Jurisdiction

Author: Sué González Hauck, Max Milas

Required knowledge: Link

Learning objectives: Understanding XY.

B. Imperial Heritage of Jurisdiction

The notion of jurisdiction that prevails in international law is one of European origin, which has been used to justify the colonialist projects of various European notions. This section offers a brief introduction to the European origins of jurisdiction. It retraces the development and application of the concept of jurisdiction as a tool of formal colonisation and explores present-day implications of this imperial heritage.

I. Origins of Jurisdiction on the European Continent

In the Roman Republic, iuris dictio denoted the function of an official to judge in a matter. The overarching principle defining jurisdiction was the principle of personality. Jurisdiction thus referred both to the personal competence of someone holding an office to decide in a legally binding manner and the to the capacity of an individual person to invoke, e.g., Roman law. This personality principle necessarily lead to pluralistic legal arrangements, in which an individual person could simultaneously be bound by multiple bodies of rules stemming from different authorities.

The medieval concept of iurisdictio arose from the combination of iuris-dictio (to speak the law) and iuris-ditio (the power of the law). Generally speaking, iurisdictio meant authority (potestas) rather than a legal concept. This, in turn, was divided into legal power (iurisdictio simplex) and other powers (imperium). In this respect, the modern concept of jurisdiction is perhaps more similar to the Roman concept than to the medieval one. 

The development of the notion of jurisdiction in the 16^th and 17^th centuries was intimately linked to the development of territorial sovereignty. It was Jean Bodin’s idea of sovereignty as absolute authority over a population within a territory that sparked authors like Pierre Ayrault to develop early versions of territorial jurisdiction.

The parallel development of territorial sovereignty and jurisdiction, however, did not mean that jurisdiction as it developed on the European continent in the 16^th and 17^th centuries was devoid of personal and religious components. The Spanish and Portuguese concept of jurisdiction in particular were embedded in religious ideas of natural law that distinguished between particular and local forms of worldly jurisdiction on the one hand and universal jurisdiction of the catholic church on the other hand. The Spanish Requirement (Requerimiento) of 1513, sets out this universal religious jurisdiction as follows: ‘[o]f all these nations God our Lord gave charge to one man, called St. Peter, that he should be lord and superior of all the men in the world, that all should obey him, and that he should be the head of the whole human race, wherever men should live, and under whatever law, sect, or belief they should be; and he gave him the world for his kingdom and jurisdiction’.

II. Jurisdiction as a Technology of Colonial Imperialism

The main argument that Spanish conquistadores deployed to justify the subjugation of the indigenous population in the ‘New World’ was the aforementioned universal jurisdiction of the catholic church, which was exercised by the pope.

The concept of jurisdiction in international law was subsequently formed by Alberico Gentili and by Hugo Grotius. Grotius developed the concept of ‘freedom of the seas’ on behalf of the Dutch East India Corporation. The main argument in his work Mare Liberum served to counter British and Spanish claims of exclusivity over the Atlantic and to legally facilitate the economic exploitation of the oceans by the Dutch East India Corporation. The construction of jurisdiction-free spaces thus enabled European colonial powers to pursue their interests unhindered and seemingly legitimized by international law. Similarly, Europeans used the concept of ‘terra nullius’ to legitimize colonial violence.

The development of jurisdiction in the 19^th century was marked by increasing formalization, which had two main consequences: First, on the European continent, jurisdiction was now exclusively tied to territory and the plurality of legal sources to which an individual person could refer was reduced to the single source of state jurisdiction defined by territory. Second, formal colonial governments and bureaucracies replaced chartered companies as the protagonists of colonial appropriation, which resulted in the ‘formalization of empire’ and included the imposition of strict territorial boundaries. In the colonies as well as in semi-colonial territories and even territories that were not subject to colonial rule but still subject to Western hegemony, the newly established Western model of exclusive territorial state jurisdiction was defended by dismissing and supplanting non-Western laws as unsystematic.

Even though the Western model of jurisdiction was imposed on colonized territories, jurisdiction in the colonies differed from jurisdiction on the European continent. After all, the colonies were built on inequality and on – at best – relative sovereignty of peoples in the South, whereas jurisdiction on the European continent relied on sovereign equality and non-intervention.

‘To complicate matters, no regime was firmly territorialized under colonial rule such that colonial jurisdictions were total and complete. Colonialism was never monolithic. Even settler-colonies tended to exempt indigenous peoples from European colonial jurisdictions, albeit in an inconsistent manner, resulting in deep practical problems in legal courts. Jurisdiction and territoriality imposed by foreign sovereigns were sometimes recognized by colonial subjects or tacitly accepted, while at other times they were aggressively challenged. Both phenomena of collaboration and resistance would almost always be found in one territory simultaneously. As a result, colonial jurisdictions were, more often than not, precarious right up to the end and beset with practical problems. To add to this, colonial rule often led to many layers of jurisdiction within a single territory resulting in complex jurisdictions which were ordered hierarchically within colonial formulation with European legal orders at the very top. Pluralist configurations in various formats further complicated matters as different groups could jostle over jurisdictional politics’.

