Jurisdiction

Author: Sué González Hauck, Max Milas

Required knowledge: History of International Law, States, International Organisations

Learning objectives: Understanding the histories and functions of jurisdiction; the difference between domestic and international jurisdiction; jurisdiction in specialised fields of international law; how jurisdiction is used as a means of exercising power

A. Introduction

Jurisdiction assigns an actor the authority to speak in the name of the law. The Latin origin of the word, juris dicere (Latin: 'speaking law'), illustrates this. However, where someone receives a right to speak from a position of authority, others are, at the same time, deprived of it. International law confirms this (dis-)empowering function of jurisdiction. Jurisdiction separates one domestic from another domestic, domestic from international and one international from another international sphere of competence. Jurisdiction entitles states to exercise power within their territory by means of legislative, executive and judicial authority. 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. The use of one term, jurisdiction, to describe different demarcations often leads to misunderstandings. However, these are inherent in the breadth - or 'multivalent' nature - of the concept, and thus merely illustrate the relevance of jurisdiction.

As a way of generalizing from all the facets of jurisdiction, jurisdiction describes a triangular relationship between a holder of jurisdiction and therefore authority or entitlement, the share of the world to which this jurisdiction relates (a person, group of people, territory, property, deed, or event), and the creator or source of the jurisdictional entitlement. This chapter examines this triangular relationship, first, by focusing on the historical developments that shaped each side of the triangle as they relate to international law, second, by presenting the rules of international jurisdiction, which mainly authorize the state and relate to the concept of territory, and, third, by shedding some light on varying concepts of community as sources of jurisdictional authorization or entitlement.

B. Historical Origins 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 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 (Latin: 'to speak the law') and iuris-ditio (Latin: 'the power of the law'). Generally speaking, iurisdictio meant authority (Latin: 'potestas') rather than a legal concept. This, in turn, was divided into legal power (Latin: 'iurisdictio simplex') and other powers (Latin: '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 that sparked authors like Pierre Ayrault to develop early versions of territorial jurisdiction. Bodin himself, however, did not mention territory in his conception of sovereign authority, which was consistent with an early modern conception of sovereignty as a legal relationship between sovereign and subject.

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

International law uses the concept of jurisdiction for three key functions. It demarcates domestic jurisdictions from each other, distinguishes domestic jurisdiction from international jurisdiction and separates international jurisdictions from each other. The concept of territory is central to each of these types of demarcations, in the sense that territorial sovereignty is generally presented as the rule and exercising jurisdiction without territory is seen as the exception. Therefore, this section starts with an introduction to the concept of territory before delving into how the existing rules on jurisdiction construe each of the three mentioned types of demarcations.

I. The Concept of Territory

As should have become apparent from the previous section on the historical origins of jurisdiction, the concept of territory is not an inherent elemnt of jurisdiction. Instead, the relationship between jurisdiction and territory is contingent, which means that it is the result of the specific way in which a set of decisions were made in the context of specific social, economic, and political constellations. All of these decisions and constellations could have been different, leading to a different - or entirely absent - relationship between jurisdiction and territory.

Additionally, territory itself is not something that is just naturally 'there'. Given the close connection between territory and physical elements, it may be tempting to reduce territory to a purely physical phenomenon consisting of noting more than a discrete geographical space. Upon closer inspection, however, it becomes apparent that the concept of territory is shaped not by physical but social dimensions. It is a social institution that is constantly shaped and reshaped through cultural, social, and political practices.

Understanding both the contingent nature of territorial jurisdiction and the inherently social nature of territory itself makes it easier to understand the fact that there can be instances of 'jurisdiction without territory', i.e. of exercising jurisdiction without a physical presence. This has historically taken three forms, which still exist in some way today. The first is the direct exercise of extraterritorial jurisdiction by a state, seen in the informal empire created by imperial Western powers through the capitulation or consular regimes in semi-colonies. This can be seen today in agreements such as the State of Forces Agreement signed by the US. The second is the exercise of jurisdiction by private firms, historically seen in chartered companies like the Dutch and the British East India Companies, and now in multinational corporations that construct transnational non-state governance systems where they hold authority. The third is jurisdiction exercised by international organizations, such as the Mandate System of the League of Nations, the Trusteeship system under the United Nations and, in the present, International Territorial Administration.

