Bernas Public International Law – JURISDICTION OF THE STATES Part 2

CHAPTER 9 JURISDICTION OF THE STATES Part 2

UNIVERSALITY PRINCIPLE

This recognizes that certain activities, universally dangerous to states and their subjects, require authority in all community members to punish such acts wherever they may occur, even absent a link between the state and the parties or the acts in question

Examples of acts covered by Universality Principle:

a. Piracy – any illegal act of violence or depredation committed for private ends on the high seas or outside the territorial control of any state

b. Genocide – acts committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group

c. Crimes against humanity – acts committed as part of a widespread or systematic attack directed against any civilian population

1. Attack directed against any civilian population

2. Extermination – internal infliction of conditions of life

3. Enslavement

4. Deportation or forcible transfer of population

5. Torture

6. Forced pregnancy

7. Persecution

8. Crime of Apartheid

9. Enforced disappearance of persons

d. War crimes – grave breaches of the Geneva Convention of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention

e. Aircraft piracy

f. Terrorism

PASSIVE PERSONALITY PRINCIPLE

This does not enjoy wide acceptance
State may apply law, criminal law, to an act committed outside its territory by a person not its national where the victim of the act was its national
Not accepted for ordinary torts or crimes but is increasingly accepted as applied to terrorist and other organized attacks on a state’s nationals by reason of their nationality, or to assassination of a state’s diplomatic representatives or other officials

CONFLICTS OF JURISDICTION – modes of resolving conflict of jurisdiction

1. Balancing Test – if the answer is yes to all the following questions, then the court will assume jurisdiction

a. Was there an actual or intended effect on a state’s foreign commerce?

b. Is the effect sufficiently large to present a cognizable injury to the plaintiffs, and, therefore, a violation of the anti-trust law?

c. Are the interests of the state sufficiently strong, vis-à-vis those of other nations, to justify an assertion of extraordinary authority

2. International Comity – state will refrain from exercising its jurisdiction is it is unreasonable

Factors to consider in determining unreasonableness:

a. Link or connection of the activity to the territory of the regulating state

b. Character of the activity to be regulated

c. Existence of justified expectations that might be protected or hurt by the regulation

d. Likelihood of conflict with regulation by another state

3. Forum non conveniens – application is discretionary with the court

If in the whole circumstances of the case it be discovered that there is real unfairness to one of the suitors in permitting the choice of a forum which is not the natural or proper forum, either on the ground of convenience of trial or the residence or domicile of parties or of its being the locus contractus or locus solutionis

EXTRADITION – the surrender of an individual by the state within whose territory he is found to the state under whose laws he is alleged to have committed a crime or to have been convicted of a crime

This is a process that is governed by a treaty
Legal right to demand extradition and the correlative duty to surrender a fugitive exist only when created by treaty
Procedure for extradition is normally through diplomatic channels

Principles governing Extradition

1. No state is obliged to extradite unless there is a treaty

2. Differences in legal system can be an obstacle to interpretation of what the crime is

3. Religious and political offenses are not extraditable

Bail in Extradition Cases