LAWS 2601 Lecture Notes - Lecture 4: Universal Jurisdiction, Diplomatic Immunity, Diplomatic Law

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10 Feb 2016
Department
Course
LAWS2601C Class 4 – Feb. 2
Jurisdiction, Immunity
Outline
Jurisdiction
Principles of domestic
Immunities
State immunity
Diplomatic law
Domestic Jurisdiction
The principle of DJ describes the power of central authorities of a state to exercise public
functions over individuals located in a territory. In principle, States have jurisdiction to…
Prescribed laws
Enforce laws
Adjudicate
Jurisdiction to prescribe means:
That the state has power to enact laws/legislation that is binding upon individuals in the
State’s territory
In some matters, the state may implement legislation which is binding upon their
nationals living abroad (ex. taxation so if we move to the states we are still bound by
Canada’s tax laws)
Jurisdiction to enforce means:
The state has the power to compel compliance with their domestic laws
That the state cannot enforce its prescriptive jurisdiction in the territory of another State
unless agreed through IL (treaty or custom)
Jurisdiction to adjudicate means:
The state has the power to settle legal disputes through binding decisions
Customary IL recognizes that a state can exercise legal authority over:
1. Activities within the state (territorial principle)
There are two principles which compose the territorial principle: subjective and objective
a. Subjective territorial principle allows the exercise of jurisdiction by the State in
which a crime is commenced
b. Objective territorial principle gives jurisdiction to the State in which the crime
has been completed
2. Citizens of the state (nationality principle)
a. A state may exercise jurisdiction over any of its nationals wherever they may be
b. The jurisdiction will not be enforced until the national is physically within the
territory of the State
c. The State within which the crime was committed may also exercise jurisdiction
3. Foreign nationals for acts done abroad which harm nations of the state (passive
personality principle)
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a. A state may claim jurisdiction to try an individual for offences committed abroad
which have affected or will affect nationals of the state (ex. treason)
4. Foreign nationals for acts done abroad which affect the security of that State (protective
principle)
a. A state may exercise jurisdiction over foreign nationals who have committed an
act abroad which is deemed prejudicial to the security of the particular state
concerned (ex. espionage, counterfeiting, conspiracy to violate immigration laws)
5. A limited category of offenses recognized as being of universal concern (universality
principle)
Princeton Principles on Universal Jurisdiction, Principle 1.1
a. “universal jurisdiction is criminal jurisdiction based solely on the nature of the
crime, without regard to where the crime was committed, there nationality of the
alleged perpetrator, the nationality of the victim, or any other connection to the
state exercising such jurisdiction”
Princeton Principles on Universal Jurisdiction, Principle 1.2
b. “Universal jurisdiction may be exercised by competent and ordinary judicial body
of any state in order to try a person duly accused of committing serious crimes
under IL”
Serious of crimes of IL for which there exists universal jurisdiction include:
1. piracy
2. slavery
3. war crimes
4. crimes against peace
5. crimes against humanity
6. genocide
7. torture
There are two sources from which universal jurisdiction can spring
1. Treaty (Torture convention, art. 5.2)
2. Customary IL ex. universal jurisdiction over was crimes is supposed by widespread
state practice: national legislation criminalizing particular acts during war; prosecution
for was crimes in national…
Reasons for recognizing universal jurisdiction
1. Certain crimes are offensive to the entire international community but cannot be
prosecuted because perpetrators have little or no connection to a State’s territory
a. Ex. Pirates have long been treated as hostis humanis generis (enemies of all
mankind) and subject to prosecution and punishment wherever they are found
2. State exercising universal jurisdiction acts on behalf of the international community to
punish those who commit seriously international criminal acts
a. Eichmann case: prosecuted and convicted under Israeli law for Nazi war crimes
3. UJ promotes global accountability and combats legal impunity for international crimes
when states with closer links to the crimes are unable or unwilling to prosecute
a. Ex. dictator Pinochet committed crimes against humanity in Chile. Spain issued a
warrant for Pinochet’s arrest. While in the UK, Pinochet was arrested and
extradited by UK officials to Spain to stand trial
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