Bassiouni: Theories of Jurisdiction and Their Application in Extradition Law

THEORIES OF JURISDICTION AND THEIR

APPLICATION IN EXTRADITION
LAW AND PRACTICE*
M. CHERIF BASSIOUNI**
Extradition, whether by treaty, reciprocity or comity, is
premised on the assumption that the interests of a given state
have been affected by the conduct of a given individual who is not
within that state's jurisdiction but within the jurisdiction of an-
other state. The issue of extradition is, therefore, of utmost in-
ternational significance. Yet few, if any, treaties refer to theories
of jurisdiction except to the extent of using such terms as juris-
diction or territory without further clarification. The assumption
stated above presupposes that: (1) the interests of the request-
ing state have been affected in such a manner that it seeks to sub-
ject the individual in question to its jurisdictional authority; and
(2) the state wherein the sought individual is located has no
greater interest in that person. Consequently, the requested state
will not shield that person from the jurisdictional control of the
requesting state by denying its extradition request. This balanc-
ing of interests theory bears upon the granting or denying of ex-
tradition and also on the outcome of conflicting jurisdictional
claims.
The term jurisdiction in international law refers to two as-
pects of the authoritative decision making process; the first is
rule-making and the second is rule-enforcing. Both of these as-
pects are present in extradition because the setting in motion of
the process presupposes that the requesting state has a legal ba-
sis to exercise its authoritative control over the individual be-
cause: (1) it has jurisdiction over the subject matter of a given
interest which has been or is being affected by the conduct of
* This article is based upon research material which will appear as a chap-
ter in the author's book entitled INTERNATIONAL EXTRADITION AND WORLD PUBLIC
ORDER, published by A.W. Sijthoff International Publishing Company, Leiden,
Netherlands and Oceana Publications, Inc., Dobbs Ferry, N.Y.
** Professor of Law, DePaul University; Secretary-General, International
Penal Law Association. LL.B., Cairo University; J.D., Indiana University,
Indianapolis; LL.M., John Marshall Law School; J.S.D., George Washington
University. Member, Illinois and District of Columbia Bars.

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CALIFORNIA WEsTERN INTERNATIONAL LAW JOURNAL Vol. 5

the person sought; and (2) that once surrendered that state
would have in personam jurisdiction over that person. Conse-
quently, it requests the state which has actual jurisdictional control
over the individual to formally surrender that individual and re-
linquish jurisdiction over him or her.
The first substantive aspect of extradition is, therefore, the
determination of the requesting state's jurisdiction over the sub-
ject matter for which the individual is sought. Theories of ju-
risdiction will therefore be discussed to determine whether under
international law and the national laws of the requesting state
such jurisdiction exists and whether under international law and
the national laws of the requested state the individual should be
surrendered.
Prior to initiating a request for the surrender of an individ-
ual, a state first determines its jurisdiction over the subject matter of
the alleged conduct perpetrated by the relator. This inquiry is made
on the grounds that the state of refuge, which has jurisdictional con-
trol of the individual sought by the requesting state, will not enter-
tain an extradition request unless it determines that the requesting
state will have such jurisdiction over both the subject matter and
the individual if and when that person is returned to face those
charges alleged in the request. Because of this requirement which
chronologically precedes the initiation of the formal process, the
existence of jurisdiction is a condition precedent both to the re-
quest and to the granting of extradition.
It is universally recognized that every state has the power to
regulate conduct within its territory and, beyond it, such other
conduct which affects its legitimate interests. The power of
a state to proscribe conduct within its territory and such
other conduct which affects its interests is a concomitant to the
principle of sovereignty.' Thus, the interrelationship between
1. 1 L. OPPENHEiM, INTERNATIONAL LAw 263 (8th ed. Lauterpacht 1955)
[hereinafter cited as OPPENHEIM]. Eagleton, in his book on international govern-
ment states:
The most important right-and duty-of a state is jurisdiction. It is sol-
idly established in jurisprudence. . . . From the viewpoint of sover-
eignty, jurisdiction means internal sovereignty, exclusive control over all
persons and things within its territory. There are, of course, restrictions,
even upon the internal administration of a state, set by international law
and they are constantly increasing in number as the needs of the commu-
nity rise above the claims of the state. "The extent of both the right
and the duty of a State to do justice within its own domain, as well as
elsewhere, is also fixed by international law." The jurisdiction of a state
is simply the amount of control left to that state by the community of
nations; or, if the statement be preferred, the powers reserved to the

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sovereignty and jurisdiction delineates the extent and limits of

a state's power to proscribe conduct in relationship to other states.
However, since conduct performed by individuals or legal entities
may be committed within and without the given territory of a state
and can affect any one or more interests of any one or more states,
the power to proscribe conduct may rest on several theories and
consequently result in potential conflicts. These jurisdictional con-
flicts assume an international character, giving rise to the need for
solutions or guidelines for the resolution of these conflicting
jurisdictional claims.
There are five theories of jurisdiction recognized by interna-
tional law as giving rise to rule-making and rule-enforcing power
by national authoritative decision-making processes. These the-
ories enjoy varying degrees of recognition with respect to rule-
making and rule-enforcing. They are: (1) Territorial, based on
the place of commission of the offense; (2) Active Personal-
ity or Nationality, based on the nationality of the accused; (3)
Passive Personality, based on the nationality of the victim; (4)
Protective, based on the national interest affected (and as such
is related to the passive personality); and (5) Universality,
based on the international character of the offense.

I. TERRITORIAL JURISDICTION AND ITS EXTENSIONS

The theory of territorial jurisdiction, often referred to as the

states after they have delegated to the community the exercise of certain
powers. In practice, vast powers are left to the states, and the commu-
nity interferes very little with their internal administration. It should
be noted that the state not only administers its own affairs, but acts also
as the agent of the community of nations to enforce international law
within its territory.
EAGLETON, INTERNATIONAL GOVERNMENT 87-88 (3rd ed. 1957).
Another authority concludes:
[A]U states have certain sovereign powers which they can exercise
without transgressing the rights of other states under international law.
If they fail to exercise these powers, it is because either they have volun-
tarily placed a disability on that exercise, perhaps in the form of a do-
mestic constitutional limitation or they have not considered it necessary,
as a practical matter, to exercise their powers.
George, ExtraterritorialApplication of Penal Legislation, 64 MIcH. L. REv. 609,
612 (1965-66) [hereinafter cited as George].
Article 2 of the Draft Declaration on Rights and Duties of States, prepared
in 1949 by the International Law Commission of the United Nations, recites:
"Every State has the right to exercise jurisdiction over its territory and over all
persons and things therein, subject to the immunities recognized by international
law." REPORT OF THE INTERNATIONAL LAW COMMISsIoN, 1st Sess., 1949 (A1925),
June 24, 1949, at 7-8; YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 1949,
at 287.

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CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL Vol. 5

territorial principle because of its universal recognition, is the

precept by which a state prescribes and enforces rules of conduct
within its physical boundaries. This principle, more than any
other, is a concomitant of sovereignty; and, therefore, all states
adhere to the territorial principle. Hence it is upon the two tenets
of sovereignty and equality of sovereigns that the principle of terri-
torial jurisdiction is founded.
Every state exercises jurisdiction over all persons whether
they be nationals, resident or nonresident aliens, associa-
tions or legal entities other than natural persons, and objects tan-
gible or intangible within its physical boundaries. The right to
prescribe and enforce rules of conduct within a state is not, how-
ever, absolute, since certain limitations exist which restrict or
compete with the exclusive jurisdiction of states. These limita-
tions may be self-imposed limitations under municipal law or
those imposed by international law. It is universally recognized
that states are competent to declare conduct as violative of their
interests and embody that precept into national legislation and,
therefore, punish all offenses committed in or within the said ter-
ritory. As stated by Whiteman:
While a state which has an offender against its laws in custody
can prosecute him for offenses committed within its jurisdic-
tion, as it defines that jurisdiction, difficulties may arise when
it attempts to extradite an offender from a country which does
not share its concept of criminal jurisdiction. Many states
have, under their laws, jurisdiction to punish their nationals
for offenses committed anywhere, whereas common law coun-
tries, such as the United States and Great Britain, exercise
jurisdiction, generally, only over crimes committed within
their territory. Accordingly, these latter countries usually ap-
ply their concept of jurisdiction and limit, either specifically
or by interpretation of the extradition agreement involved,
their obligation to grant extradition to cases where, were the
circumstances reversed, they would have jurisdiction over the
2
offense.
The interrelationship of sovereignty and territorial juris-
diction was stated by Chief Justice Marshall in the case of the
Schooner Exchange v. McFaddon:
The jurisdiction of the nation, within its own territory, is nec-
essarily exclusive and absolute. It is susceptible of no limita-
tion not imposed by itself. Any restriction upon it, deriving
2. 6 M. WHITEMAN, DIGEST OF INTERNATIONAL LAW, 889-90 (1968).

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validity from an external source, would imply a diminution

of its sovereignty to the extent of its restriction, and an invest-
ment of that sovereignty, to the same extent, in that power,
which could impose such restriction. 3
This absolutist position, adopted by Chief Justice Marshall, has
been carried rather consistently throughout United States extra-
dition law and practice, even though it is challengeable in its ex-
clusiveness.
Treaties, as well as the writing of some scholars, use the
terms "territory" and "jurisdiction" interchangeably; however it
is indispensable to establish that territory and jurisdiction do not
have the same juridical meaning. "Jurisdiction" is a legal theory
whereby a political entity, namely a state, claims the power to pre-
scribe and enforce its laws, while "territory" is the physical sphere
of exercise of that power to prescribe and enforce.
There are numerous cases in which a distinction has been
drawn between the two concepts in the context of treaty interpre-
tation. In one such instance, the Judicial Committee of the
Privy Council refused the surrender of one Kossekechatko and
others to France which had exercised its jurisdiction over the real-
tors and had found them guilty. England held that Article I of
the 1878 Extradition Treaty with France applied only:
[T]o crimes committed within the territory of the power . . .
seeking extradition . . . . In -their Lordships' opinion
no one of the appellants was liable to be extradited under
the treaty, unless the crime of which he was convicted was,
in fact, committed within the territory of the French Repub-
lic.4
Similar views had been expressed by the Attorney General
of the United States in the case of In re Stupp in 1873, when he
recommended:
I am quite clear that the words "committed within the juris-
diction," as used in the treaty, do not refer to the personal
liability of the criminal, but to locality. The locus delicti, the
place where the crime is committed, must be within the ju-
risdiction of 'the party demanding the fugitive.5
As indicated above, "jurisdiction" refers equally to rule-mak-
ing and rule-enforcing. In both cases the same condition ex-
3. 11 U.S. (7 Cranch) 116 (1812).
4. 1 J. MooRE, A TREATISE ON EXTRADITION AND INTERSTATE RENDITION,
135 (1891).
5. 23 F. Cas. 281 (No. 13562) (C.C.S.D. N.Y., 1873).

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CAL FoRN WEsrERN INTERNAToNAL LAW Jo RNAL Vol. 5

ists, namely: the authoritative decision-making body must ex-

ercise a certain dominion and control over the territory to which
it claims that such power extends. A question arises as to
whether the two aspects of jurisdiction, rule-making and rule-
enforcing, must co-exist concurrently within the same territorial
sphere over which dominion and control is exercised by a given
state.
There is probably no more illustrative case than In re Lo-
Dolce.6 In that case, during World War II, Major Holohan and
Sergeant Lo Dolce of the United States Army were assigned to
a mission behind enemy lines in German occupied Italy. Major
Holohan was reported killed on this mission. After the war
ended, it was alleged that the Sergeant had killed him. Lo Dolce,
who returned to live in New York, could not be charged under
the Uniform Code of Military Justice because he was no longer
subject to its jurisdiction.7 He could not be tried in the United
States because the alleged crime had not been committed within
the territorial jurisdiction of the United States. The United States
did not rely on the application of any other doctrine or theory
of jurisdiction except the territorial principle; hence Lo Dolce
could only be tried where the alleged crime took place. The Ital-
ian authorities, therefore, requested the extradition of Lo Dolce
in 1952 pursuant to the Treaty of 1869 then in force between
Italy and -the United States. The court recognized the criminality
of the acts charged and that they fell under the treaty provisions.
But the court felt that Italy had no jurisdiction because the 'terri-
tory wherein the alleged crime took place was then under the con-
trol of the German forces which occupied it. Therefore, Italy
exercised no dominion and control at -that time over that territory
and thus had no "jurisdiction" over that territory when -the alleged
crime was committed. Consequently, Italy could not be granted

6. 106 F. Supp. 455 (W.D.N.Y. 1952). See also In re Martin [1925-1926]

Ann. Dig. 303-304 (No. 229) (Royal Hungarian Criminal Court of Budapest,
Hungary), wherein Czechoslovakia requested the extradition from Hungary of
one Martin M. who was accused of having committed larceny in January and Feb-
ruary, 1921, at a location within formerly Hungarian territory but which was
ceded to Czechoslovakia by the Treaty of Trianon which came into force on July
21, 1921. Extradition was requested as an act of comity, there being no extradi-
tion treaty between the two countries. The Hungarian Court held that extradition
could not be granted since the crime had been committed in Hungarian territory.
See also United States v. Icardi, 140 F. Supp. 383 (D.D.C. 1956).
7. M. C. BASSIOUNI, CimuINAL LAW AND rrs PROCESSES, 573-83 (1969).

