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Sovereignty and
Jurisdiction
Leo Bernard, ANCORS
What is sovereignty?
“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 functions of a State.” (Island of Palmas case, Netherlands v US, 1928)
Sovereignty
- Sovereignty is the exclusive right to exercise supreme political authority (legislative, judicial and executive) over acts and events within a territory.
- Since it is the exclusive right, it means that no other State can have formal political authority within that State.
- Therefore, sovereignty is closely associated with the concept of political independence.
- This right is usually described as “territorial sovereignty”.
Sovereignty Claims
- Classical international law developed doctrines by which States could make a valid claim of sovereignty over territory.
- During the period of Western colonial expansion new territories and islands were subject to claims of sovereignty by discovery and occupation.
- Sovereignty could also be transferred to another State by conquest (use of force) or by cession.
- If the Western colonial powers recognized a ruler in an overseas territory as the sovereign, they would often enter into a treaty of cession with the ruler by which sovereignty over the territory would be ceded in to the Western colonial power.
- Problems often developed because the peoples in those territories did not fully understand the Western European concepts of sovereignty and cession.
What power do states have to make rules?
- Ie. when and where is a State able to make and apply its own laws?
- This is a question of Jurisdiction: the ability of a State to make and enforce laws through its national legal institutions.
- Two types of jurisdiction:
- Prescriptive – the power to regulate an activity or behaviour
- Enforcement – the power to enforce rules – ie to arrest, try, convict and punish for infringements Sovereignty Jurisdiction Exclusive Right to Exercise Supreme Political Authority (legislative, judicial and executive) over acts and events within a territory Jurisdiction is the power of a State to govern its persons and property by its national laws States have sovereignty over their land territory, airspace above their land territory Prescriptive Jurisdiction Enforcement Jurisdiction
Bases of jurisdiction under International Law
- Territory
- Nationality
- Protective
- Universal
- Passive Personality Territorial Jurisdiction
- ‘A nation possesses and exercises within its
own territory an absolute and exclusive
jurisdiction’
- The ‘effects doctrine’ - claim jurisdiction over
activities outside its territory which have an effect
within its territory
Universal jurisdiction
- It is accepted that there is a narrow category of
crimes over which States may assert jurisdiction
based upon the universality principle.
- All States have jurisdiction over offenders, no
matter their nationality and no matter where the
offence was committed.
- There is universal jurisdiction over crimes such
as genocide and war crimes, giving any State
which the right to assume jurisdiction.
Passive personality jurisdiction
- The most controversial basis for jurisdiction is the
passive personality principle, which establishes
jurisdiction based on the nationality of the victim.
- Very few States attempt to extend the reach of their
criminal laws to situations where there only link to
the crime is that their national was the victim.
- However, there is a recent trend to base jurisdiction
based on the passive personality principle when a
State’s nationals are the targeted by terrorists.
- Modern counter-terrorism treaties establish
jurisdiction among State Parties based on the
presence of the offender within their territory.
Principle of Territorial Jurisdiction All States have both prescriptive and enforcement jurisdiction over all persons, property and events occurring within its territory Principles of Extraterritorial Jurisdiction under International Law Nationality States are allowed to prosecute its nationals for crimes for crimes committed anywhere in the world Passive Personality States are allowed to prosecute a foreigner for a crime committed outside its territory against one of its own nationals Protective Personality States are allowed to prosecute a limited range of crimes committed by foreigners outside its territory where the crime prejudices its vital interests Universal Jurisdiction States are allowed to prosecute certain crimes committed by foreigners outside the State’s territory and having no impact on the State How does this work in the Maritime space?
- Territory – land territory is the basis of maritime
zones
- Nationality - states have jurisdiction over
individuals and ships that hold their nationality
(for ships, this is the state they are ‘flagged’ to)
Diplomatic Immunity
- The principle of diplomatic immunity provides that the diplomatic agents of the sending State have complete immunity from the criminal jurisdiction of the receiving State.
- The immunity of the diplomatic agent is not personal to the diplomatic, but belongs to the State.
- Therefore, the immunity of a diplomat can be waived by the sending State.
- Also, the receiving State has the right to expel any diplomatic agent from its country by declaring them persona non grata.
Foreign Embassies
- A foreign embassy is under the territorial sovereignty of the receiving State, and the laws of the receiving State apply to acts within the embassy.
- However, diplomatic relations law provides that the premises of an embassy or diplomatic mission as well as its records and archives are inviolable.
- This means that the authorities of the receiving State cannot enter a foreign embassy without the express permission of the head of mission, even in the case of an emergency.
- Similarly, “diplomatic bags” are inviolable and cannot be opened by the receiving State.
- This is necessary to ensure that the embassy officials can communicate with their home country in secrecy.
Questions?
