State Jurisdiction

• Author: John H. Currie
• Pages: 332-362

CHAPTER 8

STATE JURISDICTION

A. INTRODUCTION

The exercise of jurisdiction over persons, conduct, property, and re-

sources is one of the more important manifestations of a state’s sover-

eignty. Such jurisdiction is commonly exercised through a variety of

acts, including those of a legislative, judicial, administrative, executive,

and enforcement nature. All such powers are implied in the notion of

sovereignty. They are the means by which the state displays and exerts

its sovereign will within its own particular sphere of inf‌luence or juris-

dictional domain.

The diff‌iculty for the international lawyer, here as elsewhere, is

that the international community is made up of many sovereign states,

each with its own jurisdictional domain and set of jurisdictional com-

petencies. Moreover, as we have seen, each sovereign is under a legal

obligation not to interfere in the exercise of another state’s sovereignty.

Such a system would pose few problems if the world were truly made

up of totally insular states between which there were no exchanges

whatsoever. However, the institution of the sovereign state has not had

this effect and, indeed, international contact and cross-border f‌lows of

people, communications, trade, and so on continue to grow at an ever-

increasing pace.

The resulting potential for overlap between the interests of differ-

ent states, and hence for conf‌lict between competing exercises of state

jurisdiction, requires that there be rules delineating the permissible

332

State Juris diction333

jurisdictional reach of each state. In other words, it is necessary to de-

f‌ine where one state’s legitimate jurisdictional domain leaves off and

where that of another state takes effect. To address this need, gener-

ally applicable rules governing the allowable bases and extent of state

jurisdiction have emerged in customary international law. These have

been supplemented either by special treaty or customary regimes pro-

viding for particular jurisdictional rules that apply in specif‌ic locations

or legal contexts, such as jurisdiction on the high seas or aboard air

or space craft. Some of these have been reviewed above.1 The focus of

this chapter, however, is on the general rules regulating the nature and

extent of the jurisdictional reach of states more broadly.

As we shall see, the customary rules governing jurisdiction do not

always provide for absolute and exclusive jurisdictional rights in favour

of one state only. Rather, this area of the law proceeds on a relative

basis, that is, by contrasting the strength of one state’s jurisdictional

claim over a given event or person with that of another.2 The approach

is therefore similar to that taken by international law in evaluating any

given state’s claim of sovereignty over territory: the relative merits of

the competing claims govern the outcome in any particular case, rather

than any abstract and absolute f‌inding of jurisdiction.

Some texts approach this topic by drawing a distinction between

“criminal” jurisdiction on the one hand and “civil” jurisdiction on the

other.3It is true that jurisdictional conf‌licts in the criminal context

tend both to be more frequent and to provoke stronger reactions from

states. This is probably due to a perception by most states that the exer-

cise of penal jurisdiction and the maintenance of a system of public

order are intimately connected to the core of the jurisdictional compe-

tence implied in state sovereignty. Given the frequency and intensity

of disputes in this area, therefore, considerable case law and literature

focus on jurisdiction in criminal cases.

However, altogether aside from the practical diff‌iculty of clearly dis-

tinguishing between “criminal” and “civil” exercises of jurisdiction,4

1 See, for example, Ch apter 7, Section s C(2)(g) and E(2).

2 See I. Brownl ie, Principles of Public Interna tional Law, 6th ed. (Oxford: Oxford

University Pre ss, 2003) at 297–98.

3 See, for example, M.N. Shaw, Inter national Law, 5th ed. (Cambridge: Cambr idge

University Pre ss, 2003) at 578–97; Brownlie, ibid. at 298–305; H. Kindred & P.

Saunders, eds., Inte rnational Law Chief‌ly a s Interpreted and Applied in Canad a,

7th ed. (Toronto: Emond Montgomery, 2006) at 548–50.

4 For example, is a contempt orde r made in a civil proceedin g civil or crimina l

in nature? And how doe s one classify variou s administrative or reg ulatory

proceedings wh ich may affect civil entit lements but may also car ry penal or

quasi-pen al consequences, such as f‌ine s?