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the surrender of Lo Dolce since he was not amenable to Italian

jurisdiction when he allegedly committed the crime.
If Germany would have attempted to extradite Lo Dolce it
probably would have failed. Most likely it would have been ar-
gued, inter alia, that Germany had no present jurisdiction to en-
force any laws which it would have had jurisdiction to enforce at
the time the violation occurred. It is also doubtful that German
laws would have made the killing of an enemy officer a crime.
However, if they held the act not to be part of the war or as justified
by military laws and international rules of armed conflicts, they
could have prosecuted him. The question of dominion and con-
trol as a basis for territorial jurisdiction was also in part relied
upon in the denial of the surrender of one Artukovic to Yugo-
slavia for alleged crimes committed in that country during World
War I.
The territorial principle has several extensions and applica-
tions which will be discussed below.

A. Special Status Territories

The term "territory" is often a dependable variable of the
notion of jurisdiction, that is, the power to exercise dominion and
control over a determinable physical area. Consequently, this
power to exercise jurisdiction will extend to certain various terri-
tories whose legal status may vary. Such is the case of certain
territories which by reason of exceptional circumstances or special
conditions are called "Special Status Territories". A factor com-
mon to all cases of "Special Status Territories" is that the area,
over which the jurisdictional control of one state extends, is usu-
ally excepted from that of another state's control either in whole
or in part and varying in extent and duration. This usually oc-
curs from the existence of peculiar circumstances, such as mili-
tary occupation, treaty or other arrangements. The term "Special
Status Territories", therefore, does not include "Special Environ-
ments". 9
Section 3185 of Title 18, United States Code, makes provi-
sion for the return from the United States to "any foreign coun-

8. United States ex rel. Karadzole v. Artukovic, 170 F. Supp. 383 (S.D.

Cal. 1959).
9. See discussion of "Special Environments" in text accompanying notes
117-141, infra.

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try or territory or any part thereof ' 10 occupied by or under the

control of the United States of any person found in the United
States who is charged with committing any of certain enumerated
offenses in violation of the criminal laws in force in such foreign
country or territory. Such return is made upon the written requi-
sition of "the military governor or other chief executive officer
in control of such foreign country or territory." 11 Provision is
made for proceedings "before a judge of the courts of the United
States only, who shall hold such person on evidence establishing
probable cause that he is guilty of the offense charged"' 2 and that
the person so held shall be returned "on the order of the Secretary
of State of the United States.""
The application of this authority extended to occupied zones
in Germany. In the case of In re Kraussman14 the court stated:
The question which presents itself here is whether or not this
right of the courts to continue to function -in the heart of a
foreign nation whose sovereignty has been restored, is occupa-
tion or control of part of that country by the United States
within the intent and purpose of the extradition statute, Sec-
tion 3185. I do not think so. The occupation and control
mentioned in the statute refers to full governmental authority
based upon a dominating police or military force which makes
the authority effective. . . . The United States High Com-
mission is not now in the words of the statute the "chief ex-
ecutive officer in control of such foreign country."
Although the treaty excludes Berlin and Germany as a
whole, the fair implication to be drawn from this exclusion
is that the retention of powers by the signatories is principally
for the purpose of dealing with the Soviet Republics relative
to the reunification of Germany and a peace treaty, and that,
in so far as it is practically possible, local governmental au-
thority will be turned over to the Federal Republic of Ger-
many as soon as and to the extent that it is feasible. The
Government has offered no proof that the situation in the
American Sector of Berlin is factually different from this.
Therefore, in the face of a retention of joint over-all power
de jure and a policy de facto to turn over to the Federal Re-
public of Germany as much of the administration of local gov-

10. 18 U.S.C. § 3185 (1969).

11. Id.
12. Id.
13. Id.
14. 130 F. Supp. 926 (D. Conn. 1953).

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ernment as possible, it cannot be said that the situation is one

which comes within Section 3185.'5
Whenever there is jurisdiction over a military base or terri-
tory, the state having such authority can prosecute the violator,
repatriate him to the mother country for trial, or seek his extradi-
tion by treaty or comity if he escapes to another state. 16 In addi-
tion to military occupation, territories may be leased by agree-
ment, whether for military or non-military purposes, and such an
agreement may have an extra-territorial clause or a special juris-
diction clause permitting the lessee-state to exercise jurisdiction
over the leased territory, completely, partially, concurrently or
with respect to its nationals only. Such an example is the Guan-
tanamo base. Article IV of the Lease Agreement, signed on July
2, 1903, by the United States and Cuba, under which the United
States was granted the right to establish and maintain a naval sta-
tion at Guantanamo, provides:
Fugitives from justice charged with crimes or misdemeanors
amenable to Cuban law, taking refuge within said areas, shall
be delivered up by the United States authorities on demand
by duly authorized Cuban authorities.
On the other hand the Republic of Cuba agrees that fu-
gitives from justice charged with crimes or misdemeanors
amenable to United States law, committed within said areas,
taking refuge in Cuban territory, shall on demand, be deliv-
17
ered up to duly authorized United States authorities.
The same basis for jurisdiction, established by a treaty, exists
between the United States and the Philippines in the Military
Bases Agreement of 1947. This treaty contains provisions re-
garding jurisdiction over offenses and the delivery of fugitives
to the authorities having jurisdiction over the particular offenses.
Article XIII, Paragraph 7 ot the Military Bases Agreement of
1947 between the United States and the Phippines provides that:
7. The United States agrees that it will not grant asylum in
any of the bases to any person fleeing from the lawful juris-
diction of the Philippines. Should any such person be found
in any base, he will be surrendered on demand to the com-

15. Id., at 928-29.

16. 6 M. WHITEMAN, DIGEST OF INTERNATIONAL LAW, 740-48 (1968).
17. Lease of Certain Areas for Naval and Coaling Stations, July 2, 1903,
art. IV, T.S. No. 426; 6 C. BEVANS, TREATIES AND OTHER INTERNATIONAL AGREE-
MENTS OF THE UNITED STATES OF AMERICA, 1776-1949, 1120, 1121, (1971); S.
Doc. No. 357, 61st Cong., 2d Sess. 360, 361 (1910).

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petent authorities of the Philippines.18

Even though the state enjoying special status rights over a
given territory can exercise its jurisdiction within the framework
of the existing agreement between the respective states, it
does not have to exercise it. In the case of Wilson v. Girard,19
the Supreme Court recognized the right of the United States act-
ing through its agents to waive jurisdiction over an American cit-
izen and to relinquish it to Japan even though the territory
wherein the crime was committed was a United States military
installation which by treaty was excepted from Japan's territorial
jurisdiction. The District Court held that since Girard's act was
committed in the performance of official duty he was, under
United States law, "accountable only -toUnited States federal juris-
diction 2 0 and his delivery to the Japanese authorities would be
"illegal and in violation of the Constitution and laws of the United
States."12
However, the Supreme Court of the United States, noting
that "[a] sovereign nation has exclusive jurisdiction to punish
offenses against its laws committed within its borders, unless it
expressly or impliedly consents to surrender its jurisdiction,"2 2 re-
versed the judgment of the District Court stating:
The issue for our decision is therefore narrowed to the
question whether, upon the record before us, the Constitution
or legislation subsequent to the Security Treaty prohibited the
carrying out of this provision authorized by the Treaty for
waiver of the qualified jurisdiction granted by Japan. We
18. 61 Stat. 4019, 4026; 43 U.N.T.S. 271, 288. In Williams v. Rogers, 449
F.2d 513 (8th Cir. 1971), the Court of Appeals held that Article XIII of the 1947
Agreement, amended in 1965, provides the specific jurisdictional and procedural
basis for arrest, trial and custody of United States military personnel accused of
committing offenses in the Philippines. Relying on Valentine v. U.S. ex rel.
Neidecker, 299 U.S. 5 (1936), the court held that this treaty also provides the
basis for transferring to the Philippines military personnel for prosecution by
Philippines judicial authority without the need for an extradition treaty or the
need to pursue extradition procedures. The court, in fact, held that the agreement
could serve as a substitute for an extradition treaty. Also, military transfers of
personnel from the United States to the Philippines to be prosecuted under the
terms of the agreement were found not to require compliance with the extradition
procedures that would be applicable to non-military personnel in the United States.
This is a novel approach which appears to be unprecedented in the annals of
United States extradition practice.
19. 354 U.S. 524 (1957).
20. Girard v. Wilson, 152 F. Supp. 21, 27 (D.D.C. 1957).
21. Id.
22. Wilson v. Girard, 354 U.S. 524, 529 (1957).

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find no constitutional or statutory barrier to -the provision as

applied here. In the absence of such encroachments, the wis-
dom of the arrangement is exclusively for the determination
2
of the Executive and Legislative Branches. 3
The Girard case arose under a special agreement with Ja-
pan, namely the Security Treaty of 1952;24 however, the problems
raised in that case are no different from those of Status of Forces
Agreements (S.O.F.A.), the North Atlantic Treaty Organization
(N.A.T.O.), or other bilateral agreements.
As to N.A.T.O., the North Atlantic Treaty of April 4, 1949,
specifically says "that the forces of one Party may be sent,
by arrangement, to serve in the territory of another Party. '2 5 The
parties agreed in article VII of the Status of Forces Agreement of
June 19, 1951, that:
5. -(a) The authorities of the receiving and sending
States shall assist each other in the arrest of members of a
force or civilian component or their dependents in the terri-
tory of the receiving State and in handing them over to the
authority which is to exercise jurisdiction in accordance with
26
-theabove provisions.
B. Subjective-Objective TerritorialTheory
Traditional Anglo-American practice has followed the gen-
eral principle of territorial jurisdiction 27 with respect to both na-
tionals and aliens who have violated federal or state law even
when all or part of the acts were committed outside its territory 28
23. id., at 530.
24. Security Treaty between the United States and Japan, September 8,
1951, [1952] 3 U.S.T. 3329, T.I.A.S. No. 2491.
25. North Atlantic Treaty, April 4, 1949, [1949] 63 Stat. 2241, T.I.A.S.
No. 1964.
26. North Atlantic Treaty, Status of Forces, June 19, 1951 [1953] 4 U.S.T.
1792, 1800, T.I.A.S. 2846. See also Baxter, Criminal Jurisdiction in the NATO
Status of Forces Agreement, 7 INT'L & COMp. L.Q. 72 (1958). It should be noted
at this point that most states claim jurisdiction over members of their armed
forces, both nationals and non-nationals, regardless of their current location.
See RESTATEMENT (SEcoND) OF FOREIGN RELATIONS LAws OF THE UNITED STATES
§ 31(b) (1965). [hereinafter referred to as RESTATEMENT]. Since conflicts of
jurisdiction can result from the presence in one state of members of the military
of another state, "status of forces" agreements are usually concluded between the
two countries. See also Coker, The Status o1 Visiting Military Forces in Europe:
NATO and SOFA, A Comparison, in II A TREATISE ON INTERNATIONAL CRIM-
INAL LAw, 115 (Bassiouni and Nanda ed., 1973).
27. See RESTATEMENT, supra note 26, §§ 18,
20.
28. Strassheim v. Daly, 221 U.S. 280 (1911); United States v. Aluminum
Co. of America, 148 F.2d 416 (2nd Cir. 1945). For an earlier opinion contrary

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CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL Vol. 5

provided its effects were within the territory. The fact that a
crime was not entirely consummated within the state's territory,
or that the preparation for or effects of the crime occurred in an-
other state, does not prevent the territorial state wherein some of
the acts or results occurred from asserting jurisdiction.2 9 These
extensions of the territorial principle have been such that it is
often difficult to distinguish between cases relying on this theory
or other theories such as protective or nationality. Indeed,
United States courts have freely extended the territorial principle
in many cases to where it would have appeared that another
theory would be more appropriate. Among such cases are those
in which United States citizens have committed violations of the
United State's law outside of United States territory but having
some effect within the United States. Usually, these cases have
involved acts detrimental to United States national security 0 or
economic interests"' as well as other categories of violative con-

to these cases, see American Banana Co. v. United Fruit Co., 213 U.S. 347
(1909). See United States v. Baker, 136 F. Supp. 546 (S.D.N.Y. 1955) wherein
the court distinguished the earlier case of United States ex rel. Mavka v. Palmer,
67 F.2d 146 (7th Cir. 1933), and ordered an alien deported for having made false
statements under oath to an American Consul abroad while applying for a pass-
port. The Court stated, "But deporting an alien for perjury is far different from
indicting and trying him for a crime committed abroad." 136 F. Supp. 546, 548
(S.D.N.Y. 1955). In 1968, on the same issue, the Second Circuit Court of Appeals
held in United States v. Pizzarusso, 388 F.2d 8 (2nd Cir. 1968), that a perjured
statement before a United States Consul abroad subjected such a person to prose-
cution in the United States. For acts of aliens committed wholly abroad, but with
effect within the United States, see Rocha v. United States, 288 F.2d 545 (9th
Cir. 1961) cert. denied 366 U.S. 948 (1961) and for a conspiracy in Canada hav-
ing effect in the U.S., see Rivard v. United States, 375 F.2d 882 (5th Cir. 1967).
In this case defendants were extradited from Canada to the United States for con-
spiring in Canada to smuggle heroin in the United States.
29. See article 3 in HarvardDraft Convention on Jurisdiction with Respect
to Crime, 29 AM. J. INT'L L. Supp. 435 (1935). [hereinafter cited as Harvard
Draft Convention], and RESTATEMENT, supra note 26, § 17.
30. See, e.g., Chandler v. United States, 171 F.2d 921 (1st Cir. 1948), cert.
denied, 336 U.S. 918 (1949); Gillars v. United States, 182 F.2d 962 (D.C. Cir.
1950); Kawakita v. United States, 343 U.S. 717 (1952).
31. In United States v. Sisal Sales Corporation, 274 U.S. 268 (1927), a fed-
eral court enjoined the defendant American corporations from conducting in Yu-
catan various activities designed to control the exportation of Sisal to the United
States from Mexico and to monopolize the market both inside and outside the
United States in violation of provisions of the Sherman Anti-Trust Act. In Steel
v. Bulova Watch Co., 344 U.S. 280 (1952), a federal district court in Texas was
held to have jurisdiction over a suit by an American watch company to enjoin a
United States citizen from using the company's trademark, registered under United
States law, in Mexico on watches made in Mexico.