II. Domestic Jurisdiction

As early as 1928, Max Huber established in his role as arbiter in the Island of Palmas case that “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.” In this respect, jurisdiction is an important component of state sovereignty.

1. Types of Domestic 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.

1. Domestic Jurisdiction in Specialized Fields of International Law

Jurisdiction is one of the most important concepts in international law. Therefore, it is not surprising that jurisdiction is closely linked to other core concepts of general international law and is relevant in almost all specialized fields of international law. Jurisdiction derives from state sovereignty and allows states to prescribe, enforce and adjudicate conduct of persons within their territory. In this respect, the three key principles of international law on jurisdiction can be traced back to the three components of statehood: territory, population, and government. Firstly, states can exercise jurisdiction if an act takes place on their territory. Secondly, states can exercise jurisdiction if their nationals act or are affected by an act on or outside their national territory. Thirdly, states can exercise jurisdiction if the act at least affects their effective exercise of state power.

Advanced: Definition of State Interests

While this third principle is generally accepted, the specific definition of this key interest is highly contested. According to the widest “effects doctrine”, propounded in particular by the United States, any effect is sufficient. On the other side is the narrowest view, which requires impairment of the internal or external security of the state. By way of conciliation, others demand at least a reasonable exercise of jurisdiction or a genuine link between the state and the act giving rise to its jurisdiction. However, this question cannot be answered in the abstract. Instead, the specifics of each field of international law must be considered.

The principles of the law of jurisdiction discussed above shape all fields of international law. However, each field derives specific rules from these principles to address its own particularities. At first glance, this produces a confusing, sometimes contradictory web of jurisdictional concepts. At the same time, the various fields of international law also face differing challenges that can hardly be resolved appropriately through uniform sets of rules. Often, more than one state may exercise jurisdiction in more than one field of international law on the basis of more than one principle. In this respect, the fragmentation of jurisdictional concepts in international law is evidence of “the social complexity of a globalizing world”.

a) Criminal Jurisdiction

In criminal law, five grounds for jurisdiction have developed in the 19^th century. These principles appear in other fields of international law as well, but originally apply to the exercise of jurisdiction in criminal matters alone. According to the territorial principle, states may exercise jurisdiction over crimes committed on their territory. This applies both to crimes that are initiated on a state’s own territory but finalized on foreign territory or crimes that are initiated on foreign territory and finalized on a state’s own territory.

Example for overlapping jurisdictions: If in a border region person A fires a shot on the territory of state X that crosses the border to state Y and kills person B in state territory Y, state X and state Y both have criminal jurisdiction according to the territorial principle.

From the perspective of jurisdiction, ships and aircrafts are part of the national territory of the flag or registering state and are thus subject to the territorial principle. According to the nationality principle, states my exercise criminal jurisdiction if the offence is committed by one of their citizens. According to the passive personality principle, states may exercise jurisdiction over crimes committed on foreign territory against one of their citizens. According to the protective principle, states may exercise jurisdiction over crimes committed on foreign territory by foreigners if the offence threatens the national security or comparable interests of that state. States of the Global North in particular invoke this principle to penalize “illegal” migration. According to the universal principle, states my exercise criminal jurisdiction even though none of the four principles presented justifies jurisdiction, if the crime affects fundamental interests of the international community. Nowadays, the principle applies in particular to piracy, slavery, genocide, crimes against humanity, war crimes and torture.

These five principles of jurisdiction must be distinguished from the enforcement of international criminal law. The five principles establish the jurisdiction of the state to enforce domestic criminal law, whereas the norms of international criminal law enable the enforcement of international law. These specific grounds of jurisdiction in international criminal law cannot simply be transferred to other specialized fields of international law. Instead, the special rules of the respective field are decisive.

b) Civil Jurisdiction

Compared to criminal jurisdiction, states assume greater discretion for civil jurisdiction. Ultimately, it is up to the respective state to define its civil jurisdiction. This results in differing practices. In common law countries, jurisdiction is often based on the territorial principle. Accordingly, states assert their jurisdiction as soon as a natural person enters the state's territory or a legal person register (parts of) the company on the state's territory. Civil law countries often seek to establish jurisdiction in the state where the defendant resides. Because of these wide possibilities it seems reasonable that states should be free to exercise their civil jurisdiction within the framework of the general rules of jurisdiction of international law.

