State Jurisdiction over Persons, Conduct, and Events
| Author | John H. Currie; Craig Forcese; Joanna Harrington; Valerie Oosterveld |
| Pages | 467-510 |
467
CHAPTER 7
State Jurisdiction over Persons, Conduct, and Events
A. INTRODU CTION
State jurisdiction over territory should not be confused with state jurisdiction over persons,
conduct, and events within (or outside) that territory. While the eects of these dierent
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 purport to apply to persons
and their activities. In other instances, state jurisdiction may come in the form of domes-
tic law statutes or common law principles governing civil liability 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 is 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 territoriality,
which are, of course, extraterritorial in nature.
Customary international law contains rules governing the exercise of jurisdiction by states.
In order to understand the international legal boundaries established by these rules for the
exercise of state jurisdiction over persons, conduct, and events, it is important to make a def-
initional distinction. 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 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 both within and beyond their borders. Note that
some commentators identify “adjudicative or judicial jurisdiction” as a third division, with
some judicial support; but other authoritative voices, particularly within the common law
R v Hape, SCC at para [Hape].
See Steve Coughlan et al, “Global Reach, Local Grasp: Constructing Extraterritorial Jurisdiction in the
Age of Globalization” () CJLT at , cited with support in Hape, above note at paras and.
468 INTERNATIONAL LAW: DOCTRINE, PRACTICE, AND THEORY
Commonwealth, subsume adjudicative jurisdiction within the two categories of the “juris-
diction to prescribe” and the “jurisdiction to enforce.” The discussion below follows the two
categories 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) (), PCIJ (Ser A) No at – [Lotus Case]
[This case arose from 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 badly damaged but managed to get to the nearby port of Constantinople
(now Istanbul), where Turkish authorities arrested and charged one of its ocers with
involuntary manslaughter. The French ocer was ultimately tried and convicted of various
oences relating to the collision under Turkish law in a Turkish court. France brought a
claim against Turkey, claiming that it had exceeded its jurisdiction in so acting. As part of
its argument, France contended that there was a rule of customary international law that
forbade Turkey from prosecuting a foreign national for criminal acts occurring outside
Turkish territory.]
[I]t is not a question of stating principles which would permit Turkey to take criminal
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 existing con-
ditions of international law.
International law governs relations between independent States. The rules of law
binding upon States therefore emanate from their own free will 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-existing independent communities or
with a view to the achievement of common aims. Restrictions upon the independence
of States cannot therefore be presumed.
Now the rst and foremost restriction imposed by international law upon a State is
that — failing the existence of a permissive rule to the contrary — it may not exercise its
power in any form in the territory of another State. In this sense jurisdiction is certainly
territorial; it cannot be exercised by a State outside its territory except by virtue of a per-
missive rule derived from international custom or from a convention.
The three categories approach also enjoys support in the United States: see American Law Ins titute,
Restatement of the Law Fourth, The Foreign Relations Law of the United States (St Paul, MN: American
Law Institute, ) at s .
See, for example, Christopher Staker, “Jurisdiction” in Malcolm D Evans, ed, International Law, th ed
(Oxford: Oxford University Press, ) at (“[A]ll of this can largely be analyzed in terms of
prescriptive and enforcement jurisdiction. A separate category of ‘jurisdiction to adjudicate’ is there-
fore not considered. . . .”) [Staker]. See also James Crawford, Brownlie’s Principles of Public International
Law, th ed (Oxford: Oxford University Press, ) at [Brownlie’s Principles].
Chap ter : State Juris diction over Persons, Cond uct, and Events 469
[The Court then went on to consider the rules of international law related to prescriptive
jurisdiction, as further excerpted below in Section C.]
The Lotus Case reects 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 sovereign
territory. We say “as a general rule” because, as suggested in the Lotus Case, there may be
specic exceptions that permit the extraterritorial exercise of such jurisdiction. Indeed, we
have already seen in Chapter 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 general 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 territory of another state by way of
enforcement of its laws without the consent of the latter.”
What happens if a state fails to honour this rule? What if one state’s agents apprehend a
fugitive within another state’s borders and then remove that person to face judicial proceed-
ings before its own courts, without the other state’s consent? Such an action would consti-
tute 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 fol-
lowing cases from several states:
Attorney-General of the Government of Israel v Eichmann (), ILR (Dist Ct Jerusalem)
[Adolf Eichmann was a German Nazi and the head of the Jewish Oce of the German
Gestapo. As such, he was a key organizer of the Holocaust. Eichmann was apprehended
in Argentina in 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 been arraigned before this Court on charges of unsurpassed
gravity — crimes against the Jewish people, crimes against humanity, 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. . . .
The . . . contention of learned defence counsel was that the trial of the accused in
Israel following upon his kidnapping in a foreign land, is in conict with international
law and takes away the jurisdiction of this Court. Counsel argued that the accused, who
had resided in Argentina under an assumed name, was kidnapped on May , , by
agents of the State of Israel and forcibly brought to Israel. . . . He summed up his sub-
mission by contending that the Court ought not to lend its support to an illegal act of
the State, and that in these circumstances the State of Israel has no jurisdiction to try
the accused. . . .
This position, as expressed in the nal paragraph of the excerpt from the Lotus Case reproduced above,
was most recently endorsed by the Supreme Court of Canada in Hape, above note at para .
Brownlie’s Principles, above note at . For example, states enforce their own laws on military bases
they establish on the territory of foreign (host) states, but do so with the consent of those host states;
the terms of such consent are usually detailed in a Status of Forces Agreement (SOFA) between the
sending and host states.
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