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duct."2 The fact remains that in these cases the more appropriate
theory would be nationality or protected interest and not territori-
ality.
Where aliens have been involved, both United States and Eng-
lish courts have expanded the traditional application of the terri-
torial principle, generally through the use of what may be referred
to as the subjective-objective territorial theory. This theory is bet-
ter described as an extension of the territorial theory rather than
as a separate one. Under it, aliens acting outside territorial boun-
daries are considered as having committed crimes within the state
if the offense has a certain impact within the territory of the state.
When considering the subjective-objective territorial theory, the im-
portant factor is that the effect of the crime occurred within the
territory of the rule-enforcing state. That state would have objec-
tive territorial jurisdiction. The state from which the acts were com-
mitted would have subjective territorial jurisdiction. This princi-
ple has been recognized, although not under this particular no-
menclature, by the Restatement on Foreign Relations Law of the
United States, 83 and has been relied upon in some cases, such as
those involving violations of prohibition laws. 34 English and
32. In Blackmer v. United States, 284 U.S. 421 (1932), the defendant, a
United States citizen, was convicted upon his return to the United States for con-
tempt of a United States court for failure to obey a subpoena of the court direct-
ing him to return home from France to act as a witness for the United States
government in a criminal trial. In Sachs v. Government of the Canal Zone, 176
F.2d 292 (5th Cir. 1949), a United States citizen was tried and convicted for a
criminal libel which he had composed in the Republic of Panama, a sovereign
state, for publication and circulation in the Canal Zone.
33. See RESTATEMENT, supra note 26, § 18. Section 18 reads in part as fol-
lows:
A state has jurisdiction to prescribe a rule of law attaching legal conse-
quences to conduct that occurs outside its territory and causes an effect
within its territory, if either
(a) the conduct and its effect are generally recognized as constit-
uent elements of a crime or tort under the law of states that have rea-
sonably developed legal systems, or
(b) (i) the conduct and its effect are constituent elements of activ-
ity to which the rule applies; (ii) the effect within the territory is sub-
stantial; (iii) it occurs as a direct and foreseeable result of the conduct
outside the territory, and (iv) the rule is not inconsistent with the princi-
ples of justice generally recognized by states that have reasonably devel-
oped legal systems.
34. See, e.g., Ford v. United States, 273 U.S. 593 (1927), in which the
defendants, British subjects who had been in a British ship on the high seas
about 25 miles west of San Francisco at the time it was seized by United States
authorities, were convicted of conspiracy to violate United States liquor laws pur-
suant to a treaty between the United States and England, authorizing the United
States to seize any British vessels and persons on such vessels suspected of such
offenses.

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CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL Vol. 5

other Commonwealth courts have extended its application to cases

involving national security35 and other matters."6
Whenever courts are faced with the problem of acts com-
mitted outside the jurisdiction but having effects within it, the per-
petrator is deemed constructively present in the state where the
effects of the conduct took place and which requests that actor's
delivery.
The case which seems to be relied upon most frequently in
the United States is Strassheim v. Daily,3 7 wherein the Su-
preme Court held that:
Acts done outside a jurisdiction, but intended to produce and
producing detrimental effects within it justified a State in pun-
ishing the offender if the State should succeed in getting him
38
within its power.
As early as 1798 the Attorney General indicated that a per-
son charged with piracy on the high seas should be tried in the
United States and not extradited to England.8 9 A different ra-

35. In Joyce v. Director of Public Prosecution, [1946] 1 All E.R. 186

(H.L.), the defendant, who had acted as a propagandist radio announcer for Nazi
Germany (known also as "Lord Haw-Haw") was convicted of treason and
hanged, even though he was a United States national and, therefore, an alien to
English courts. Joyce had obtained a British passport fraudulently in July, 1933,
and held it until it expired on July 1, 1940, after he had begun to broadcast for
Germany. The court found that the possession of even this illegally-obtained
passport gave Joyce certain rights under British law and imposed upon him a cor-
responding duty of allegiance, which he violated. In a South African case, Rex
v. Neuman, 8 S. Afr. L.R. 1238 (1949), the defendant was a German national
domiciled in the Union of South Africa who had applied for naturalization there,
but who had also retained his German nationality. While in Germany he had
committed acts against the national security of South Africa and was subsequently
captured. At the time of his trial, he was not a national of South Africa. The
court found, however, that since he had resided in South Africa and had enjoyed
its protection he "owed allegiance to that State, breach whereof renders him liable
to the penalties of high treason." Id., at 1256.
36. See Rex v. Godfrey, [1923] 1 K.B. 24, in which the court ordered a
man in England to be extradited to Switzerland to stand trial for having procured
his confederate, who was in Switzerland, to obtain goods by false pretenses, even
though the first man had never been in Switzerland.
37. 221 U.S. 280 (1911).
38. Id., at 280.
39. 1 Op. ATr'Y GEN. 88 (1852). A similar position was expressed in In
re Stupp, 23 F. Cas. 281, 292-93 (No. 13,562) (C.C.S.D. N.Y. 1873) (dictum).
In an unreported case, extradition was refused where the victim was shot on a
United States vessel in Canadian waters but later died in the United States.
CLARKE, THE LAW OF EXTRADITION, 71-72 (4th ed., 1903). Cf. Terlinden v.
Ames, 184 U.S. 270, 289 (1902) (definition of extradition).

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tionale was relied upon in Sternaman v. Peck4" which involved the

extradition of a wife who had poisoned her husband in New York
and the ensuing death occurred in Canada. On rehearing, the ar-
gument was raised that if a crime had been committed it was not
within the territory of Canada, but the court rejected it by citing
cases where the jurisdiction had been upheld although the crime
had been commenced in another district. 4 1 No attempt was
made to determine whether the crime had been perpetrated solely
within the territory of Canada. In fact, the court seems to have
relied upon the existence of concurrent jurisdiction in the
United States and Canada.4 2 Two other cases from the Ninth
Circuit, Ex Parte Davis43 and Ex Part Hammond4 permitted ex-
tradition on a non-territorial jurisdiction theory. In one case the
requesting state had jurisdiction on the subjective territorial prin-
ciple while the requested state had objective territorial jurisdic-
tion. The court rested its decision in both instances on the
grounds that the necessary elements to complete the offense were
consummated in the requesting state. The first of these cases,
Ex Parte Davis, involved the murder of one who had been fatally
wounded in Mexico but died in California. The argument was
made that the offense was not complete until the death of the
victim occurred, which was in. California. The reasoning of the
court in dismissing this contention centered on the language of
the treaty requiring that the crime be committed within the juris-
diction of Mexico. Since the petitioner had done all the acts
necessary for the commission of the offense within Mexico, the
treaty requirement was satisfied and extradition could be
granted.45 This factual situation and the jurisdictional theory of
the requesting state is the opposite of that found in Sternaman:
the United States having "subjective" territorial jurisdiction in
Sternaman and "objective" territorial jurisdiction in Davis. Des-
pite the difference in jurisdictional bases, the Davis court failed
to distinguish between the cases and employed reasoning in sup-
port of its decision which conceivably would require an opposite
40. 83 F. 690 (2d Cir. 1897).
41. Id., at 691.
42. The same conclusion was reached in Commonwealth v. Macloon, 101
Mass. 1 (1869) and Tyler v. People, 8 Mich. 320 (1860). The Tyler analysis,
however, could lead to the conclusion that the place where a victim died would
have sole jurisdiction over the prosecution for murder.
43. 54 F.2d 723 (9th Cir. 1931).
44. 59 F.2d 683 (9th Cir. 1932), cert. denied, 287 U.S. 640 (1932).
45. 54 F.2d 723, 727 (9th Cir. 1931).

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CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL Vol. 5

result in Sternaman. In Sternaman the jurisdiction of Canada was

determined by reference to United States and Canadian principles
of jurisdiction,46 while in Davis -the court looked exclusively to the
language of the -treaty.4"
In the second of these cases, Ex Parte Hammond,48 the ac-
cused forged a check drawn on a Canadian bank which was de-
posited in his account in California. The court determined juris-
diction by looking to where the crime was completed and con-
cluded that Canada had exclusive jurisdiction despite the fact
that the opinion relied to some extent on authorities enunciating
the broad application of the "objective" principle.
The Court of Appeals in that case relied on a decision of the
Supreme Court to the effect that one who outside of a state will-
fully puts in motion factors to take effect in that state is answer-
able at the place where the harm is done and that this principle
is recognized in the criminal jurisprudence of all countries and
stated:
[T]he Supreme Court in the decision from which we have
quoted (Ford v. U.S., 273 U.S. 593 . . .) shows the desir-
ability of surrendering a person for trial who puts in motion
forces which operate to consummate a crime within the terri-
tory of the demanding nation . . . . and there is no reason
to suppose that the treaty was intended to exclude such a class
of offenders;. .. o
These difficulties arise whenever a given conduct deemed
criminal produces its effects at a place other than where the orig-
inal conduct took place and also whenever the offense is deemed
46. Sternamen v. Peck, 83 F. 690 (2d Cir. 1897).
47. Ex parte Davis, 54 F.2d 723 (9th Cir. 1931).
48. 59 F.2d 683 (9th Cir. 1932), cert. denied, 287 U.S. 640 (1932). See
also United States ex rel. Hatfield v. Guay, 11 F. Supp. 806 (D.N.H. 1935).
49. Ex parte Hammond, 59 F.2d 683, 686 (9th Cir. 1931). However, in
1940, the same court rejected the contention of Alexander Strakosch that he
should not be extradited to Great Britain on charges of fraudulent conversion and
obtaining money by false pretenses on the grounds that even if the evidence could
be said to show his presence in London and his participation there in activities
of certain other accused individuals there was no evidence to show that he was
there at the time of the actual commission of the acts constituting the offenses
nor any evidence of his direct participation in those acts. The court stated:
Moreover, from the facts stated in the depositions, it is reasonably infer-
able-and, we think, obvious-that Spiro and his associates, including
appellee (Strakosch), were engaged in a conspiracy, and that the crimes
in question were committed in furtherance thereof. It therefore makes
no difference whether appellee was present or absent at the commission
of the acts constituting the crimes, or whether he did or did not directly
participate in their commission.
Cleugh v. Strakosch, 109 F.2d 330, 335 (9th Cir. 1940).

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 Bassiouni: Theories of Jurisdiction and Their Application in Extradition Law
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by its nature or effect to be continuous. The various decisions

considered in this area seem to be searching for some definitive
criteria of application for the maxim lex loci delicti.50 Unlike
cases involving civil responsibility which may depend upon public
policy considerations, conflicts of jurisdiction in criminal cases are
less susceptible to flexible rules based on alternative policy con-
siderations. Nonetheless it seems clear that judicial decisions are
guided by the interest displayed by prosecuting authorities and
courts reject the claims of defendants whenever the state having
concurrent or alternative jurisdiction does not challenge the juris-
diction of the requesting state.
In United States ex rel. Eatessami v. Marasco5 l an Israeli cit-
izen obtained a loan in New York from a bank in Switzerland
on the basis of forged securities given as collateral. The court,
in holding that a crime had been committed within the territorial
jurisdiction of Switzerland, interpreted the relevant treaty to allow
extradition "whenever the extraditee is shown prima facie to have
intended the harm and caused the harm to the demanding state
substantially as claimed by the latter."52 ' This rule focuses en-
tirely on the competence of the requesting nation and allows
extradition whenever those jurisdictional requirements have been
met. The court examined the qualifying words of the treaty with
Switzerland which require that the offense be "committed in
the territory of one of the contracting States [and that the offender]
be found in the territory of the other State . . . ."' The limita-
tion that the crime take place within the territory of the request-
ing state is found in few United States treaties.5 4 Usually the
words used are "jurisdiction" or as in recent conventions, "terri-
torial jurisdiction." 55 The Italian Supreme Court held in a 1934
50. The law of the place where the crime took place. H. BLACK, BLACK'S
LAw DIcnoNARY (4th ed. 1951).
51. 275 F. Supp. 492 (S.D.N.Y. 1967).
52. Id., at 496.
53. Treaty with Switzerland for the extradition of criminals, May 14, 1900,
Art. I, 31 Stat. 1928 (1901), T.S. No. 354. A new treaty is presently pending
ratification. See, Treaty Between the Swiss Confederation and the United States
of America on Mutual Assistance in Criminal Matters, done at Berne, Switzerland,
May 25, 1973.
54. Other treaties allowing extradition for crimes committed within the de-
manded state's territory are with Uruguay, Mar. 11, 1905, Art. I, 35 Stat. 2028
(1909), T.S. No. 501; Argentina, Sept. 26, 1896, Art. I, 31 Stat. 1883 (1901),
T.S. No. 6; Colombia, May 7, 1888, Art. I, 26 Stat. 1534 (1891), T.S. No. 53.
55. See Treaty of Extradition with South Africa, Dec. 18, 1947 [1951] 1
U.S.T. 884, T.I.A.S. No. 2248; notes 110-112 infra. For a list of United States

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CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL Vol. 5

case entitled In re Amper that:

In view of the principles of international cooperation for the
suppression of crime, the sole duty of the Court of the re-
quested State is to determine the subjective and objective ex-
istence of the crime charged and to see whether it is extra-
ditable according to the principles which rule the relations be-
tween the two States in the matter of extradition. It cannot
raise questions of territorial jurisdiction if its own jurisdiction
56
is not involved.
In Rex v. Godfrey,5 7 a person was held to be a fugitive in
England when Switzerland sought to have him extradited, although
he had not been in Switzerland when the offense was committed.
The same result applied to fugitives who had escaped to England
but were sought by Germany for fraud committed by them in Hol-
land against persons defrauded in Germany."
In 1954 the French Supreme Court (Cour de Cassation) held
that a certain stateless person residing in France should be extra-
dited to Belgium for participation in a fraudulent scheme at-
tempted to be carried out in Belgium by an accomplice in Bel-
gium with the aid of forged documents, although he remained in
France. The Court took the view that although his acts were
committed in France, they were part of an ensemble of acts over
which Belgian courts had jurisdiction. 9
Decisions in the United States and in other countries do not
attempt to ascertain jurisdiction under any particular theory, but
rather limit their analysis to the location of the primary effect of
the criminal acts. The unfortunate aspect of United States deci-
sions, however, is not that they construe treaties to allow extra-
dition despite concurrent jurisdiction, but their unnecessary em-
phasis on exclusive jurisdictional authority.
i The theory of subjective-objective territoriality contains an
inherent conflict in that it recognizes jurisdiction in more than
one state without ranking priorities. The attitude of the judiciary,
particularly in the United States, has been to ignore the issue of
conflicting concurrent jurisdictions and to pursue a pragmatic

extradition treaties up to 1937, see S. Doc. No. 134, 75th Cong., 3d Sess. 5697
(1937). Since that time conventions have been completed with South Africa,
Brazil, Israel and Sweden.
56. [1933-1934] Ann. Dig. 353 (No. 149) (Ct. Cass., Italy).
57. [1923] 1 K.B. 24.
58. Rex v. Jacobi and Hiller, 46 L.T.R. 595 (1881).
59. Malinowski, [1954] Bull. Crim. 165.