c) Immunity Law and Jurisdiction

Immunity law determines in which cases states cannot exercise their jurisdiction. In this respect, it reflects the core idea of jurisdiction already described, according to which states may exercise jurisdiction on their territory unless it is prohibited by international law. Immunity law – as jurisdiction itself – serves to protect the sovereign equality of states. Immunities from jurisdiction derive from state immunity, head of state immunity, and diplomatic immunity. State immunity prohibits a state from exercising jurisdiction to enforce and to adjudicate over another state and its property. According to the immunity of heads of states doctrine, “holders of high-ranking office in a State […] enjoy immunities from jurisdiction in other States”. Diplomatic immunity serves to protect the effective exercise of diplomatic functions by prohibiting the receiving states from enforcing laws and adjudicating against the diplomatic missions, the personnel of diplomatic missions, and the archives and communication of diplomatic missions of the sending state.

d) Other Specialized Fields of International Law

Jurisdictional issues are also relevant in other fields of international law. In some cases, customary international law or international treaties prohibit the establishment of sovereignty over a territory (so-called common heritage of humankind), so that no state may exercise territorial jurisdiction. This applies in particular to Antarctica, outer space, and the high seas. In other fields of international law, several states can simultaneously claim jurisdiction over a matter. For example, the Internet enables the exchange of communications and other data across borders. A typical data processing operation begins in one state, ends in another, and often has a global impact. States respond to this part of globalization by relying on the nationality principle, the territoriality principle, or (a broad interpretation of) the protective principle as known from criminal law.

On waters, jurisdictional overlaps may also occur, for example, between the state in which a ship is registered, the state whose citizens are on the ship, and the state in whose waters the ship is navigating. While the first two cases can already be resolved with the general principles of jurisdiction presented in this chapter, modern maritime law divides the waters jurisdiction of states into three geographical zones. The sovereign zone includes the internal waters of a state, the territorial sea and the archipelagic waters of a state. In this zone, a state may exercise its territorial jurisdiction exclusively, although other states have the right of innocent passage. The zone of sovereign rights includes the contiguous zone and the exclusive economic zone. In this zone, a state has the right to explore, exploit, conserve and manage the environment. The territorial jurisdiction therefore lies with the coastal state. However, other states may also use this zone, provided that in doing so they do not interfere with any interests of the coastal state. In the high seas, no state may exercise territorial jurisdiction. The high sea remains territorially unoccupied. Similarly to the maritime jurisdiction, states can also exercise exclusive territorial jurisdiction within the airspace above their territory, which includes territorial waters. Vertically, however, this territorial jurisdiction is limited by customary law on outer space and international treaties granting states the right to fly across the territory of another state.

However, international law employs jurisprudence not only to entitle states. In international environmental law, for example, states have an obligation to ensure that activities within their territory do not cause damage in areas beyond their jurisdiction. In international human rights law, too, jurisdictional clauses in human rights treaties extend state responsibility extraterritorially.

III. International Jurisdiction

While states often claim jurisdiction based on their territory or population, international organizations and courts lack this possibility. Instead, they derive their power to speak from international treaties establishing international organizations. These international sources assign a function to international organizations within which they can act.

Example for functions of international organizations: Art. 1 of the WHO Constitution stipulates that the WHO shall promote global health and Art. 1 UN Charter declares that the UN shall maintain international peace and security.

Advanced: Implied Powers of International Organizations

International organizations, however, not only claim functions explicitly laid down in international treaties, but also implied within these treaties. Accordingly, international organization can subsidiarily exercise all powers necessary to fulfil their chartered functions, “which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties”. This power is also referred to as assumed powers, incidental powers, or inherent powers. Nevertheless, this inherent function must always be attributable to the intention of the drafters of the respective treaty. International organizations relying on the implied powers doctrine must therefore demonstrate that the drafters of the treaty establishing them would have included a corresponding power into the treaty if they had thought of it during its drafting process.

Similarly, international courts base their jurisdiction on international treaties establishing them. They also refer to the implied powers doctrine to extend their jurisdiction beyond the wording of the treaty. For some courts, however, especially the ICJ, establishment on the basis of a treaty is not sufficient (ratione personae). Instead, states must additionally consent to the jurisdiction of the court for contentious cases (ratione materiae).

