Public International Law (Sem 1, 2012, LAWS1023) Stephens Lecture and Tutorial Groups Topic Summary This brief

f topic summary is designed to assist you in your revision, and not to be a substitute for your independent reading. Hence this summary and the other summaries for the lectures by Associate Professor Tim Stephens will be illustrative rather than exhaustive (the required readings, in particular, will not be covered in any depth, if at all). 5. STATE JURISDICTION IN PUBLIC INTERNATIONAL LAW Jurisdiction is a term with several meanings. Here we refer to it as the power or competence of a state to prescribe or enforce its laws, including where the exercise of such power or competence has an impact upon the person, property, or interests of a citizen of a foreign state, or upon that foreign state itself. Jurisdiction includes (a) a power to prescribe (a legislative power), (b) a power to adjudicate (a judicial power), and (c) a power to enforce (an executive power).

Jurisdiction is the term that described the limits of the legal competence of a State or other regulatory authority (such as the European Community) to make, apply, and enforce rules of conduct upon persons. It concerns essentially the extent of each states right to regulate conduct or the consequence of events [Oppenheims International Law (1992) 456]The term jurisdiction is also commonly used in international law to describe the scope of the right of an international tribunal, such as theInternational Criminal Court, to adjudicate upon cases and to make orders in respect of the parties to them. In abstract terms, the jurisdiction of States and the jurisdiction of tribunals are both instances of the concept of the scope of the powers of a legal institution; but it is traditional, and practically useful to distinguish between them and to treat them separately. Vaughan Lowe, Jurisdiction in Malcolm D Evans, International Law (2003) 329, 329330. Normally states exercise prescriptive and enforcement jurisdiction only in respect of matters occurring within their territory or relating to their nationals (this is especially the case with respect to enforcement jurisdiction). However, states have often found it necessary to exercise prescriptive jurisdiction having some extraterritorial effects.

[T]he first and foremost restriction imposed by international law upon a State is that failing the existence of a permissive rule to the contrary it may not exercise its power [i.e. enforcement jurisdiction] in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention. Lotus Ann Digest 1927-1928, Case No 98, 153 (Materials). (a) CIVIL JURISDICTION (i) State practice: extensive assertion of extra-territorial jurisdiction and jurisdiction based on the defendants transient presence; an absence of diplomatic protest What are the limits of the assertion of civil jurisdiction? A legitimate question of public international law even if, in practice, most issues regarding the exercise of civil jurisdiction arise in the context of private international law. Principles of public international law relating to limits to the exercise of jurisdiction apply both to civil and criminal matters. But as Akehurst (Materials) points out, the rules are somewhat different. The assertion of criminal jurisdiction has frequently been resisted. However, in the absence of diplomatic protests regarding the asserting of civil jurisdiction, even where there the connection with the asserting state is tenuous, Akehurst concludes that customary international law imposes no limits on the jurisdiction of municipal courts in civil trials. One example of a broad assertion of civil jurisdiction the Alien Tort Claims Act 1789 (US) (ATCA), under which US district courts have original jurisdiction in any civil action by non-nationals for violations of international law. A landmark decision in Filartiga v Pena-Irala 630 F.2d 876 (2d Cir 1980) revived the nd statute (US Court of Appeals for the 2 Circuit held that the provision gave it jurisdiction to consider private tort action brought by a Paraguayan national against a Paraguayan police officer for acts of torture committed in Paraguay). In Sosa v Alvarez-Machain 124 S. Ct. 2739 (2004) (a case concerning an ATCA claim brought by a Alvarez-Machain a, Mexican national, against Sosa, a fellow Mexican national, who collaborated with US agents in abducting Alvarez-Machain in Mexico and bringing him to Texas to face an indictment for murder) the US Supreme Court considered the history of the ATCA and concluded that the ATCA was a jurisdictional statute itself creating no new causes of actions. The Court stated (at 25) that Congress intended the ATS to furnish jurisdiction for a relatively modest set of actions alleging violations of the law of nations and that courts should require any claim based on the present-day law of nations to rest on a norm of international character accepting by the civilized world and defined with a specificity comparable

