App. Section 1472(n), now 49 USC Section 46502(b)(2)(C).

25 1970 Hague Convention on the Suppression of the Unlawful Seizure of Aircraft, The Hague, 860 UNTS 105.

26 See United States v. Yunis (No. 3), 88 ILR 176, 182, ILDC 1476 (US 2001). See also, albeit conflating Arts. 4(2) and 7 of the Convention, Rezaq (supra, note 7), para. 31.

27 See Organic Law 6/1985, of 1 July 1985, on the Judiciary (Ley Orgánica del Poder Judicial), Art. 23(4)(a). Art. 23(4) has since been amended so as to condition the exercise of the court's jurisdiction on the suspect's presence in Spain, on the existence of Spanish victims, or on some other link with Spain.

28 Menchú v. Two Guatemalan Government Officials, ILDC 137 (ES 2005), para. 9, author's translation.

29 Ibid., para. 7.

30 Translation from http://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#StGBengl_000P6. See also e.g. Criminal Code (Denmark), §8; Criminal Code (PRC), Art. 9; Criminal Code (Switzerland), Art. 6(1).

31 The substantive provision to which §6(9) gave its ambit was the provision on murder in the German Criminal Code. Murder as a grave breach of the Geneva Conventions is now punishable, on the basis of universal jurisdiction, pursuant to §§ 1 and 8(1) of Germany's Code of Crimes against International Law of 6 June 2002.

32 1949 Convention Relative to the Protection of Civilian Persons in Time of War, Geneva, 75 UNTS 287 (‘Fourth Geneva Convention’).

33 See Bosnia–Herzegovina Genocide Case (Kusljić), 131 ILR 274, 278, para. 4 (Germany 2001).

34 See also, delivered the same day, Sokolović, ILDC 564 (DE 2001), para. 4.

35 See Jiménez Sánchez v. Gibson, ILDC 993 (ES 2006), para. 7. The Court cited specifically Arts. 146 and 147 of the Fourth Geneva Convention (supra, note 32), along with Art. 79 of 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I), Geneva, 1125 UNTS 3. That the grave-breaches regime of the Geneva Conventions obliges the assertion of universal jurisdiction by the high contracting parties was affirmed, again in discussion of Art. 23(4)(h) of the Organic Law on the Judiciary, in Scilingo (supra, note 13), para. 7.

36 Re Sharon and Yaron, 127 ILR 110, 122–3, ILDC 5 (BE 2003).

37 1949 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 75 UNTS 31, Art. 49; 1949 Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 75 UNTS 85, Art. 50; 1949 Convention Relative to the Treatment of Prisoners of War, Geneva, 75 UNTS 135, Art. 129; Fourth Geneva Convention, supra note 32, art. 146.

38 Re Sharon and Yaron, supra note 36, 123.

39 See R v. Hape, 143 ILR 140, ILDC 758 (CA 2007).

40 Such a discretion might be expected in legislation implementing the 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, The Hague, 847 UNTS 231, Art. 12(b) of which permits a contracting state to refuse a letter of request if it ‘considers that its sovereignty . . . would be prejudiced thereby’.

41 Rio Tinto Zinc Corporation v. Westinghouse Electric Corporation [1978] AC 547, 631 (UK 1977).

42 See Demjanjuk v. Petrovsky, 79 ILR 534, 543–6 (US 1985).

43 See now Germany's Code of Crimes against International Law, Sections 1 and 6. Section 6(1) of the Criminal Code has been repealed.

44 1948 Convention on the Prevention and Punishment of the Crime of Genocide, Paris, 78 UNTS 277.

45 See Jorgić, 135 ILR 152, 166, para. 6(aa) (Germany 2000). See also ibid., para. 6(bb).

46 See Polyukhovich v. Commonwealth of Australia, 91 ILR 1, 39–41 (Brennan J, dissenting) and 119–20 (Toohey J) (Australia 1991).

47 See ibid., 119–20.

48 See R v. Klassen, ILDC 941 (CA 2008), especially paras 86, 94 and 101.

49 1982 United Nations Convention on the Law of the Sea, Montego Bay, 1833 UNTS 3.

50 See The ‘Cygnus’ Case (Somali Pirates), 145 ILR 491, 494 (Netherlands 2010).

51 See XYZ, supra note 5, paras. 13 (Gleeson CJ) and 130 (Kirby J).

52 See Hape, supra note 39, para. 60; Klassen, supra note 48, especially paras. 86, 94 and 101.

53 See United States v. Clark, ILDC 897 (US 2006), para. 21 and cases cited therein; United States v. Plummer, ILDC 315 (US 2000), para. 21 and cases cited therein.

54 See Al-Skeini, supra note 13, 716, para. 46 (Lord Rodger); Smith, supra note 13, 156, para. 238 (Lord Collins JSC).

55 See Columa, supra note 6, para. 9.

56 See Kircaoglu and Sanara, ILDC 1635 (IT 2010), para. 4.1.

57 See Doot, supra note 5, 817 (Lord Wilberforce).

58 See Klassen, supra note 48, paras. 93–94 and 101.

59 See United States v. Yunis (No. 2), 82 ILR 343, 348–9 (US 1988). The point was left undecided in Yunis (No. 3), supra note 26, 181.

