State Jurisdiction
| Author | John H. Currie |
| Pages | 332-362 |
CHAPTER 8
STATE JURISDICTION
A. INTRODUCTION
The exerci se of jurisdiction over persons, conduct, property, and re-
sources is one of the more important manifestat ions 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 exert s
its sovereign will within its own part icular 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 t he world were t ruly m ade
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 r ules delineating the permissible
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State Juris diction 333
jurisdictional reach of each state. In other words, it is neces sary 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 r ules governi ng the allowable base s and extent of st ate
jurisdiction have emerged in customary international law. These have
been supplemented either by special t reaty or customary regi mes pro-
viding for particular juris dictional 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 jurisdict ional reach of states more broadly.
As we shall see, the customar y rules governi ng 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 w ith that of another.2 The approach
is therefore similar to that taken by intern ational law in evaluating any
given state’s claim of sovereignty over territory: the rel ative merits of
the competing claims govern the outcome in any particular case, rather
than any abstract and absolute finding of jurisdiction.
Some text s approach this topic by drawing a distinction between
“criminal” juri sdiction on the one hand and “civil” jurisdiction on the
oth er.3 It is true t hat jurisdictional conflicts in the cri minal context
tend both to be more frequent and to provoke stronger re actions from
states. This is probably due to a perception by most states that the exer-
cise of penal juri sdiction and the maintenance of a system of public
order are intimately connected to t he core of the jurisdictional compe-
tence implied in state sovereignty. Given the frequency and intensity
of disputes in this area, therefore, considerable ca se law and literature
focus on jurisdiction in cr iminal 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?
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