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course. Under this approach, the state which has physical cus-
tody has de facto priority which is not obstructed. There-
fore, the issue of conflicts is considered only whenever such a state
does not exercise its jurisdiction. Conflicts of subject matter
jurisdiction are ranked so as to give priority to one or the other
prevailing theories of subject matter jurisdiction. Among these
rankings the territorial theory, which is universally recognized, is
considered as the ranking theory entitled to priority over any other
theory in cases of conflicts. Within the territorial theory, the state
which has custody of the accused has priority, but this prior-
ity does not bar the state having subjective territoriality from pros-
ecuting at a later time. The only restriction would be that of
non bis in idem6 whenever recognized.

C. FloatingTerritoriality,the Law of the Flag

It is usually advanced that vessels, aircraft and spacecraft
are an extension of the territory and, therefore, the territoriality
theory applies to them by extension. This approach can be ar-
gued, if for no other reason than the fact -that the object of the
extension, be it vessel, aircraft or spacecraft, owes its existence to
technology which permitted such objects to utilize special environ-
ments other than land. To that extent the theory is predicated on
a fiction.
Although there are obvious technological differences between
ships, aircraft, and spacecraft before they reach outer space, and
subject to the limitations which will be discussed below, there are
four factors which are common to all of them and thus permit
their joint treatment in the context of theories of jurisdiction and
extradition. These similarities are: (1) ships, aircraft and
spacecraft operate in mediums which, with the exception of terri-
torial airspace, the territorial sea and internal waters, are legally
beyond the territorial claims of nations; (2) they enable hu-
mans to travel with great mobility and speed through these medi-
ums; (3) they are important bases of "power" for states; and
(4) they are potential arenas for criminal activities.
It is the last factor which makes ships, aircraft and space-
craft relevant to a study of international criminal jurisdiction.
The third factor makes the study of the principles of international

60. This term refers to the idea that an action cannot twice be taken in con-
nection with the same subject.

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criminal jurisdiction an important concern to states, since what-

ever occurs on board these power bases may seriously affect the
states which own or operate them or who have nationals aboard
them who may be affected by activities commenced upon them.
To that extent, they are relevant to a study on extradition.
The high seas, while available for use by all states, are not
subject to the sovereign claims of any state. 6' The airspace above
the high seas is similarly free for use by all states and is not sub-
ject to national appropriation or claim of sovereignty. A coastal
state, however, in addition to claiming sovereignty over its inter-
nal waters (which all states may do), may claim a territorial sea,
extending no more than twelve miles (with some exceptions) from
its coastline, over which it may claim complete sovereignty, sub-
ject only to the right of innocent passage of the ships of other
states. 2 The airspace above the territorial sea is also subject to
the sovereign claims of the coastal state,63 but there is no corre-
sponding right of innocent passage for aircraft. This difference
in legal status is rooted in the technological fact that aircraft,
being usually smaller, faster and more maneuverable than ships,

61. Convention on the Territorial Sea and Contiguous Zone, art. 1, done at
Geneva April 29, 1958, [1964] 2 U.S.T. 1606, T.I.A.S. No. 5639, 516 U.N.T.S.
205. [hereinafter cited as the Territorial Sea Treaty]. Although the Territorial
Sea Treaty does not specify how wide the territorial sea may be, it is generally
believed that it may be no wider than twelve miles. See BRIERLY, THE LAW OF
NATIONS 202-211 (1955). If a state claims a territorial sea of less than twelve
miles from the baseline from which the breadth of the territorial sea is measured,
in which it may exercise jurisdiction to prevent and punish infringement of fiscal,
customs, immigration and sanitary regulations. Territorial Sea Treaty, Art. 24,
supra.
62. See, Territorial Sea Treaty, supra note 61, articles 14-23. In The
Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 74 (1812), the Supreme
Court held that a warship of a foreign state, at peace with the U.S., is exempt
from U.S. jurisdiction while in its territorial waters. The rationale was sovereign
immunity and jurisdictional exemption by consent of the host state. Such consent
is implied unless there is express statement to the contrary. Consequently, the
territorial state will not exercise jurisdiction even in criminal matters over such
vessels and persons and property on board it.
In the Wildenhus's Case, 120 U.S. 1 (1886), the Supreme Court held when
a private vessel-merchant ship as opposed to a warship-enters a port, it is sub-
ject to domestic law unless exempted by treaty. The territorial state will exercise
its jurisdiction for crimes committed on board the vessel even when the victim
and aggressor are both foreigners. The positions expressed in these two cases are
still valid in the United States.
63. See the Territorial Sea Treaty, supra note 61, and the Convention on
International Civil Aviation, done at Chicago, December 7, 1944, 61 Stat. 1180,
T.I.A.S. No. 5191, 15 U.N.T.S. 295. [hereinafter cited as Chicago Convention].

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are a greater potential threat to the security of states.6 4 The air-

space superjacent to a state's land territory and internal waters,
of course, is also subject to the complete and exclusive sover-
eignty of the subjacent state. 65 As with airspace over the territo-
rial sea, there is no right of innocent passage. Any such rights
of passage must be acquired by agreement between states. These
are the basic rules of international law governing the legal status
of the high seas and atmosphere of the planet earth.
The legal status of outer space is not subject to any claims
of sovereignty. This rule, first developed out of United Nations
resolutions, became part of conventional and customary interna-
tional law.6 6 As of yet, there has been no agreement or decision
on the separation of national airspace from outer space, although
there are some indications as to where such a dividing line should
67
be delineated.
The use of the term "floating territory" to describe ships, air-
craft and spacecraft is, of course, an unnecessary fiction,6 since
many difficulties arise when the territorial principle is extended to
justify jurisdiction over anything other than land. The four factors
64. Id., art. 1. The concept of innocent passage for aircraft in a foreign
state's territorial airspace was discussed at the meeting of the Institute of Interna-
tional Law held in Brussels in 1902, but it was never adopted as a rule of law.
The effectiveness of aircraft as weapons of war, demonstrated over the fields of
Europe from 1914 to 1918, no doubt contributed greatly to the early scuttling of
the concept. See 4 G. HACKwoRT, DIGEST OF INTERNATIONAL LAw 357-358
(1942).
65. Chicago Convention, supra note 63, arts. 3(c), 6. Although article
5 gives to states which are parties to the Chicago Convention a right of passage for
nonscheduled flights into and across the territory of another state, the right is very
limited and cannot be compared with the right of innocent passage for ships in
the territorial sea, as the territorial state may legally require the aircraft to land.
66. See G.A. Res. 1721, 16 U.N. GAOR Supp. 17, at 6, U.N. Doc. A/5100
(1961); G.A. Res. 1962, 18 U.N. GAOR Supp. 15, at 15, U.N. Doc. A/5515
(1963). See also McDoUGAL, LASSWELL & VLASSIC, LAW AND PUBLIC ORDER IN
SPACE, 217 and ch. 3, generally (1963); BRIERLY, supra note 57, at 220; Go-
rove, Interpreting Article II of the Outer Space Treaty, 37 FODHAM L. REv. 349,
351 (1969); and Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, Including the Moon and Other Celestial
Bodies, articles I, II, done at Washington, London and Moscow, January 27, 1967,
[1967] 3 U.S.T. 2410, T.I.A.S. No. 6347, 610 U.N.T.S. 205. [hereinafter referred
to as 1967 Space Treaty].
Both conventional and customary international law are primary sources of
international law. See Statute of the International Court of Justice annexed to
the Charter of the United Nations, art. 33(1); 59 Stat. 1055, T.S. No. 993.
67. See Vosburgh, Where Does Outer Space Begin?, 56 A.B.A.J. 134
(1970).
68. See HALL, INTERNATIONAL LAw, 244-49 (6th ed. 1909).

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listed above are preferable to the floating territory concept for use
in analysis because they expressly recognize, without the use of
fictions, the uniqueness of these power bases and consequently
their importance to the states. Another term employed to de-
scribe this theory is the "law of the flag" which considers ships,
aircraft and spacecraft as territory proper because of their capa-
bility of acquiring nationality, which is manifested by appro-
priately identifying colors, insignia or flag.
As a result of the carrier's nationality, States have a certain
competence to prescribe and enforce rules of conduct governing
all persons aboard ships and aircraft of their nationalities, even
when the ship or aircraft is within areas subject to other territorial
states.6 9 This competence, however, is not exclusive except when
7" the Supreme
a ship is on the high seas. In Skiriotes v. Florida,
Court said that
[T]he United States is not debarred by any rule of interna-
tional law from governing the conduct of its own citizens upon
-the high seas or even in foreign countries when the rights of
other nations or their nationals are not infringed. With re-
spect to such an exercise of authority there is no question of
international law, but solely of the purport of the municipal
law which establishes the duty of the citizen in relation to his
71
own government.
An example of such exercise of jurisdiction is the case of
United States v. Flores,7 in which a United States citizen was
indicted for the murder of another United States citizen aboard
an American vessel. At the time of the offense, the vessel was
anchored in the Port of Matadi in the Belgian Congo (at that time
subject to the sovereignty of the Kingdom of Belgium) about 250
miles inland from the mouth of the Congo River. The United
States Supreme Court overruled the lower court decision that the
place where the offense was committed was not within the admir-
alty and maritime jurisdiction of the United States:
It is true that the criminal jurisdiction of the United
States is in general based upon the territorial principle, and

69. See RESTATEMENT, supra note 26, §§ 30(1), 31(a), 32(1)(a).

70. 313 U.S. 69 (1941).
71. Id., at 73. See a tso United States v. Bowman, 260 U.S. 94 (1922);
Blackmer v. United States, 284 U.S. 421 (1932); Harvard Research in Interna-
tional Law, Jurisdiction with Respect to Crime, 29 AM. J. INT'L L. Supp. 509-11
(1935) [hereinafter referred to as the HarvardResearch].
72. 289 U.S. 137 (1933).