60 See Re Sharon and Yaron, supra note 36, 123.

61 See XYZ, supra note 5, para. 4 (Gleeson CJ); Klassen (supra, note 48), paras. 89–90, 94, 96 and 100.

62 1958 Convention on the High Seas, Geneva, 450 UNTS 11.

63 Kircaoglu and Sanara, supra note 56, para. 4.1, citing also the court's previous decision in Cass. 30.10.1969, Matrino. Quite apart from the elementary conflation of exclusive jurisdiction and territoriality, why the court referred in a case involving the smuggling of migrants to Art. 97 (on collisions and other incidents of navigation on the high seas) of UNCLOS, rather than to Art. 92 (exclusivity of flag-state jurisdiction on high seas), is anyone's guess.

64 See United States v. Marino-Garcia, ILDC 687 (US 1982), para. 8, including quote, and para. 9.

65 Neil, supra note 13, para. 11.

66 Hape, supra note 39, para. 63 (LeBel J), quoted verbatim in Klassen, supra note 48, para. 64.

67 Treacy, supra note 3, 130 (Lord Diplock). Although his Lordship founds his dictum on what he calls ‘the international rules of comity’ (ibid., 127; see also, similarly, ibid., 130, ‘the rules of international comity’), it is tolerably clear from the surrounding passages that he is referring in this context – as is not always and perhaps not usually the case with references to comity – to the customary international rules on jurisdiction.

68 See Hape, supra note 39, especially 174–5, 182 and 185–6, paras. 84–85, 87, 105 and 115 (LeBel J).

69 See North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, ICJ Rep. 1969, 3, 42–3, paras. 73–74.

70 When it comes to reaction in the form of protest, it may be that states protest even when the domestic judicial decision is founded strictly on domestic law, both because what they are protesting is less the judicial decision than the underlying legislation of which it is an instantiation and because of the Alabama Claims principle, viz the basic tenet of the law of state responsibility according to which a state may not invoke the insufficiency of its domestic law as a justification for its breach of international law.

71 See e.g. the European Union démarches of 15 March 1995 and 5 March 1996, 35 ILM 397 (1996), prior to the passage on 12 March 1996 of the Cuban Liberty and Democratic Solidarity (Libertad) Act 1996 (‘Helms-Burton Act’). See also the EC démarches in UKMIL (1992) 63 BYIL 725, 728 and 729 in relation to previous, similar bills.

72 It may be too that judicial proceedings provide an opportunity for the executive of the forum state to intervene in order to put forward its views on the relevant international jurisdictional rules. Consider e.g. Rio Tinto, supra note 47, 589 and 594.

73 See United States v. Aluminum Co. of America (supra, note 18).

74 Lowe, A. V., International Law (2007), 173.

75 The US Supreme Court was unable to hear the case, as too many of the justices were obliged to recuse themselves.

76 What was resented in this and similar cases was as much the arrogation by the US, through its courts, of an exorbitant jurisdiction to enforce as the exorbitant jurisdiction to prescribe on which the proceedings rested. The immediate upshot was the UK's Shipping Contracts and Commercial Documents Act 1964, Section 2(1)(b) of which provided for government-mandated non-compliance with orders from foreign courts for the production of commercial documents or information where the request ‘would constitute an infringement of the jurisdiction which, under international law, belongs to the United Kingdom’. Analogous legislation was eventually passed in Australia, Canada, Denmark, France, the Netherlands and Switzerland. The Shipping Contracts and Commercial Documents Act was in time replaced by Section 2(2)(a) of the Protection of Trading Interests Act 1980 (‘if it infringes the jurisdiction of the United Kingdom or is otherwise prejudicial to the sovereignty of the United Kingdom’).

77 See e.g. UKMIL (1979) 50 BYIL 352. The prosecutions in question were United States v. Atlantic Container Line, Crim. No. 79-00271 (DDC, filed 1 June 1979) and United States v. Bates, Crim. No. 79-00272 (DDC, filed 1 June 1979).

78 For excerpts from the UK's amicus brief, as well as from its amicus brief at first instance to the US District Court for the Northern District of Illinois (Eastern Division), see UKMIL (1979) 50 BYIL 352–7.

79 The default judgment was made final in In re Uranium Antitrust Litigation; Westinghouse Electric Corporation v. Rio Algom Ltd and Others, 473 F. Supp. 382 (ND Ill. 1979)(US).

80 See In re Uranium Antitrust Litigation; Westinghouse Electric Corporation v. Rio Algom Ltd and Others, 617 F. 2d 1248 (7th Cir. 1980)(US).

81 See Foreign Antitrust Judgments (Restriction of Enforcement) Act 1979 (Australia), subsequently replaced by the Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Australia); Protection of Trading Interests Act 1980 (UK), supra note 76; Foreign Extraterritorial Measures Act 1985 (Canada).

