State jurisdiction over persons, conduct, and events
| Author | John H. Currie, Craig Forcese, Joanna Harrington, Valerie Oosterveld |
| Pages | 475-521 |
475
CHAPTER 7
STATE JURISDICTION OVER PERSONS,
CONDUCT, AND EVENTS
A. INTRODUCT ION
State jurisdiction over territory should not be confused with state jurisdiction over per-
sons, conduct, and events within (or outside) that territory. While the effects of these
different types of jurisdiction will sometimes coincide, there is not always a complete
correspondence between them.
By “state jurisdiction over persons, conduct, and events,” we mean a state’s power
to regulate or control persons, conduct, and events, or to subject them to the power of
the state. Such state jurisdiction is commonly expressed in the form of domestic public
law provisions (for example, criminal, administrative, or constitutional law) that purpor t
to apply to persons and their activities. In other instances, state jurisdiction may come in
the form of domestic private law statutes or common law principles governing civil liabil-
ity between persons or civil relationships arising out of property or transactions. In both
cases, such state jurisdiction is often exercised with respect to persons, conduct, and
events within the state’s sovereign territory. However, this is not always the case, such
that international law provides rules on when it is acceptable for any given state to impose
this liability or control over persons or dealings abroad. As the Supreme Court of Canada
has explained:
Where a dispute i s wholly contained within the territory of one state, jurisdiction is not
an issue. However, disputes and events commonly have implications for more than one
state, and competing claims for jurisdiction can arise on grounds other than territoria lity,
which are, of course, extrater ritorial in nature.1
In order to understand the international legal boundaries for the exercise of state juris-
diction over persons, conduct, and events, it is important to make a definitional distinc-
tion. State jurisdiction may be subdivided into “enforcement jurisdiction” — the capacity
to enforce rules or take coercive action — and “prescriptive jurisdiction” — the capacity to
make rules regulating persons or their conduct. As we shall see, the permissible extent
of a state’s enforcement jurisdiction is very narrowly circumscribed in international law,
and is closely tied to its sovereign territory. On the other hand, states have substantial,
though not unlimited, latitude to prescribe conduct beyond their borders. Note that some
commentators identify “adjudicative or judicial jurisdiction” as a third division, with some
476 INTERNATIONAL LAW: DOCTRINE, PRACTICE, AND THEORY
judicial support;2 but other, authoritative voices subsume adjudicative jurisdiction within
the two categories of prescriptive and enforcement jurisdiction.3 The discussion below
follows the latter, two-category approach.
B. ENFORCEMENT JURISDICTION
Consider the implications of the following case for the extent of a state’s enforcement
jurisdiction:
The Case of the SS Lotus (France v Turkey) (1927), PCIJ (Ser A) No 10 at 18–19 [Lotus
Case]
[This case arose f rom a collision on the high seas between two ships, one French, the
other Turkish. The Turkish vessel sank, killing eight passengers and crew members.
The French steamer was also bad ly damaged but managed to put into the nearby port of
Constantinople (now Istanbul), where Turkish authorities arrested and charged one of its
officers with involuntar y manslaughter. The French officer was ultimately trie d and con-
victed of various offences relating to the collision under Turkish law in a Turkish court.
France brought a claim against Turkey cl aiming that it had exceeded its jur isdiction in
so acting. A s part of its argument, Fra nce contended th at there was a rule of cu stomary
international law that forbade Turkey from prosecuting a foreign national for criminal
acts occurr ing outside Turkish terr itory.]
. . . [I]t is not a question of stating principles which would perm it Turkey to take crimina l
proceedings, but of formulating the principles, if any, which might have been violated by
such proceedings.
This way of stating the question is also dictated by the very nature and exist ing condi-
tions of inte rnational law.
International law governs relations between independent States. The rules of law
binding upon States t herefore emanate from their own free wil l as expressed in conven-
tions or by usages generally accepted as expressing principles of law and established in
order to regulate the relations between these co-e xisting independent communities or
with a view to the achievement of common aims. Restric tions upon the independence of
States cannot therefore be presumed.