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 Bassiouni: Theories of Jurisdiction and Their Application in Extradition Law
THEORIES OF JURISDICTION

criminal statutes of the United States are not by implication

given an extra-territorial effect. United States v. Bowman,
260 U.S. 94, 98; compare, Blackmer v. United States, 284
U.S. 421. But that principle has never been thought to be
applicable to a merchant vessel which, for purposes of the ju-
risdiction of the courts of the sovereignty whose flag it flies
to punish crimes committed upon it, is deemed to be a part
of the territory of that sovereignty, and not to lose that char-
acter when in navigable waters within the territorial limits of
another sovereignty . . . Subject to the right of the terri-
torial sovereignty to assert jurisdiction over offenses disturbing
the peace of the port, it has been supported by writers on
international law, and has been recognized by France, Bel-
gium, and other continental countries as well as by England
73
and the United States.
Excluding international custom, 74 the most definitive state-
ment of the international law relating to the high seas is found in
the 1958 Convention on the High Seas. 75 After stating the basic
right of states, both coastal and noncoastal, to operate ships un-
der their respective flags on the high seas,76 the Treaty provides
that:
[S]hips have the nationality of the State whose flag they are
entitled to fly. [But] [t]here must exist a genuine link be-
tween the State and the ship; in particular, the State must ef-
fectively exercise its jurisdiction and control in administrative,
77
technical and social matters over ships flying its flag.
Article 6 of the Treaty states that ships can be under the flag of
only one state and may not change flags during a voyage or while
in a port of call, unless there is a real transfer of ownership or
change of registry. Except as expressly provided for in the High
Seas Treaty or other international treaties, the flag state has exclu-
sive jurisdiction over the ship. 78 Warships and ships used only in
73. Id., at 155-57.
74. See BRIERLY, supra note 61, at 304-07.
75. Convention on The High Seas, done at Geneva April 29, 1958, [1962] 2
U.S.T. 2312, T.I.A.S. No. 5200, 450 U.N.T.S. 82. [hereinafter referred to as High
Seas Treaty].
76. Id., art. 4.
77. Id., art. 5. The Treaty does not define what a "genuine link" is or what
would happen if such a link did not exist between a state and a ship ostensibly
sailing under its flag. See RESTATEMENT, supra note 26, Explanatory Notes § 28,
comment b, at 79, Reporters' Notes § 28, No. 2, at 81.
78. High Seas Treaty, supra note 75, art. 6. Examples of situations in which
the rule of exclusive flag state jurisdiction is modified are piracy and slave trading,
discussed later under the universality principle, and hot pursuit. In the latter, a

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CAL FORNIA WESTERN INTERNATIONAL LAW JOURNAL Vol. 5

governmental noncommercial service have "complete immunity

from the jurisdiction of any State other than the flag State."'79
When a ship is within a foreign state's territorial sea or inland
waters, however, the competence of the flag state to prescribe and
enforce rules of conduct on board is less complete than when the
ship is on the high seas. The flag state, instead of having exclu-
sive jurisdiction, usually has concurrent jurisdiction with the
coastal (territorial) state.
Regarding merchant ships and governmental ships operated
for commercial purposes,
[T]he criminal jurisdiction of the coastal State should
not be exercised on board a foreign ship passing through the
territorial sea to arrest any person or to conduct any investi-
gation in connection with any crime committed on board the
ship during its passage, save only in the following cases:
(a) If the consequences of the crime extend to the
coastal State; or
(b) If the crime is of a kind to disturb the peace of
the country or the good order of the territorial sea;
or
(c) If the assistance of the local authorities has been
requested by the captain of the ship or by the con-
sul of the country whose flag the ship flies; or
(d) If it is necessary for the suppression of illicit traf-
80
fic in narcotic drugs.
-It has not been established, however, whether international law
prohibits a coastal state from exercising its jurisdiction over sit-
uations not provided for in article 19(1) (a-d) of the Territorial
Sea Treaty, since this provision dictates only that a coastal state
should not exercise its jurisdiction over merchant ships and gov-
ernmental ships operated for commercial purposes. Generally,
however, it can be said that the coastal state may exercise criminal
jurisdiction in matters which affect the "peace of the port, 8 1 an

ship or aircraft of the coastal state may undertake uninterrupted pursuit on the
high seas of a foreign vessel which is suspected of having violated the laws and
regulations of the coastal state if the pursuit is undertaken when the foreign vessel
or one of its boats is still within the internal waters or territorial sea of the pur-
suing state. Id., art. 23. See also, Ford v. United States, 278 U.S. 593 (1927);
BRIERLY, supra note 61, at 307, 311.
79. High Seas Treaty, supra note 75, articles 8(1), 9.
80. Territorial Sea Treaty, supra note 61, articles 19(1), 21.
81. Id.

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 Bassiouni: Theories of Jurisdiction and Their Application in Extradition Law
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imprecise term which should be adequately provided for by article

19(1) (a-d), but which may be extended further.
An example of the type of situation which may fall under
the "peace of the port" doctrine in the Wildenhus's Case,"2 where
a Belgian national killed another Belgian national below the
deck of a Belgian vessel on which they were both crew members.
At the time of the offense the ship was moored to a dock in Jer-
sey City. Wildenhus was arrested by local police authorities and
appropriately charged. The Belgian consul applied for a writ
of habeus corpus, based upon a treaty between Belgium and the
United States which provided, in particular, that in regard to
disorders aboard merchant vessels,
[T]he local authorities shall not interfere, except when the
disorder that has arisen is of such a nature as to disturb tran-
quility and public order on shore, or in the port, or when a
person of the country or not belonging to the crew, shall be
concerned therein. 88
The Supreme Court, after discussing cases which had been
heard before French tribunals under a previous treaty on the
subject between the United States and France, held that the local
court properly exercised jurisdiction over the case:
Disorders which disturb only the peace of the ship or those
on board are to be dealt with exclusively by the sovereign
of the home of the ship, but those which disturb the public
peace may be suppressed, and, if need be, the offenders pun-
ished by the proper authorities of the local jurisdiction. It
may not be easy at all times to determine to which of the
two jurisdictions a particular act of disorder belongs. Much
will undoubtedly depend on the attending circumstances of
the particular case, but all must concede that felonious homo-
cide is a subject for the local jurisdiction and that if the proper
authorities are proceeding with the case in a regular way, the
consul has no right to interfere to prevent it.84
For determining whether a crime committed on board a ship
disturbs the "peace of the port" of the coastal state, the Wilden-
hus's Cases5 quotes from a French case which established its juris-
diction:
"Considering that every state is interested in the repres-

82. 120 U.S. 1 (1887).

83. Id., at 5.
84. Id., at 18.
85. Id.

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CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL Vol. 5

sion of crimes and offenses that may be committed in the

ports of its territory, not only by the men of the ship's com-
pany of a foreign merchant vessel towards men not forming
part of that company, but even by men of the ship's company
among themselves, whenever the act is of a nature to compro-
mise the tranquility of the port or the intervention of the local
authority is invoked or the act constitutes a crime by common
law" (droit commun, the law common to all civilized na-
tions,) "the gravity of which does not permit any nation to
leave it unpunished, without impugning its rights of jurisdic-
tional and territorial sovereignty, because that crime is in it-
self the most manifest as well as the most flagrant violation
of the laws which it is the duty of every nation to cause to
be respected in all parts of its territory." 8 6
The above provisions do not affect the right of a coastal state
"to take any steps authorized by its laws" for the purpose of con-
ducting an arrest or an investigation on board a foreign ship pass-
ing through the coastal state's territorial sea after leaving its inter-
nal waters.8 7 In this way, the coastal State retains complete juris-
diction, not subject to the suggested general rule of article 19(1),
to prescribe and enforce rules governing events taking place either
on board the foreign ship or on land while the ship was in the
coastal state's internal waters. If the alleged crime or offense took
place on board the foreign ship before it entered the coastal state's
territorial sea, however, the coastal state is prohibited from taking
any steps on board the ship to arrest any person or conduct any
investigation if the ship is only passing through the territorial sea
without entering internal waters. 8 This distinction between the
interest of a state with regard to its territorial sea, on the one
hand, and its internal waters, on the other, is no doubt a realiza-
tion of the fact that when a foreign ship is in the internal waters
of a coastal state, it will probably dock at some time during the
duration of the visit. Upon docking, the crew, and perhaps the
passengers of the ship, may go ashore and come in contact with
the nationals of that state. If any of these interactions are
criminal or tortious in nature, the coastal state may exercise juris-
diction even though the ship has left the port and is passing
through the territorial sea on its way to the high seas.
Courts in extradition matters rely on the convenient fiction
86. Id., at 18-19.
87. Territorial Sea Treaty, supra note 61, art. 19(2).
88. Id., art. 19(5).

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 Bassiouni: Theories of Jurisdiction and Their Application in Extradition Law
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that a vessel is an extension of the physical territory of a state and,

therefore, within the scope of all municipal legal provisions appli-
cable to its territory. Nonetheless the relationship between terri-
tory and jurisdiction is often at issue in extradition cases involving
vessels because of the conflicts which arise between coastal states
and flag states.
In R. v. Governor of H. M. Prison, Brixton, ex parte Miner-
89
vini, wherein, in 1958, Norway requested the extradition from
Great Britain of Onafrio Minervini, an Italian citizen, charged
with the murder of a fellow seaman on board a Norwegian flag
vessel. No specific evidence as to the geographic position of the
vessel at the time of the alleged murder was submitted to the
court although it appeared that the vessel had been located some
six days steaming distance from port. After his commitment for
surrender by the British extradition magistrate, Minervini applied
for a writ of habeus corpus alleging, inter alia, that the case did
not come within the provisions of the Extradition Treaty of 1873
between Great Britain and Norway since the offense was not, in
the words of article I of the Treaty, "committed in the territory"
of the requesting State. The Queen's Bench Division rejected this
contention and held that the petition should be denied stating:
This treaty is not treating "territory" in its strict sense but in
a sense which is equivalent to jurisdiction, and it is only in
that way that one can make sense of the treaty. Indeed, it
is to be observed, though it may be said to be an argument
the other way, that in many of these treaties reference is
made not to territory but to jurisdiction, [sic] but in my view
in this treaty territory is equivalent to jurisdiction ....
The second way in which he [the applicant] puts the
case is this: Assuming that he is wrong and that "territory"
must be given more than its ordinary meaning, yet it is im-
possible to say that it covers a ship at sea when it is within
the territorial waters of a third Power because he says that
that would be a gross breach of international comity; it would
not only be legislating in respect of foreign territory, but also
would be assuming something which was within that territory
to be the territory of another foreign country. In my view,
it is quite unnecessary here to consider what is the true posi-
tion of a ship, whether the country whose flag is flown merely
has jurisdiction over the ship and those on board or whether
it is to be treated for certain purposes as the territory of that
89. [1958] 3 All E.R. 318.

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CALIFORNIA WESTERN INTERNATIONAL LAw JouRNAL Vol. 5

Power; because if I am right in saying -that "territory" in Art.

1 of the treaty is equivalent to "jurisdiction", then assuming
that the ship was at the time of the alleged murder within
the territory of a foreign Power, it would be only a matter
of competing jurisdiction and no one suggests that it is wrong
to legislate to provide for competing or concurrent jurisdic-
tion. Accordingly, it seems to me that it matters not in this
case whether the ship was in the middle of the North Sea,
in the territorial waters of Norway, in the territorial waters
of this country or in the territorial waters of any other Power;
the Norwegian government had jurisdiction and that is suffi-
cient to enable these proceedings to be brought. Accordingly,
it was unnecessary for any evidence to ,be -tendered before the
chief magistrate to show the position of the vessel and he had
jurisdiction to make the order which he did...90
The Lord Chief Justice in the Minervini case dismissed the appli-
cation and held that the word "territory" in the Extradition Treaty
was synonymous with "jurisdiction.", The treaty was held not
to be connected with territory in its strict sense, but in a sense
which was equivalent to jurisdiction, as the list of crimes in the
treaty included "assaults on board a ship on the high seas" and
other offenses occurring on the high seas.91
The same question was at issue in Wilheim Wolthusen v.
Star9 before the Supreme Court of Argentina in 1926. The
United States requested extradition from Argentina of an individ-
ual charged with having committed larceny on board an American
merchant vessel while the vessel was moored in the harbor of Rio
de Janeiro. The Extradition Convention of 1896 between the
United States and Argentina provides for the extradition of per-
sons accused of crimes "committed, in the territory of one of the
high contracting parties.19 3 The accused contended that the United
States had no jurisdiction, the act having been committed in the
territorial waters of Brazil. The Supreme Court of Argentina, not-
ing that in the present case the crime, although taking place in the
jurisdictional waters of Brazil, injured only the rights and interests
secured by the laws of the United States, held that extradition
should be granted. The Court stated that according to the princi-

90. Id., 320-321.

91. Id.
92. Wilheim Wolthusen v. Albert Otto Starl, [1925-1926] Ann. Dig. 305
(No._231) (Supreme Court, Argentine Republic).
93. Convention on Extradition of Sept. 26, 1896, 31 Stat. 1883, T.S. 6.

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 Bassiouni: Theories of Jurisdiction and Their Application in Extradition Law
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ples of international law, "territory" meant not only the area within
the limits of a State but also all other places subject to the sover-
eignty and jurisdiction of that State. With reference to the Treaty
of 1896, "territory" was also found to include merchant or war
vessels under the flag of the State as well as the house of a diplo-
matic agent of that State. The Supreme Court of Argentina held:
[T]hat the term territory in the clause of the treaty in question
includes, for the purpose of extradition, crimes committed on
the high seas on board merchant or war vessels carrying the
Argentine or United States flag; crimes committed on war
vessels of both nations and in the house of a diplomatic agent
of either of the countries. 94
Both the Harvard Draft Convention and the Restatement
recognize the jurisdiction of a state to prescribe and enforce rules
of conduct for all persons aboard aircraft having its nationality,
whether the aircraft is over the high seas or within the territorial
jurisdiction of another state.95
Unlike ships, within territorial waters, there is no right of
innocent passage for aircraft through the airspace above a foreign
state's fixed territory, internal waters or territorial sea. It is,
therefore, reasonably expected that the competence of the sub-
jacent state includes the power to prescribe and enforce rules gov-
erning criminal activities aboard foreign aircraft and would be
more complete than such power might be with respect to foreign
ships in its territorial sea. The actual practices of states with
respect to crimes and other offenses committed on board aircraft
of their own nationalities outside their territorial borders indicate,
at least insofar as states dedicated to a strict interpretation of the
territorial principle are concerned, a reluctance to exercise juris-
diction in the absence of express and specific legislative authoriza-
tion.
In United States v. Cordova,96 the defendant, Cordova, a
Puerto Rican passenger on an American aircraft, which at the
time was over the high seas somewhere between San Juan, Puerto
Rico, and New York, assaulted another passenger and members of
the crew. He was arrested when the plane arrived at New York and
he was brought to trial. The court found him guilty, but refused
94. Wilhelm Wolthusen v. Albert Otto Starl, [1925-1926] Ann. Dig. 305
(No. 231) (Supreme Court, Argentine Republic).
95. RESTATEMENT, supra note 26; HarvardDraft Convention, supra note 29.
96. 89 F. Supp. 298 (E.D.N.Y. 1950).