82 Note that, although the passage of the Foreign Trade Antitrust Improvements Act (15 USC Section 6a, inserted by way of Pub. L. 97–290, title IV, Section 402, 8 October 1982, 96 Stat. 1246) had the effect of rendering inapplicable to conduct involving foreign trade or commerce, other than import trade or commerce, the penal provisions of Sections 1 and 2 of the Sherman Act unless such conduct has a ‘direct, substantial and reasonably foreseeable effect’ on domestic or import trade or commerce, it left untouched the provision for treble damages in private antitrust actions, viz 15 USC Section 15.

83 100 ILR 566 (US 1993).

84 In the event, in a statement not forming part of the ratio, the Supreme Court held, ibid., 585 (emphasis added), that ‘the Sherman Act applies to foreign conduct that was meant to produce and did in fact produce some substantial effect in the United States’.

85 See UKMIL (1992) 63 BYIL 734–738.

86 This is not to say that all effects-based assertions of prescriptive penal jurisdiction over the extraterritorial conduct of foreigners are internationally unlawful. The effects doctrine appears to have attained international acceptance where the penalized conduct has, and was intended to have, a direct and substantial harmful effect in the territory of the prescribing state.

87 It is worth noting that, while the French law (infra note 90) under which the investigation was opened by Judge Jean-Louis Bruguière provides for universal jurisdiction, emphasis was placed on the fact that the crew members killed on board the aircraft allegedly brought down by the suspects were French – a fact which, as a matter of international law, conferred on France prescriptive and adjudicative jurisdiction under the passive personality principle.

88 See Vallmajo i Sala v. Kabarebe, Formal Indictment, ILDC 1198 (ES 2008).

89 See AU Assembly Decision on the Report of the Commission on the Abuse of the Principle of Universal Jurisdiction, AU Doc. Decision Assembly/AU/Dec. 199(XI), 1 July 2008; AU Assembly Decision on the Implementation of the Assembly Decision on the Abuse of the Principle of Universal Jurisdiction, AU Doc. Decision Assembly/AU/Dec. 213(XII), 3 February 2009; AU Assembly Decision on the Abuse of the Principle of Universal Jurisdiction, AU Doc. Decision Assembly/AU/Dec. 243(XIII) Rev.1, 3 July 2009 and all subsequent, identically entitled resolutions.

90 See Law No. 96-432 of 22 May 1996 (France) and Organic Law on the Judiciary, supra note 27, Art. 23(4).

91 Tanzania, on behalf of the AU, eventually took the issue to the UN General Assembly, opening up the international jurisdictional questions implicated by the French and Spanish proceedings to the views of all UN member states.

92 See e.g. AU Assembly Decision on the Report of the Commission on the Abuse of the Principle of Universal Jurisdiction, supra note 89, para. 3; ‘The Scope and Application of the Principle of Universal Jurisdiction. Report of the Secretary-General’, UN Doc. A/66/93, 20 June 2011, para. 158.

93 Indeed, according to the Report of the AU–EU Technical Ad Hoc Expert Group on the Principal of Universal Jurisdiction, Council of the EU Doc. 8671/09, 16 April 2009, Annex, para. 33, ‘African states welcome the principle of universal jurisdiction’.

94 As with protest, it may be that a state brings a claim in relation to domestic proceedings or a domestic judgment founded on domestic law alone, for the reasons outlined in note 70 above.

95 The SS Lotus (France v. Turkey), 1927, PCIJ Rep. Ser. A N° 10.

96 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, ICJ Rep 2002, 3.

97 It may also be recalled that it was, inter alia, the initiation of an investigation, on the basis of universal jurisdiction, by the Tribunal de grande instance of Meaux into crimes against humanity and torture allegedly committed in the Republic of the Congo by Congolese against Congolese that sparked the Congo's application to the ICJ in the eventually discontinued Certain Criminal Proceedings in France (Republic of the Congo v. France), General List No. 129. See Certain Criminal Proceedings in France (Republic of the Congo v. France), Application Instituting Proceedings, 2–9, http://www.icj-cij.org/docket/files/129/7067.pdf.

98 Jorgić v. Germany, no. 74613/01, 12 July 2007, para. 68, ECHR 2007-III.

99 Statute of the International Court of Justice, Art. 38(1)(d).

100 Klassen, supra note 48, para. 89, referring ibid., paras. 89–91, to Clark, supra note 53 and XYZ, supra note 5.

101 Polyukhovich, supra note 46, 119.

102 Ibid., 120.

103 Ibid., citing Re Einsenträger, 14 LRTWC 8 (US 1947); The Hadamar Trial (Re Klein), 1 LRTWC 46 (US 1945); In re Tesch (Zyklon B Case), 13 Ann. Dig. 250 (UK 1946); Re List (Hostages Trial), 15 Ann. Dig. 632 (US 1948); Eichmann (supra, notes 9 and 10); Demjanjuk (supra, note 42).

* University Senior Lecturer in Law and Deputy Director of the Lauterpacht Centre for International Law, University of Cambridge; Fellow and College Lecturer in Law, Magdalene College, Cambridge [].

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