Public International Law (Sem 1, 2012, LAWS1023) Stephens Lecture and Tutorial Groups Topic Summary to the features of the 18 century paradigms we have recognized (at 30-31). The Court rejected the contention that a prohibition of arbitrary arrest had assumed the status of binding customary international law. The Court noted that the implications for allowing the action would be breathtaking, as it would support a cause of action in a US federal court for any arrest, anywhere in the world, unauthorised by the law of the jurisdiction in which it took place (at 43). Note the amicus curiae brief submitted by the United Kingdom and other foreign governments in Sosa v Alvarez-Machain, which stated that while [these foreign governments] recognise that those who commit human rights violations should be held accountable, they believe that any broad assertion of jurisdiction to provide civil remedies in national courts for such violations perpetrated against aliens in foreign places is inconsistent with international law.
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[C]onsensus as to universal criminal jurisdiction itself suggests that universal tort jurisdiction would be no more threatening.That is because the criminal courts of many nations combine civil and criminal proceedings, allowing those injured by criminal conduct to be represented, and to recover damages, in the criminal proceeding itselfThus, universal criminal jurisdiction necessarily contemplates a significant degree of civil tort recovery as well. Sosa v Alvarez Machain (2004) 542 US 692 per Breyer J. Who can be defendants in Alien Tort Claims Act proceedings? Can corporations be liable for a violation of customary international law? See Kiobel v Royal Dutch Petroleum Co, 17 September 2010 (US Court nd of Appeals, 2 Circuit) (Materials).

(ii) Immunities from civil jurisdiction derived from public international law (diplomatic, consular and foreign state immunity) Note that the existence of an immunity derived from public international law will operate as a procedural bar to the exercise of civil jurisdiction. On this see Topic 6. There are five recognised bases of criminal jurisdiction (territoriality, nationality, protective principle, universality and passive personality). Note that in relation to the one offence several states may exercise concurrent jurisdiction (this is obviously the case in respect of universal jurisdiction). Problem of overlapping or concurrent jurisdiction resolved by three main means (a) requirement for custody of offender, (b) rule against double jeopardy, (c) doctrine of foreign sovereign compulsion (i.e. a domestic court will excuse failure to comply with the law if to do so would involve offence against the laws of another state). The territorial basis of jurisdiction particularly important in the development of the English and Australian common law systems. Well accepted that a state may assert criminal jurisdiction when an element of a criminal offence takes place within its territory. Note that the premises of a diplomatic mission are part of the territory of the receiving and not the sending state: *R v Turnbull; ex parte Petroff (1971) 17 FLR 438 (Materials). Note that a foreign ship in Australian territorial waters is in Australian territory and is not a floating island of its flag state: *R v Disun; R v Nardin (2003) 27 WAR 146 (Materials).

(b) CRIMINAL JURISDICTION

(i) Territoriality as a basis for jurisdiction

The sections of the Crimes Act now in question apply as fully to acts done on embassypremises as to acts done elsewhere, but certain persons have a privilege or immunity from their operation and in any event it is a different question whether the law can be enforced in relation to such acts. R v Turnbull; ex parte Petroff (1971) 17 FLR 438 per Fox J (at 441). Often a criminal enterprise has connections with several states (eg, planned in state A, initiated in state B, completed in state C). Notion of subjective and objective territoriality devised to address this. Subjective territorial jurisdiction means the exercise of prescriptive jurisdiction by the state in which the criminal offence originated. Objective territorial jurisdiction means the exercise of prescriptive jurisdiction by the state in which the criminal offence is completed. A case involving the consideration, by analogy, of the subjective territoriality and objective territoriality principles was Ward v. R (1980) 142 CLR 308. In that case the HCA allowed an appeal against a conviction of Ward under Victorian law. Ward had shot and killed the victim beside the River Murray. It was found that the act of murder commenced in Victoria when gun fired, but was perfected when bullet struck victim in NSW, and that the courts of NSW rather than Victoria had jurisdiction. The territoriality principle relied upon extensively in Australian law. For some examples see the *Crimes Act 1900 (NSW), ss 10A, 10B and 10C (Materials) On territoriality generally read the "Lotus" Case (Materials). The Court observed (and Judge Moore agreed in his Dissenting Opinion) that states may exercise jurisdiction on the basis of the territorial