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CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL Vol. 5

to convict him due to the absence of federal jurisdiction, holding

that the statutes under which jurisdiction was claimed were ap-
plicable only to vessels within the admiralty and maritime jurisdic-
tion of the United States or to certain crimes committed on the
high seas. Therefore, an airplane was not considered a vessel
within the meaning of the statute and the airspace over the high
seas was not part of the high seas.
In response to this decision Congress passed the Crimes in
Flight Over the High Seas Act,9 7 in 1952, to include within the
"special maritime and territorial jurisdiction of the United States"
the following:
Any aircraft belonging in whole or in part to the United
States, or any citizen thereof, or to any corporation created
by or under the laws of the United States, or any State, Ter-
ritory, District, or possession thereof, while such aircraft is in
flight over the high seas, or over any other waters within the
admiralty and maritime jurisdiction of the United States and
out of the jurisdiction of any particular State. 98
The English position is well expressed in Regina v. Martin9 9
wherein the defendants were British nationals charged in 1966 with
being in unlawful possession of raw opium while aboard a British
aircraft enroute to Singapore from Bahrein. No violation of the
law of either state was alleged. Jurisdiction was claimed under the
British Civil Aviation Act, which provided, in part, that:
[A]ny offense whatever committed on a British aircraft shall,
for the purpose of conferring jurisdiction be deemed to have
been committed in any place where the offender may for the
time being be. 100
The court stated that it did not have jurisdiction over the
defendants because they were not in England at the time the of-
fense was committed and the law under which they were indicted
did not apply to acts done on British aircraft outside of England.
Section 62 did not create any offenses, but only provided the place
where an act which was already an offense, if committed on a

97. 18 U.S.C. § 7(5) (1970).

98. Id. The term "State" has been defined to mean a state of the United
States, and not a foreign country. Wynne v. United States, 217 U.S. 234 (1910).
For a detailed discussion of United States practice regarding aircraft crimes, see
Brown, Jurisdiction of United States Courts Over Crimes in Aircraft, 15 STAN.
L. REV. 45 (1962).
99. [1956] 2 Q.B. 272.
100. British Civil Aviation Act, 12, 13 & 14 Geo. 6, ch. 67, at 62 (1949).

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British aircraft outside of England (which was not the case here),
might be tried.
It should be noted, however, that the court did draw a dis-
tinction between "universal" offenses, such as murder and theft,
which "are not thought of as having territorial limits," and offen-
ses defined as such "only in relation to a particular place." An
example of the latter category would be the English law in ques-
tion prohibiting the possession of certain drugs, which was appli-
cable only in England. In construing the English statute, the court
said:
It is most unsatisfactory if there is to be complete lawlessness
on British aircraft, but on the other hand, it can hardly be
satisfactory if a foreigner traveling from one place to another,
thousands of miles from England, is to be held liable for in-
fringing regulations about which he cannot possibly have any
knowledge at all. 1' 1
The possibility of concurrent jurisdictional claims, including
02
but not limited to the conflicting principles discussed above'
caused in part the search for an effective and appropriate conven-
tion to clarify the subject. In 1963, the Convention on Offenses
and Certain Other Acts Committed on Board Aircraft0 3 was
adopted. The Convention applies to
101. Regina v. Martin, [1956] 2 Q.B. 272, 284.
102. The 1958 Draft Convention on Aviation Crimes, prepared by the Air
Law Committee of the International Law Association, provided in article 3 a list
of preferences as to what law should apply in the case of a crime committed
aboard an aircraft:
3.01 The criminal law to be applied to the case shall, in the dis-
cretion of the court acquiring jurisdiction according to Article 2, be se-
lected from the following laws in the order of preference stated:
3.01(1) First preference: the law of the State of the flag of the
aircraft, if such State has an appropriate law;
3.01(2) Second preference: the law of the State of the place
where the accused person first touches earth after the commission of the
crime;
3.01(3) Third preference: the law of the State and of the place
where the aircraft first touches down after the commission of the crime.
(This may be an emergency landing place or a scheduled landing place).
3.01(4) Fourth preference: the law of the State and of the place
where the aircraft was first scheduled to touch down or where a first
landing had been planned when the flight commenced as the normal end
of the flight during which the crime was committed. (This will not be
an emergency landing place.) .
3.01(5) Fifth preference: the law of the place where the aircraft
last ascended into flight prior to commission of the crime.
International Law Association, Air Law, Crimes in Aircraft, 301, 303, New York
University Conference (1958).
103. Convention on Offenses and Certain Other Acts Committed on Board
Aircraft, done at Tokyo, September 14, 1963, [1969] 3 U.S.T. 2948, T.I.A.S. No.
6768. [hereinafter cited as the Tokyo Convention].

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CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL Vol. 5

[Q]ffenses against penal law [and other] acts which, whether

or not they are offenses, may or do jeopardize the safety of
the aircraft or of persons or property therein or which jeopar-
104
dize good order and discipline on board.
In general, the Convention applies to offenses or other acts done
by a person on board any aircraft registered in a state party to the
treaty, "while that aircraft is in flight or on the surface of the high
seas or of any area outside the territory of any State." 10 5 For
purposes of the Convention, "an aircraft is considered to be in
flight from the moment when power is applied for the purpose of
take-off until the moment when the landing run ends."1 06 The
Convention does not apply to aircraft used in military, customs or
07
police services.1
The jurisdiction of states who are parties to the Convention
is set out in articles 3 and 4. Article 3 reaffirms the law of the
flag principle but does not make it exclusive. It provides:
1. The State of registration of the aircraft is competent
to exercise jurisdiction over offenses and acts committed on
board.
2. Each Contracting State shall take such measures as
may be necessary to establish its jurisdiction as the State of
registration over offenses committed on board aircraft regis-
tered in such State.
3. This Convention does not exclude any criminal ju-
08
risdiction exercised in accordance with national law.1
Article 4 provides certain limitations upon the exercise of
concurrent jurisdiction based on other principles, at least insofar
as aircraft in flight are concerned. It reads:
- A Contracting State which is not the State of registration
may not interfere with an aircraft in flight in order to exercise
its criminal jurisdiction over an offense committed on board
except in the following cases:
(a) the offense has effect on the territory of such State;
(b) the offense has been committed by or against a national
or permanent resident of such State;
(c) the offense is against the security of such State;

104. id., art. 1(1).

105. Id., art. 1(2). But see Chapter m of the Convention which makes spe-
cial provision for the powers of the aircraft commander.
106. Id., art. 1(3).
107. Id., art. 1(4).
108. Id., art. 3.

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THEORIES OF JURISDICTION

,(d) the offense consists of a breach of any rules or regula-

tions relating to the flight or maneuver of aircraft in
force in such State;
(e) the exercise of jurisdiction is necessary to ensure the ob-
servance of any obligation of such State under a multi-
lateral international agreement. 10 9
The Tokyo Convention, therefore, allows states a considerable
latitude for assertion of jurisdiction. Other provisions deal with
powers of the aircraft commander, unlawful seizure of aircraft and
various powers and duties of states under the Convention.11
Conspicuous by their absence from the Convention are any provi-
sions dealing with: (1) the development of a system of priorities
governing the order in which the several possible principles of
criminal jurisdiction, including the law of the flag, can be exer-
cised; (2) the prevention of double jeopardy; and (3) the ques-
tion of which state has jurisdiction over an in flight crime which
occurs aboard an aircraft chartered under a "bare-hull" charter to
1 11
one who is a national of a state other than the state of registry.
On December 16, 1970, the Convention for the Suppression
2
of Unlawful Seizure of Aircraft was completed at the Hague.1
The Hague Convention is addressed mainly to the crime of air pi-
racy, rather than to other common crimes which need not be acts
of air piracy though committed on board aircraft.
Notwithstanding the numerous instances of aircraft hijacking,
there has been no case known to this writer where extradition un-
der the terms of the Tokyo or Hague Convention was the basis
upon which such an offender was surrendered to the United States
for prosecution." 3 In all cases, the hijacker either was returned
or surrendered through one of the alternative devices of rendition,
or returned to the United States voluntarily. In several hijacking
cases not involving the United States, the offenders were tried by

109. Id., art. 4.

110. Id., art. 3. For an analysis and appraisal of the Tokyo Convention, see
Boyle and Pulsifer, The Tokyo Convention on Offenses and Certain Other Acts
Committed on Board Aircraft, 30 J. AiR. & COM. 305, 328-354 (1964).
111. Id., at 329-30.
112. Convention for the Suppression of Unlawful Seizure of Aircraft, Dec.
16, 1970, [1971] 2 U.S.T. 1641, T.I.A.S. 7192. [hereinafter cited as the Hague
Convention]. See discussion of this Convention in text accompanying notes 174-
181, infra.
113. Hirsch and Fuller, Aircraft Piracy and Extradition, 16 N.Y.LF. 392
(1970); see app., id., at 406-15.

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CALIFORNIA WESTERN INTERNATIONAL LAW JouRNAL Vol. 5

the territorial state and extradition was denied.11 4 Even though

the universality theory applies, 115 no state other than the flag state
or the landing state has ever sought or prosecuted a hijacker under
that theory. The greater concern of the drafters of the 1970
Hague Convention was that the political offense exception should
not be a bar to the extradition of hijackers. However, this con-
cern did not materialize. The United States, for example, did not
request extradition of hijackers from Cuba until 1973 although,
despite the absence of diplomatic relations, a valid treaty ex-
isted." 6 In other cases, the offender or offenders have either:
(1) been prosecuted by the state wherein they landed; (2) left
the landing state voluntarily and returned to the flag state, or; (3)
been immediately granted asylum formally or welcomed in such
a manner that the flag state did not bother to make any extradition
request.
D. Special Environments
This section encompasses the Arctic, the Antarctic and outer
space. Although there are many different and contrasting en-
vironments on earth, only the Arctic and the Antarctic are so
unique in terms of their use by people that they require special
jurisdictional treatment. As to outer space, it is the most unique
and challenging of all environments known to mankind.
1. The Arctic. Analysis of the legal status of the Arctic de-
pends upon an understanding of the basic physical characteristics
of the area. The ice covering the Arctic Ocean is not an unbroken
extension of the surrounding continents nor is it attached to any
continent. Rather, it exists independently in permanent form. It
could conceivably be regarded as falling under the territorial prin-
ciple if a state could legally claim sovereignty over it under inter-
national law. Some early legal writers who wrote about the Arctic
expressed the opinion that the Arctic could be territorially
claimed." 7 Scientific explorations, however, have proved that
most of the ice is neither permanent nor uniform, and that it is
114. Three such cases are reported in Bassiouni, Ideologically Motivated Of-
fenses and the Political Offense Exception in Extradition-A Proposed Juridical
Standard for an Unruly Problem, 19 DEPAUL L. Rav. 217 (1970), at 219, note 5.
115. See discussion of the universality theory of jurisdiction in text accom-
panying notes 179-207, infra.
116. See discussion of this point in Evans, Aircraft Hijacking: Its Causes and
Cure, 63 AM. J. INT'L L. 695 (1969).
117. Pharand, Freedom of the Seas in the Arctic Ocean, 19 TORONTO L.J.
210, 214 (1969).

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actually mobile." 8 Therefore, the Arctic is primarily of a marine

character. The Arctic Ocean has been opened to underwater
navigation by the advent of the nuclear submarine, which, unlike
its predecessors, does not have to surface periodically to recharge
its batteries. In addition, icebreakers and other ships have dem-
onstrated that the Arctic Ocean is capable of being navigated to
some extent.
The riparian Arctic states have indicated that they consider
the Arctic Ocean free for use by all states and not subject to the
sovereign claims of any states. 1 ' This is evidenced by the pur-
suance of navigation by both Arctic and other states on and below
the surface of the Arctic Ocean, by aircraft flying over the area,
and by the establishment of research stations on drifting ice is-
lands. Thus, international freedom of use of the Arctic Ocean
has attained the status of international custom as evidenced by a
120
general practice.
Since the Arctic is considered part of the high seas, the terri-
torial principle does not apply except as it might relate to certain
parts of the ice cap which are permanent and are attached to land
areas, or to those areas of the Arctic Ocean claimed by Arctic
states as part of their territorial sea. Other principles of interna-
tional criminal jurisdiction would have to be relied upon in order
to assert jurisdiction over a particular criminal act performed or
having effects thereon.' 2 ' Due to the fact that most human ac-

118. Id., at 218-19. There are many floating ice islands in the Arctic Ocean
capable of human habitation, if only to a limited degree. An example is
Fletcher's Ice Island, occupied as a research station by the United States Air Force
since 1952. It has been drifting ever since, except for a year and a half when
it was grounded north of Alaska. First spotted in 1947, there were some forty
scientists and technicians working on it by 1967. Another such research station,
Arlis II, was operated continuously by the Air Force for four years but had to
be abandoned when it drifted into the Greenland Sea after covering more than
4,300 nautical miles during its drift across the Arctic Ocean. Id., at 221.
119. Id., at 227-231. The Arctic states include the United States, Soviet
Union, Canada, Norway and Denmark. The United States government has long
held the view that the Arctic is not subject to sovereign claim. In 1909, it refused
to accept Admiral Perry's "annexation" of the region. 2 WmTEMAN, DIGEST OF
INTERNATIONAL LAW 1266 (1968).
120. U.N. CHARTER, art. 38(l)(b).
121. Recently, an American technician working on Fletcher's Ice Island was
indicted in the United States (Federal District Court, E.D. Va.) for the killing of
another technician on the island. Under international law, the island, floating
300 miles from the North Pole, was considered part of the Arctic Ocean. The
Department of Justice, rather than prosecute the alleged offender under active
personality or protected interest theories, considered the island as a "vessel on the