‘On the flip side of the coin, extraterritorial jurisdictions in the form of treaty ports, concessions, garrisons, and protectorates could be seen as an extreme manifestation of this scheme of privileges and exceptions. The primary impetus for engaging in extraterritorial negotiations was to protect commercial interests. Extensive commercial contact naturally led to many disputes and Europeans refused to be subjected to non-Western laws. Asymmetry of power is implied in every concessionary arrangement. Extraterritoriality was rightfully deemed to be ‘quintessential legal imperialism’, especially since it was yoked to a scale of civilization’.

C. Territories of Jurisdiction

I. Domestic Jurisdiction

1. Territorial Jurisdiction

As with most international law stories centred around the defining idea of ‘classical’ international law – state sovereignty – the usual starting points for the doctrine of territorial jurisdiction are the Island of Palmas arbitral award and the PCIJ Lotus case.

The arbiter in the Island of Palmas case was Max Huber. His famous statement on the relationship between territorial sovereignty and jurisdiction reads: ‘Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the function of a State’.

The Lotus case, which the PCIJ decided in 1927 and which has since then become one of the most cited international law cases, was directly concerned with jurisdiction.

II. International Jurisdiction

2. International Courts

Briefly, reference to https://en.wikibooks.org/wiki/Public_International_Law/Peaceful_Settlement_of_Disputes#a._Contentious_Jurisdiction

D. Types of Jurisdiction

Jurisdiction entitles states to exercise power within their territory by means of legislative, executive and judicial authority. In this respect, jurisdiction is an important component of state sovereignty. It can be exercised by the legislative (especially parliaments), executive (especially administrations) and judicial (especially courts) branches. International law reflects this tripartite nature of jurisdiction by distinguishing between jurisdiction to prescribe, jurisdiction to enforce, and jurisdiction to adjudicate. States are free to decide which branch they use to exercise the respective type of jurisdiction.

Prescriptive jurisdiction allows states to stipulate rules that govern the relationship between states, humans, corporations, animals, things and the environment. States may – according to their domestic law – use their legislative, executive or judicial branches for this purpose. States can enforce these rules issued within the framework of prescriptive jurisdiction coercively by relying on their enforcement jurisdiction. Again, states can rely on all three branches to enforce prescribed rules. States are also free to choose the means for law enforcement within their territory as long as there is no rule of international law to the contrary. Finally, states may also provide for judicial or quasi-judicial procedures for the observance and enforcement of prescribed rules or legal relations between subjects according to their adjudicative jurisdiction. In this way, states can establish procedures for states, people, corporations, animals, things and the environment. International law contains rules that deviate from this basic freedom of states to prescribe, enforce and adjudicate, depending on the area of law and the subjects concerned.

Advanced: Territorial Limits of Jurisdiction

States always have jurisdiction within their territory if there is no prohibition against it. This view is primarily based on the infamous Lotus case, in which the PCIJ held that – in the absence of a prohibition – international law permits states to exercise jurisdiction. States can even enact laws and render judgements within their territory that govern conduct outside their territory. However, these laws cannot be enforced provided there is no permission. The permission can be based on international treaties between the states concerned or on customary international law. States can therefore exercise all three types of jurisdiction within their territory as long as there is no prohibition under international law. States can also exercise jurisdiction to prescribe and jurisdiction to adjudicate outside their territory, but not their jurisdiction to enforce. Since only explicit prohibitions prevent the lawful exercise of jurisdiction domestically, but an explicit permission is necessary foe enforcing domestic laws on foreign territory, these general principles of jurisdiction are an example of the Westphalian tradition of modern international law.

E. Situating Jurisdiction in International Law

F. Politics of Jurisdiction

Further Readings

• Daniel S. Margolies, Umut Özsu, Maïa Pal, and Ntina Tzouvala (eds.), The Extraterritoriality of Law: History, Theory, Politics, Abingdon/New York, Routledge, 2019, vii-235 p.
• Cedric Ryngaert, Jurisdiction in International Law, Oxford, Oxford University Press, 2^nd ed., 2015, 235 p.
• Lea Raible, Human rights unbound: a theory of extraterritoriality, Oxford, OUP, 2020, xvi-235p.
• Nicole Roughan, Authorities. Conflicts, Cooperation and Transnational Legal Theory, Oxford, OUP, 2013, 262 p.
• Nicole Roughan, Authorities. Conflicts, Cooperation and Transnational Legal Theory, Oxford, OUP, 2013, 262 p.
• Matthew Craven, “What Happened to Unequal Treaties? The Continuities of Informal Empire”, Nordic Journal of International Law, 2005, Vol. 74, No. 3-4, pp. 335-382. (cited in Gleider Hernández, International Law, Oxford, OUP, 2019, lxxv-588p., p. 207)

Conclusion

• Summary I
• Summary II