Public International Law (Sem 1, 2012, LAWS1023) Stephens Lecture and Tutorial Groups Topic Summary principle if one of the constituent elements of the offence, and more especially its effects, have taken place there. The Court found that offence produced effects on the Turkish vessel (a place assimilated to Turkish territory). Note also the Courts remarks that [t]he territoriality of criminal lawis not an absolute principle of international law. The case therefore involved the approval of Turkeys assertion of objective territorial jurisdiction. While the Lotus Case is uncontroversial as regards its statement of principles concerning the territoriality of enforcement jurisdiction, and the objective territoriality principle, its conclusion regarding the extent of prescriptive jurisdiction is not now accepted. The ratio of the Lotus appears to be that Turkey could exercise prescriptive jurisdiction in absence of proof of any rule to the contrary (a bold conclusion, and one which is not widely accepted today as it is generally thought that states asserting jurisdiction bear the onus of demonstrating that is entitled to do so on the basis of some connection with the offence or offender). In this regard note the following remarks by Vaughan Lowe: [The Lotus case] has been read as indicating that a State may extend the reach of its prescriptive jurisdiction as it chooses, except in circumstances where it can be shown that some rule of international law specifically prohibits it from doing so. A moments thought will indicate that it is extremely improbable that this is what the Court meant to sayState practice is consistently based upon the premise that it is for the State asserting some novel extraterritorial jurisdiction to prove that it is entitled to do so. Vaughan Lowe, Jurisdiction in Malcolm D Evans, International Law (2003) 329, 335. The effects doctrine extends the objective territorial jurisdiction principle to include situations where economic and other effects are considered sufficient to ground jurisdiction, even though no physical acts were committed in the state asserting jurisdiction. The effects doctrine has been relied upon to support US Anti-Trust legislation (anti-trust law is that area of law concerned with restrictive trade practices) which is expansive in its application (non-citizens and non-national corporations acting outside the US may be subject of the legislation, if the activity has some effect on domestic commerce in US, even though the activity was in complete conformity with the law of the place where it occurred). Some states, including Australia, have enacted defensive or blocking laws in response to the US legislation. The Foreign Proceedings (Excess of Jurisdiction) Act, 1984 (Cth) which enables the Attorney-General (Cth) to make orders, inter alia (a) prohibiting giving of evidence of foreign authorities/courts, (b) prohibiting registration/enforcement of foreign judgments in Australia, (c) prohibiting Australian citizens or corporations resident in Australia from carrying out orders and decisions of foreign governments. The A-G may exercise these powers where satisfied that the assumption of jurisdiction by the foreign court is contrary to international law or is inconsistent with international comity or international practice (s 6(4)). The main basis for the exercise of criminal jurisdiction by civil law countries, whose legal systems derive from the Roman law. Whether a person has the nationality of a particular state is determined by the municipal law of that state (within limits set by international law though in practice there are few real restrictions). Historically, not generally invoked by common law countries, however increasing trend in Australia to rely on this basis of jurisdiction. See eg Crimes at Sea Act 2000 (Cth); Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth); Crimes Act 1914 (Cth) Pt IIA (Child Sex Tourism) (on this legislation see *XYZ v Commonwealth (2006) 227 ALR 495 (Materials)). Under this principle, states may exercise jurisdiction over non-nationals who have committed an act abroad that is prejudicial to the security of the state exercising jurisdiction. This principle of jurisdiction designed to ensure that a states vital interests are protected. There is obvious potential for the principle to be abused, but there are accepted applications of the principle (e.g. prosecution of offences related to forgery of passports, counterfeiting etc).