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CALIFORNIA WESTERN INTERNATIONAL LAW JouRNAL Vol. 5

tivities taking place in the Arctic environment are likely to occur

aboard a submarine, surface ship or aircraft, the jurisdictional
principle most likely to be relied upon is the law of the flag. Ac-
tivities of a criminal or even tortious nature taking place outside
of these power bases can be handled by other principles.' 2
2. The Antarctic. The Antarctic mainland was first discovered
by Captain Nathaniel Palmer in 1829, but its existence as a conti-
nent was established later. Although systematic and extensive
scientific exploration of the Antarctic did not begin until the
1930's, the main thrust of activities in the area began with the In-
ternational Geophysical Year from July, 1957, to December,
1958.28
Since the Antarctic is a continent, the territorial principle
could apply as a basis for international criminal jurisdiction sub-
ject to states making proper legal claims of territorial sovereignty
under international law. The 1959 Antarctic Treaty124 is the
basic legal document governing the activities of states in Antarc-
tica. It provides that:
,[N]o acts or activities taking place while the present treaty
is in force shall constitute a basis for asserting, supporting or
denying a claim to territorial sovereignty in Antarctica or cre-
ate any rights of sovereignty in Antarctica. No new claim
or enlargement of an existing claim to territorial sovereignty
in Antarctica shall be asserted while the present treaty is in
125
force.
Article IV (1) of the treaty provides that:
[N]othing contained in the present treaty shall be interpreted
as:

high seas." See, Bassiouni, Extraterritorial Criminal furisdiction, THE GLOBE

(Illinois State Bar Association Newsletter), Vol. 6.1, at 1 (1970).
122. An example of a special jurisdictional situation is Canada's recent claim
of competence to enforce pollution regulations up to 100 miles from its coastline.
See Bilder, The Canadian Arctic Waters Pollution Prevention Act: New Stresses
on the Law of the Sea, 69 MIcH. L. REv. 1 (1970).
123. See Bilder, Control of Criminal Conduct in Antarctica, 52 VA. L. Rv.
231, 233-37 (1966), and sources cited therein for material on the history and
physical characteristics of Antarctica.
124. Signed at Washington, December 1, 1959, [1961] 1 U.S.T. 794, T.I.A.S.
No. 4780, 402 U.N.T.S. 71. [hereinafter cited as the Antarctic Treaty]. As of
January 1, 1971, the following states were parties to the Treaty: Argentina, Aus-
tralia, Belgium, Chile, Czechoslovakia, Denmark, France, Japan, Netherlands,
New Zealand, Norway, Poland, South Africa, Soviet Union, United Kingdom and
the United States.
125. Id., art. IV (2).

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1974 THEORIES OF JURISDICTION

(a) a renunciation by any Contracting Party of previ-

ously asserted rights of or claims to territorial sovereignty in
Antarctica;
(b) a renunciation or diminution by any Contracting
Party of any basis of claim to territorial sovereignty in Ant-
arctica which it may have whether as a result of its activi-
ties or those of its nationals in Antarctica or otherwise;
(c) prejudicing the position of any Contracting Party as
regards its recognition or nonrecognition of any other State's
right of or claim or basis of claim to territorial sovereignty
126
in Antarctica.
Thus, while states may retain any claims acquired prior to the
treaty, they may not make any new claims while the treaty is in
force.' 2 7 Therefore, the territorial principle would not be appli-
cable to the unclaimed parts of the Antarctic continent. Other
principles of jurisdiction would have to be utilized for the control
of criminal conduct.
Since the high seas within the area south of sixty degrees
South Latitude are not affected by the provisions of the Antarctic
Treaty, 128 criminal jurisdiction for acts committed on board ships
or aircraft on or over the high seas would be within the ambit of
the law of the flag theory. 2 9 Jurisdiction over criminal acts com-
mitted on the continent or the permanent ice shelves attached to it
is still problematic because the treaty deliberately omits discus-
sion of this aspect. However, observers who are carrying on in-
spections under the treaty as designated by article VII (1) and
scientific personnel exchanged under article I (1) (b), as well as
staff members accompanying such persons, are
[S]ubject only to the jurisdiction of the Contracting Party of
which they are nationals in respect of all acts or omissions
occurring while they are in Antarctica for the purpose of
exercising their functions.' 8 0
Thus, the active personality principle is given exclusive application
in specified cases.
126. Id., art. IV (1).
127. The Treaty is in force for at least 30 years after its date of entry into
force. See id., art. XII (2)(a).
128. Id., art. VI.
129. Aircraft flying over the Continent of Antarctica would no doubt also be
under the exclusive competence of the flag state since no state could claim sover-
eignty over any Antarctic airspace as long as claims of sovereignty are prohibited
over the continent itself and the 1959 Treaty is in force.
130. see Antarctic Treaty, supra note 124, art. VIII (1).

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CALIFORNIA WESTERN INTERNATIONAL LAW JouRNAL Vol. 5

With regard to other foreign nationals, the Treaty only pro-

vides that the Contracting Parties concerned in any dispute over
the exercise of jurisdiction in Antarctica shall immediately consult
each other with a view to reaching a mutually acceptable solu-
tion."3 ' In addition, the twelve states who are the original Con-
tracting Parties shall meet periodically to discuss and formulate
measures regarding "questions relating to the exercise of juris-
1 32
diction in Antarctica.'
It can be assumed, therefore, in the absence of any further
guidelines drawn up pursuant to the Antarctic Treaty, that states
are free to utilize any of the various principles of criminal juris-
diction, with the exception of the territorial principle, unless the
act is committed in a previously claimed area. 13 3 States whose in-
ternational criminal jurisdiction, as defined by their own munici-
pal law, is based primarily on the territorial principle may have
difficulty in finding jurisdiction in some cases. 1 34 The most ap-
plicable principle is probably that of active personality, although
it certainly is not to be considered exclusive in application, except
1 35
where the Treaty so provides.
3. Outer Space. The examination of jurisdictional problems of
outer space has been placed under the title special environments
because outer space, like Earth's Polar regions, is alien and hostile
to human existence. The analogy, however, should not be carried
too far, for although an examination of jurisdictional problems in
the Arctic and the Antarctic may be helpful to an understanding
of those problems in outer space, the vast differences between these
environments make any extrapolation of the analogy detrimental
to the development of the law of outer space.
Outer space is similar to the Polar regions in that there can
be human activity outside of the power bases such as on spacecrafts
or ships. However, this applies more so in outer space than in the
area outside of ships on the high seas or aircrafts flying through
the atmosphere. People can function in spacesuits outside of their
space vehicles and, eventually, will be able to do so upon the sur-
131. Id., art. VIII (2).
132. Id., art. IX (1)(e).
133. Seven states claim territory in Antarctica. See, Bilder, supra note 123,
at 260.
134. See id., at 244-59 for a discussion of the application of United States
law in Antarctica.
135. See id., at 260-65, for a review of relevant foreign law applicable to
Antarctica.

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faces of other celestial bodies, just as they can function outside of

shelters in the Arctic and Antarctic if properly clothed.
Since outer space, like the high seas or the airspace over the
high seas, is not subject to claim of sovereignty, no state should be
able to claim jurisdiction under the territorial principle. 186 Also,
because the very nature of outer space confines most human ac-
tivities to the interior of spacecrafts, it can be expected that the
dominant jurisdictional principle in outer space, at least for the
near future, will be the law of the flag.
Article VIII of the 1967 Space Treaty provides that:
A State Party to the Treaty on whose registry an object
launched into outer space is carried shall retain jurisdiction
and control over such object, and over any personnel thereof,
while in outer space or on a celestial body. Ownership of
objects launched into outer space, including objects landed or
constructed on a celestial body, and of their component parts,
is not affected by their presence in outer space or on a celes-
tial body or by their return to the Earth .... 137

136. Probably tLe greatest difference between Earth's Polar regions and outer
space is that the former are finite in size while the latter, to the extent of human
knowledge, is infinite. Therefore, the use of "territory" in relation to outer space
is not appropriate. Also, on Earth, both territorial seas and territorial airspace
are as much a part of a state's sovereign "territory" as are its actual land areas.
Also, in the absence of the "no sovereignty" rule currently in force in both cus-
tomary and conventional international law, the surfaces of some planets would be
capable of appropriation as sovereign territory, just as islands in the high seas can
be so appropriated. It should also be noted at this point that while the United
States prescribes rules of law for islands over which it claims sovereignty, it also
prescribes rules of law for certain Trust Territories over which it does not claim
sovereignty but does exercise juisdiction. See LAY AND TAUBENFELD, THE LAW
RELATING TO ACTIVITIES OF MAN IN SPACE 201-02 (1970).
137. 1967 Space Treaty, supra note 66, art. VIII. The remainder of art. VIII
states that:
Such objects or component parts found beyond the limits of the State
Party to the Treaty on whose registry they are carried shall be returned
to that State Party, which shall, upon request, furnish identifying data
prior to their return.
The rights and duties of states with regard to the rescue and return of astronauts
and the return of objects which are launched into outer space but come down un-
expectedly in a foreign state, on the high seas, or in a place not subject to the
jurisdiction of any state have been clarified and elaborated by the Agreement on
the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects
Launched into Outer Space, done at Washington, London and Moscow, April 22,
1968, [1968] 6 U.S.T. 7570, T.I.A.S., No. 6599. See also Gorove, International
Protectionof Astronauts and Space Objects, 20 DEPAUL L. REV. 597 (1970-1971);
Sloup, Peaceful Resolution of Outer Space Conflicts Through the International
Court of Justice: "The Line of Least Resistance," 20 DEPAUL L. REV. 618 (1970-
1971).

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CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL Vol. 5

This provision gives states of registry, otherwise considered as the

flag states, authority to prescribe and enforce rules of conduct gov-
erning both criminal and non-criminal matters on board space-
crafts of all types while in outer space, whether a spacecraft is
traveling through outer space, orbiting a celestial body, or resting
upon a celestial body. The same competence appears to ex-
tend to activities outside a spacecraft, whether in outer space or on
or under the surface of a celestial body, since the article states that
jurisdiction and control applies to the object and "any personnel
thereof,''
13
without requiring that the personnel actually be inside
the spacecraft. 1 9 Activities inside of research stations or other
dwellings of a permanent or semi-permanent nature, which rest on
or beneath the surfaces of celestial bodies and are not capable of
either landing or taking off themselves, and which may be con-
structed with components brought to the celestial body by space-
craft, would also be included within article VIII, since the owner-
ship of objects "landed or constructed on a celestial body, and of
their component parts, is not affected by their presence in outer
space or on a celestial body .... "'
Although there is no recorded case or instance of extradition
for a crime committed in any one of these special environments,
crimes have been committed as between nationals and prosecution
of such offenses has invariably been on one of the several other
theories discussed in this article. The United States in its dogged
insistence on the territoriality theory applied the flag or floating
territoriality theory to the only case reported which took place
141
near the Arctic Circle.

II. THE ACTIVE PERSONALITY (NATIONALITY) THEORY

The active personality or nationality theory, like the territorial

principle, is based upon state sovereignty which provides, in part,
that nationals of a state are entitled to the state's protection even

138. 1967 Space Treaty, supra note 66.

139. This is apparently a greater competence than was provided by U.N.
General Assembly Resolution 1962 (SVIII) of December 13, 1963, G.A. Res.
1962, 18 U.N. GAOR Supp. 15, at 15, U.N. Doc. A/5515 (1963), which pro-
vided in part the following statement of jurisdiction: "The State on whose registry
an object launched into outer space is carried shall retain jurisdiction and control
over such object and any personnel thereon, while in outer space . . . ." (em-
phasis added).
140. See 1967 Space Treaty, supra note 66, art. VIII.
141. See note 121, supra.