IV. Overlapping Jurisdictions

The principles of the law of jurisdiction discussed above shape all fields of international law. However, each field derives specific rules from these principles to address its own particularities. At first glance, this produces a confusing, sometimes contradictory web of jurisdictional concepts. At the same time, the various fields of international law also face differing challenges that can hardly be resolved appropriately through uniform sets of rules. Often, more than one state may exercise jurisdiction in more than one field of international law on the basis of more than one principle. Similarly, several international organizations and courts often claim jurisdiction over the same matters. In this respect, the fragmentation of jurisdiction in international law is evidence of “the social complexity of a globalizing world”.

Overlapping jurisdictions are therefore to be endured. In general, the underlying facts already lead to an appropriate allocation of jurisdiction. For example, if states wish to exercise their jurisdiction over a person, that person can necessarily only be in the jurisdiction of one state, which means that only that state can effectively exercise jurisdiction. Where this is not the case, states can negotiate, reach agreements, or initiate (quasi-)judicial proceedings to solve jurisdictional conflicts.

D. Politics of Jurisdiction

To understand jurisdiction beyond the purportedly neutral and technical rules, it is necessary to focus on the way in which jurisdictional rules both rely on and shape political communities. To be given the authority to speak in the name of the law means being authorized to speak for the political community constituted and bound by this law and it is this political community that is the source of this authorization.

Conclusion

This chapter presented the doctrinal principles of jurisdiction, which shape almost all aspects of modern international law, within a critical framework informed both by the genealogy of jurisdiction and by an account of the material realities of jurisdiction as a reflection and tool of resource distribution. The chapter began by observing that jurisdiction assigns an actor the authority to speak in the name of the law. By conferring this right on one, it is at the same time denied to others. It is this simultaneously empowering and disenfranchising function of jurisdiction that, in the history of international law, is closely linked to colonial oppression and postcolonial exercise of power, but also to emancipatory movements that have struggled for a right to speak. However, there is nothing to suggest that jurisdiction will not continue to be used for inclusion and exclusion within the international system. A purely neutral, doctrinal perspective on jurisdiction will therefore never be able to capture the full potential of this concept.

Summary

• Jurisdiction assigns an actor the authority to speak in the name of the law. As a way of generalizing from all the facets of jurisdiction, jurisdiction describes a triangular relationship between a holder of jurisdiction and therefore authority or entitlement, the share of the world to which this jurisdiction relates (a person, group of people, territory, property, deed, or event), and the creator or source of the jurisdictional entitlement.
• 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.
• Jurisdiction entitles states to exercise power within their territory by means of legislative (jurisdiction to prescribe), executive (jurisdiction to enforce) and judicial (jurisdiction to adjudicate) authority. Jurisdiction derives from state sovereignty and allows states to prescribe, enforce and adjudicate conduct of persons within their territory. In this respect, the three key principles of international law on jurisdiction can be traced back to the three components of statehood: territory, population, and government. While states often claim jurisdiction based on their territory or population, international organizations and courts lack this possibility. Instead, they derive their power to speak from international treaties establishing international organizations.
• To understand jurisdiction beyond the purportedly neutral and technical rules, it is necessary to focus on the way in which jurisdictional rules both rely on and shape political communities. To be given the authority to speak in the name of the law means being authorized to speak for the political community constituted and bound by this law and it is this political community that is the source of this authorization.

Further Readings

• Stephen Allen and others (eds), The Oxford Handbook of Jurisdiction in International Law (1st edn, Oxford University Press 2019)
• 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
• 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.
• 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.
• Cedric Ryngaert, Jurisdiction in International Law, Oxford, Oxford University Press, 2^nd ed., 2015, 235 p.

Further Resources

• EJIL:The Podcast! Episode 17 – “What’s wrong with the international law on jurisdiction?”
• Red Notice (Directed by Rawson Marshall Thurber, Netflix 2021)
• The Mosquito Coast (Directed by Justin Theroux and Rupert Wyatt, Apple TV+ 2021)
• Stateless (Directed by Emma Freeman and Jocelyn Moorhouse, Netflix 2020)