(ii) Nationality principle: the jurisdictional competence of the national state of the offender

(iii) Protective (security) imperative as a basis for jurisdiction

The rationale of the protective principle is clearly linked to the protection of vital State interests. Accordingly, while the category is not closed, the potential for its expansion is limited. Whereas States could, in principle, apply any law that they might choose to their nationals, by no means every law could be given extraterritorial scope under the protective principle. Vaughan Lowe, Jurisdiction in Malcolm D Evans, International Law (2003) 329, 342. See *R v Casement [1917] 1 KB 98 (Materials) and Joyce v DPP [1946] AC 347 where the protective principle was invoked to support charges of treason against, respectively, a British subject, and a United States subject by birth who fraudulently obtained a British passport.

Public International Law (Sem 1, 2012, LAWS1023) Stephens Lecture and Tutorial Groups Topic Summary See *A-G (Israel) v. Eichmann 36 ILR 5 (1961) (Materials) in which the District Court of Jerusalem invoked protective principle as an alternative basis to universality in relation to genocide. What other interests constitute vital interests? United States v. Benitez 741 F 2d 1312 (1984), a decision of the US Court of Appeals for the Eleventh Circuit, involved prosecution of Colombian national for attempted murder in Colombia of two US Drug Enforcement Administration officials. The court noted that under the protective principle the crime had a potentially adverse effect upon the security or governmental functions of the US. This principle can be applied where the victim of the offence is the nationality of the prosecuting state. In The SS "Lotus" Case, Ann Digest 1927-1928, Case No 98, p 153 (Materials) the PCIJ expressly reserved question as to whether passive personality a valid basis of jurisdiction. See Criminal Code Act 1995 (Cth) s 104 (inserted by the Criminal Code Amendment (Offences against Australians) Act 2002 (Cth))

(iv) Passive personality principle

Offences against Australians

It can be concluded that the invocation of the passive personality principle is best justified in relation to terrorist and similar offences. In other cases its validity is dubious, and its exercise against a foreign national may be objected to by the national state of the person accused. This is most likely to be so in cases of extravagant assertions of the principle, or where it is invoked in respect of offences not universally regarded as criminal. Ivan Shearer, Jurisdiction in Sam Blay, Ryszard Piotrowitcz and Martin Tsamenyi (eds), Public International Law: An Australian Perspective (2nd ed, 2005) 154, 168. (v) Universality principle: crimes against public international law This basis of jurisdiction requires no particular link or nexus between the conduct or offender and the prosecuting state. Rather it asserts the interest and duty of the international community repress international crimes (either because they can only be dealt with effectively through the assertion of universal jurisdiction (eg piracy on the high seas), or because they are particularly heinous (eg genocide)). Jurisdiction will be exercisable when any state has custody of the offender, so long as the crime is one to which universal jurisdiction applies. First crime to be so recognised was piracy (and practical rationale for universal jurisdiction with respect to piracy clear), but since expanded to include, inter alia, genocide, war crimes, crimes against humanity and torture. See *1982 United Nations Convention on the Law of the Sea, Article 101 (Materials). See also Crimes Act 1914 (Cth) Pt IV (Piracy).