Now the first and foremost restriction imposed by international law upon a State is
that — failing t he existence of a permissive r ule to the contrary — it may not exercis e its
power in any form in the territor y of another State. In this sense jurisdiction is certa inly
2 See Steve Coughlan et al, “Global Reach, Lo cal Grasp: Constructing Extrater ritorial Jurisdiction in the Age
of Globalization” (2007) 6 CJLT 29 at 32, cited with sup port in Hape, above note 1 at paras 58 and 65.
3 See, for example, Vaughan Lowe & Christop her Staker, “Jurisdiction” in Malcolm D Evans, ed, Interna-
tional Law, 3rd ed (Oxford: Oxford Univer sity Press, 2010) at 313 (“It is doubtful whether it is neces-
sary to separate out this t ype of jurisdiction. . . . [A]ll of this can be analyze d in terms of prescriptive
and enforcement jurisdict ion. It seems unnecessary to introduce a separate cat egory of ‘jurisdiction
to adjudicate’. . . .”) See also James Crawford, Bro wnlie’s Principles of Public In ternational Law (Ox ford:
Oxford Universit y Press, 2012) at 456 [Brownlie’s Principles].
Chapter 7: State Jurisdiction ov er Persons, Conduct, and E vents 477
territorial; it cannot be exercised by a State outside its territory except by virtue of a per-
missive rule derived from inter national custom or from a convention. . . .
[The Court t hen went on to consider the rules of internat ional law related to prescript ive
jurisdiction. That port ion of the judgment is reproduced below in Section C: Prescript ive
Jurisdic tion.]
The Lotus Case reflects the generally accepted position in international law that a state may
not, as a general rule, enforce its laws or take other coercive action outside of its sover-
eign territory.4 We say “as a general rule” because, as suggested in the Lotus Case, the re
may be specific exceptions that permit the extraterritorial exercise of such jurisdiction. In-
deed, we have already seen in Chapter 5 some such exceptions in our examination of the
enforcement powers of states on the high seas or in other maritime zones outside their
territorial sea. Similar “permissive rules” of enforcement jurisdiction apply aboard aircraft
or spacecraft when they are not within any state’s sovereign territory. In contrast, the gen-
eral prohibition on extraterritorial enforcement jurisdiction is at its most absolute when it
comes to the exercise of such jurisdiction within another state’s territory: “The governing
principle of enforcement jurisdiction is that a state cannot take measures on the territor y
of another state by way of enforcement of its laws without the consent of the latter.”5
What happens if a state fails to honour this rule? What if one state’s agents apprehend
a fugitive within another st ate’s borders and then remove that person to face judicial pro-
ceedings before it s own courts, without the other state’s consent? Such an action would
constitute an undoubted violation of the restrictions placed by international law on the
extent of a state’s enforcement jurisdiction. Does this mean, however, that international
law requires the domestic courts of the apprehending state to decline to hear the case?
Consider the following cases from several states:
Attorney -General of the Government of Israel v Eichmann (1961), 36 ILR 5 (Dist Ct Jeru-
salem)
[Adolf Eichmann was a German Nazi and t he head of the Jewish Office of the German
Gestapo. As such, he was a key organizer of the Holocaust. Eichmann was apprehended
in Argentina in 1960 by persons acting on behalf of the Israeli government, and removed
to Israel without the consent of the Argentine government. In Israel, he was put on trial
before a domestic Israeli court for his role in the Holocaust.]
Adolf Eichmann has be en arraigned before thi s Court on charges of unsur passed grav-
ity — crimes against the Jewish people, cr imes against humanit y, and war crimes. The
period of the crimes ascribed to him, and their historical background, is that of the Hitler
régime in Germany and in Europe. . . .
4 This position, as expressed in the final par agraph of the excerpt from the Lotus Cas e reproduced above,
was endorsed by the Suprem e Court of Canada in Hape, above note 1 at para 65.
5 Brownlie’s Principles, above note 3 at 479. For example, states enforce their own laws on milit ary bases
they establish on the terr itory of foreign (host) states, with th e consent of those host states; the terms
of such consent are usually detaile d in a Status of Forces Agreement (SOFA) between the se nding and
host states.
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