Bernas Public International Law – JURISDICTION OF THE STATES Part 1

CHAPTER 9 JURISDICTION OF THE STATES Part 1

Jurisdiction – authority to affect legal interests

• The scope of a state’s jurisdiction over a person, thing or event depends on the interest of the state in affecting the subject in question
• Corresponding to the powers of the government, jurisdiction can be:

1. Legislative jurisdiction – prescribe norms of conduct
2. Executive jurisdiction – enforce the norms prescribed
3. Judicial jurisdiction – adjudicate

• International law limits itself to criminal rather than civil jurisdiction
• Civil jurisdiction is subject for private international law or conflicts of law
• Jurisdiction may also be acquired by treaty
• However, there are 5 popular principles on jurisdiction

TERRITORIALITY PRINCIPLE

• This is generally supported in customary law
• Fundamental source of jurisdiction is sovereignty over territory
• It is necessary that boundaries be determined
• To have jurisdiction, occupation is not enough; control must also be established (Las Palmas Case)

Boundary – separating the land areas of two states is determined by the acts of the states expressing their consent to its location

• When the boundary between 2 states is a navigable river – its location is the middle of the channel of navigation
• When boundary between 2 states is a non-navigable river or lake – its location is the middle of the river or lake

Effects Doctrine

• State also has jurisdiction over acts occurring outside its territory but having effects within it

1. Subjective Territorial Principle – a state has jurisdiction to prosecute and punish for crime commenced within the state but completed or consummated abroad
2. Objective Territorial Principle – state has jurisdiction to prosecute and punish for crime commenced without the state but consummate within its territory

Jurisdiction over Foreign Vessels in Philippine Territory – we follow the English Rule

1. French Rule – crimes committed abroad a foreign merchant vessel should not be prosecuted in the courts of the country within whose territorial jurisdiction they were committed unless their commission affects the peace and security of the territory

2. English Rule – crimes perpetrated under such circumstances are in general triable in the courts of the country within whose territory they were committed

NATIONALITY PRINCIPLE

• This is generally supported in customary law
• Every state has jurisdiction over its nationals even when those nationals are outside the state

Effective Nationality Link – used to determine which 2 states of which a person is a national will be recognized as having the right to give diplomatic protection to the holder of dual nationality

Corporations – state has jurisdiction over corporations organized under its laws

Maritime vessels – state has jurisdiction over vessels flying its flag

• Same applies to aircraft and spacecraft

Stateless Persons – persons who have no nationality

a. De jure stateless – persons who have lost their nationality, if they had one, and have not acquired a new one

b. De factor stateless – persons who have a nationality but to whom protection is denied by their state when out of the State

PROTECTIVE PRINCIPLE

• This is generally supported in customary law
• State may exercise jurisdiction over conduct outside its territory that threatens its security as long as that conduct is generally recognized as criminal by states in the international community
• However, this is strictly construed to those offenses posing a direct, specific threat to national security

Examples of acts covered by Protective Principle:

a. Plots to overthrow the government
b. Forging its currency
c. Plot to break its immigration regulations