Piracy jure gentium

On 20 May 2007 the Sydney Morning Herald carried the following story: The pledge of the Opposition Leader, Kevin Rudd, to use the navy to intercept Japanese whaling ships in the 200 nautical mile exclusive economic zone declared off the Australian Antarctic Territory amounts to piracy and would fuel a dangerous nationalist backlash in Japan, the Government says. Having regard to Article 101 of the 1982 United Nations Convention on the Law of the Sea would such enforcement action by Australian vessels be piracy? WHEN Sea Shepherd Conservation Society member Pete Bethune climbed from his jet ski on to Japanese whaling ship the Shonan Maru 2 and presented a demand for money following weeks of hostile encounters between the whalers and Sea Shepherd, the environmental activists finally crossed the line from protesters to pirates..The money makes the difference. In presenting a demand for $3 million to the captain of the Japanese vessel to replace the Ady Gil, which was destroyed following a collision with the Shonan Maru, the Sea Shepherd members battling against the Japanese whalers have become pirates. Under the law of the sea, a pirate is defined as someone who commits an illegal act of violence for private ends (such as money) against another vessel on the high seas. Natalie Klein, The Australian, 18 February 2010 Achille Lauro incident and maritime terrorism Piracy requires that the piratical act be committed for private (i.e. not public or political) ends by persons on board one vessel against another vessel. Not piracy if the attack is launched against the victim vessels by persons already on board the vessel as passengers or crew. As regards maritime terrorism see Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988, 27 ILM 668 (1988). In Australia see Crimes (Ships and Fixed Platforms) Act 1992 (Cth).

Aircraft hijacking

Public International Law (Sem 1, 2012, LAWS1023) Stephens Lecture and Tutorial Groups Topic Summary As regards aircraft hijacking see *1970 Convention for the Suppression of Unlawful Seizure of Aircraft, 10 ILM 133 (1971) (Materials). In Australia see Crimes (Aviation) Act 1991 (Cth), s 12. See 1984 Convention Against Torture [1989] ATS 21. See also Crimes (Torture) Act 1988 (Cth). As regards war crimes and crimes against humanity see *Charter of the International Military Tribunal at Nuremberg (Materials) and the *Statute of the International Tribunal for Rwanda (Materials). See *Polyukovich v Commonwealth (1991) 172 CCLR 501 (Materials); *Re W97/164 and Minister (1998) 27 AAR 482 (Materials, 293); Syyy v Minister (2005) 220 ALR 394 (Materials); Prosecutor v Bisengimana Case No ICTR-00-60-T (2006) (Materials). See *Convention on the Prevention and Punishment of the Crime of Genocide 1948, 78 Articles I-IX (Materials). In Australia see the Criminal Code Act 1995 (Cth), ss 268.3-268.7 and the Genocide Convention Act 1949 (Cth). See also *A-G (Israel) v. Eichmann (1961) 36 ILR 5 (1961) (Materials) in which Court noted that Article 6 of the Genocide Convention could not have meant that only the territorial state could punish, as that would have foiled the very object of the Convention to prevent genocide In relation to crimes of international concern (such as certain acts of terrorism) a number of international conventions establish not only a treaty-based form of universal jurisdiction (any state party with custody of the prosecutor may prosecute) but impose a positive obligation to prosecute or to extradite to a state that will.

State torture War Crimes and crimes against humanity

Genocide

(vi) A duty to prosecute or extradite (aut dedere aut judicare)?

*1970 Convention for the Suppression of Unlawful Seizure of Aircraft (Materials) Article 7: The Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution. Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. This convention is given effect in Australian law by the Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 (Cth). In relation to the offence of genocide, customary international law imposes an obligation to extradite or punish offenders:

the obligation imposed by customary law on each nation State is to extradite or prosecute any person, found within its territory, who appears to have committed any of the acts cited in the definition of genocide set out in the [Genocide] Convention: Nulyarimma v Thompson (1999) 165 ALR 621 per Wilcox J. But on scope of customary international law in relation to universal jurisdiction see *Aerial Incident at Lockerbie (Libya v United States) 31 ILM 662 (1992) (Materials). See note in Materials. See *A-G (Israel) v. Eichmann (1961) 36 ILR 5 (1961) (Materials); US v Alvarez-Machain (1992) 31 ILM 900 and Australian reaction (Materials); Prosecutor v Nikolic Case No IT-94-2-AR73 (2003) (Materials).

(vii) International Criminal Court and the Primacy of National Jurisdiction (viii) Illegally obtained custody of fugitive offenders