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THEORIES OF JURISDICTION

when they are outside its territorial boundaries. 142 Along with
one's right to his state's protection, a national has a corresponding
duty to obey those national laws which are recognized as having
an extraterritorial affect. 143 Such laws usually pertain to the duty
of allegiance which some states have even found to apply to citi-
zens and aliens alike. 144 Although such extensions of the active
personality principle are based upon a constructive allegiance,
they are no doubt tenuous at best and do not enjoy general accept-
ance in international law.
The active personality theory is universally accepted, although
its precise definition and application differs widely. The Harvard
Research reviewed the various legislative enactments of states im-
plementing this principle and classified them into five basic types,
according to the offenses proscribed, namely: (1) those statutes
which made all offenses punishable; (2) those statutes which made
only those offenses punishable which were also punishable by the
lex loci delicti; (3) those statutes which made all offenses of a
certain degree punishable; (4) those statutes which made only
those offenses committed against co-nationals punishable; and
(5) those statutes which made only certain enumerated offenses
45
punishable.1
Some states have given the theory even more extensive appli-
cation, such as to prosecute those individuals who were not nation-
als at the time the offense was committed, but who later became
nationals.' 4 6 In this manner these penal laws are retroactive and,
in the opinion of this writer, in violation of the principles of legal-
ity embodied in the prohibition against ex post facto. 47 Such an
application of the active personality theory can result in an injustice
to the defendant, particularly with regard to double jeopardy. In-
ternational law, however, does not clearly prohibit such an exercise
of jurisdictional authority since there is no principle of interna-
tional law forbidding a state the right to the reasonable exercise
4
of jurisdiction over its nationals even when abroad.1 1

142. L. OPPENHEIM, supra note 1, at 290, 686-689.

143. See RESTATEMENT, supra note 26, §§ 30-32.
144. See Joyce v. Director of Public Prosecution, [1946] 1 All E.R. 186
(H.L.).
145. Harvard Research, supra note 71, at 523.
146. See, e.g., Strafgesetzbuch [STGB] § 4 (C.H. Beck 1963) (W. Ger.).
147. Nonetheless, the Harvard Draft Convention, supra note 29, art. 5, at
532, would allow such an extension of jurisdiction.
148. But for an opinion that the active personality principle "is without any

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Thus a state may enforce its penal laws against its nationals
even when the conduct charged as criminal was committed in a
foreign jurisdiction. There appears to be no human rights protec-
tion against it other than the rule ne bis in idem whenever appli-
cable.
The question of whether such a theory will be given recog-
nition by a state other than the state of nationality who is seeking
to enforce its penal laws extraterritorially arises when an extradi-
tion request is lodged. In such a case, the requested state would
have to decide whether the requesting state has subject matter ju-
risdiction over a crime allegedly committed in a foreign state. That
foreign state could well be the requested state, in which case it will
have to decide whether it wishes to waive jurisdiction over the
relator. In the event that it does not waive jurisdiction, the
foreign state will have precedence for asserting its own jurisdic-
tion by relying on the territorial principle. In the event the al-
leged offense was committed in a foreign state other than the re-
quested state, an issue would arise whenever that foreign state
would also request the extradition of that same criminal suspect.
In this case also, priority will be given to the state claiming ter-
ritorial jurisdiction. It is obvious that the problems of enforcing
penal laws extraterritorially on the sole basis of the nationality of
the alleged offender, are essentially problems of conflicts of laws.
In addition, however, they place a burden on every national when
abroad; such a person falls under the sway of two penal legisla-
tions. Most penal laws which extend extraterritorially fall into
three categories: (1) laws pertaining to allegiance, national
duties and obligations arising out of the bond of nationality (such
as treason) ;149 (2) common crimes which even if committed
abroad have an effect upon internal public order (such as fraudu-
lent schemes); 1 0 and (3) common crimes committed abroad
which have a bearing upon the nationality state's outlook upon the
individual (such as violation of probation or parole)."' A dif-
justification," see Fitzgerald, The Territorial Principle in Penal Law: An At-
tempted Justification, 1 GA. J. INT'L & COMP. L. 29, 43 (1970).
149. See Joyce v. Director of Public Prosecution, [1946] 1 All E.R. 186
(H.L.).
150. In re Roquain, 26 I.L.R. 209 (Cour de Cassation, Belgium 1958). This
case involved the commission of the crime of adultery in France. Such an offense
affected the family states in Belgium and was committed between Belgian na-
tionals. See also Public Prosecutor v. Van H., [1952] Ann. Dig. (19 I.L.R.) 227
(No. 49) (Supreme Court, Neth. 1952).
151. Schnecberger v. Public Prosecutor of the Canton of Lucerne, [1954]
(21) I.L.R. 125 (Cour de Cassation, Switzerland 1954).

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THEORIES OF JURISDICTION

ferent situation exists in states which prohibit extradition of their

nationals. Accordingly, the prosecution of individuals from such
states for crimes committed abroad, violative of the penal laws of
both states, proceeds in the courts of the national's state. 152
The first category has received recognition in extradition law
as a valid basis for a request, but its application is limited by rea-
son of the political offense exception.' 5 3 The second category
could fall in the subjective territorial theory and as such presents
no difficulties other than in cases of multiple requests and the es-
tablishment of priority in granting extradition. The third cate-
gory is applied without difficulty because the extradition request
would be based on a penal judgment concerning another factual
situation, but wherein the offender was conditionally released.
The offense committed abroad, which the nationality state is tak-
ing cognizance of, is only relied upon by that state to revoke the
conditional release. Considerations of such revocation are not
within the examining prerogative of the requested state and, there-
fore, this instance would present no conflict of laws problems.
The final situation above is the appropriate measure to be taken
by a state which prohibits extradition of its nationals. It is the
proper application of the maxim aut dedere aut iudicare.' 54
Such
a measure avoids the problems of non-prosecution of offenders
because of their nationality and thus promotes the preservation
of a minimum world order. 155 In this category the state of nation-
ality, which becomes the prosecuting state, may require that the
offense be prosecutable not only under the laws of the state
wherein it was committed but also under its own laws. 150 This
requirement of double criminality is one of the conditions for
granting extradition and it is, therefore, important that it be ap-
plied to a procedure which is intended to be a substitute for extra-
dition.
III. THE PASSIVE PERSONALITY THEORY
This theory complements the active personality theory.
While the exercise of the active personality theory insures that na-
152. Re Gutierrez, [19571 (24) I.L.R. 265 (Supreme Court, Mexico 1957).
153. The "political offense exception" is discussed in M. BASSIOUNI, INTERNA-
TIONAL ExTRADITION AND WORLD PUBLIC ORDER, ch. VI (1974).
154. This term is utilized to convey the maxim that the nation must either
capitulate or proceed to judgment.
155. See BASSIOUNI, supra note 153, ch. I.
156. X v. Public Prosecutor, [1952] Ann. Dig. (19 I.L.R.) 226 (No. 48)
(Court of Appeals, The Hague 1957).

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tionals of a given state who have committed offenses abroad will

be brought to justice, the passive personality theory insures that a
state's interest in the welfare of its nationals abroad will also be
protected. Since the ultimate welfare of the state itself depends
upon the welfare of its nationals, it can be asserted that a state
has a legitimate interest in the prosecution of those who have been
found guilty of committing crimes against its nationals while
abroad.
The most famous application of the passive personality the-
ory is undoubtedly the case of the S. S. Lotus,157 although the de-
cision of the Permanent Court of International Justice was based
on other grounds. 158 Some states have enacted statutes based
upon this theory.1 5 9 The theory has, however, been expressly re-
pudiated by the Restatement, 6 ' and it has been criticized by
scholars.' 6 ' In addition, the Brussels Convention 6 2 and the Ge-

157. S.S. "Lotus," [1927] P.C.I.J., ser. A, No. 9; 2 HUDSON, WORLD COURT
REPORTS 20 (1935). The case involved a collision on the high seas between a
French ship, the Lotus, and a Turkish vessel, the Boz-Kourt, near Turkish terri-
torial waters. When the French ship put into port at Constantinople, the French
watch officer who was in charge of the Lotus at the time of the collision was
arrested ashore. France claimed that Turkey had no jurisdiction to try the French
officer, while Turkey claimed that it was not prohibited from doing so by inter-
national law. Both states agreed to submit the case to the Permanent Court.
Turkey claimed jurisdiction under article 6 of the Turkish Penal Code which pro-
vided that any foreigner who committed an offense abroad to the prejudice of Tur-
key or of a Turkish subject would be punished in accordance with the Turkish
Penal Code. For a further discussion see Hudson, The Sixth Year of the Per-
manent Court of International Justice, 22 AM. J. INT'L L. 1, at 10 (1928)
[hereinafter cited as Hudson].
158. Although the wording of article 6 of the Turkish Penal Code would sup-
port both the passive personality and protected interest principles, the majority of
the Permanent Court based its decision upon the fact that the Turkish vessel was
assimilated to Turkish territory and that since the effects of the crime were felt
on the Turkish vessel, they were felt in Turkey itself. See Hudson, supra note
157, at 11. This, in effect, is a recognition of the subjective-objective territorial
principle. Brierly, supra note 61, at 308.
159. See, e.g., Strafgesetzbuch [STGB] art. 4(2) (C.H. Beck); Chinese
Criminal Code, art 8; C. PEN. Dist. y Terr. Fed. art. 4 (Andrade 1952). In con-
nection with the last statute, see the discussion of the Cutting case in 6 M. WurrE-
MAN, DIoFSr OF INTERNATIONAL LAW 104 (1968).
160. RESTATEMENT, supra note 26, § 30(2) states:
A state does not have jurisdiction to prescribe a rule of law attaching
a legal consequence to conduct of an alien outside its territory merely
on the ground that the conduct affects one of its nationals.
161. See, e.g., BRIERLY, supra note 61, at 302; and Baxter, ExtraterritorialAp-
plication of Domestic Law, 1 U.B.C. L. REv. 333 (1960).
162. International Convention for the Unification of Certain Rules Relating
to Penal Jurisdiction in Matters of Collisions and Other Incidents of Navigation,

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neva High Seas Convention of 1958163 have prohibited states

which are parties thereto from relying on this theory to assert
their jurisdictional authority. The HarvardResearch, while listing
the passive personality theory as one of the five general theories
of penal jurisdiction in use throughout the world, does not include
164
it in the text of the Draft Convention.
As with the active personality theory, the passive personality
theory may lead to situations where the accused is exposed to
double jeopardy. Nevertheless, the theory is relied upon by a
number of states and must continue to be considered applicable
in any situation in which its use is not prohibited by international
law, and when the following three conditions are met: (1) the
victim is a national of the forum state (the state which either has
the defendant in custody or is demanding that the state which does
have custody extradite the defendant to stand trial); (2) the de-
fendant is not a national of the forum state; and (3) the offense
was not committed within the territorial jurisdiction of the forum
state except when explicitly waived.
This theory was relied upon in part in the prosecution of
Adolf Eichmann by Israel under Israeli law,' even though there

signed at Brussels May 10, 1952. [1960] Gr. Brit. T.S. No. 47, (CMD. 1128,
at 14 (effective November 20, 1955).
163. High Seas Treaty, supra note 75, art. 11. Article 11(1) of the Treaty
states that:
In the event of a collision or of any other incident of navigation con-
cerning a ship on the high seas, involving the penal or other disciplinary
responsibility of the master or of any other person in the service of the
ship, no penal or disciplinary proceedings may be instituted against such
persons except before the judicial or administrative authorities either of
the flag State or of the State of which such person is a national.
164. According to the HarvardDraft Convention:
The [passive personality principle] is admittedly auxiliary in character
and is probably not essential for any State if the ends served are ade-
quately provided for on other principles.
The Harvard Research states that the principle has been opposed by writers in
both common and civil law countries and that "[off all principles of jurisdiction
having some substantial support in contemporary national legislation, it is the
most difficult to justify in theory." Harvard Research, supra note 71, at 579.
While excluding the general or unrestricted use of the passive personality prin-
ciple, however, the Harvard Draft Convention reserves its limited use for situa-
tions where no other principle will apply, although the principle is used in the
context of the universality theory. Harvard Draft Convention, supra note 29, art.
10(c); HarvardResearch, supra note 71, at 589.
165. For a discussion of the Eichmann case in general see Papadatos, THE
EIcrmANN TRALm(1964). For its extradition effects see Bassiouni, Unlawful
Seizures and IrregularRendition Devices as Alternatives to Extradition, 7 VAND.
J. TEANSNAT'L L. 25, 28-33 (1973).

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CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL Vol. 5

was also sufficient reliance on the universality theory to avoid any

legal challenges to Israeli subject matter jurisdiction. In that case,
however, extradition was not the mode of securing custody over
the accused. Eichmann was kidnapped from Argentina by Israeli
agents.
Many states have statutes authorizing the exercise of extra-
territorial jurisdiction by virtue of conferring upon their courts
jurisdiction to prosecute for acts which affect the nationals of that
state. Such jurisdictional basis is, however, distinguishable from
instances where a given conduct committed in a foreign juris-
diction has its effect within the state seeking to apply its laws.
This latter basis falls within the parameters of the subjective-ob-
jective territoriality theory discussed in Section I of this article.
The passive personality theory can also be viewed as part of the
protected interest theory discussed in the following section. It is
distinguishable, however, in that the object of its protection is the
person of nationals of the state regardless of where they may be,
whereas the protected interest theory refers to the protection of
the state, its economic interest and in general harmful acts com-
mitted outside the state's jurisdiction, but which have an effect
within the state. To that extent, it also overlaps with the subjec-
tive-objective territoriality theory.
The passive personality theory is the counterpart of the na-
tionality theory. Both indeed rely on nationality as a criterion, but
in passive personality it is that of the victim which is relevant,
while in the nationality theory it is that of the offender. Under
both theories the state seeking to exert its jurisdiction claims the
power to regulate conduct outside its territory by imposing certain
limitations on individuals. The nationality theory imposes cer-
tain limitations or obligations upon the nationals, regardless of
where they may be located. The passive personality theory bur-
dens other states with limitations or obligations with respect to its
own nationals regardless of where they may be located.
The latest manifestation of the passive personality theory is
in an Israeli law of March 21, 1972, amending its penal laws with
respect to jurisdiction. Under this law, conduct which affects the
state (protected interest theory), its economic interests (extended
protected interest theory), and is designed to harm its nationals
(passive personality theory), subject any such actor to the jurisdic-
tion of Israeli courts.' 66
166. The JERUSALEM POST WEEKLY, August 14, 1973, at 4, discusses the first
application of this law to a Turkish national unlawfully seized in Lebanon by Is-

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There has been much confusion over the years about the
significance of the S.S. Lotus (France v. Turkey) case decided
by the Permanent Court of International Justice in 1927,167 and
its application to the passive personality theory. In that case a
collision between a French and Turkish vessel resulted in the
death and injury of several Turkish nationals, and as a result a
French officer was prosecuted in Turkey for causing the accident.
The Permanent Court of International Justice held that Turkey
could prosecute the French officer under its penal laws because
the injury had occurred on the Turkish vessel (floating territorial-
ity), and the victims were Turkish nationals (passive personality).
The court indicated that the combination of these two jurisdic-
tional theories created an adequate basis under prevailing inter-
national law.
Thus, the passive personality theory cannot be solely relied
upon as the exclusive basis for jurisdiction to prescribe or enforce
the penal laws of one state over a person whose conduct was per-
formed outside the territory of that state. However, when there
is an additional jurisdictional basis, the passive personality theory
serves to reinforce the jurisdictional claim of the given state. Fur-
thermore, in cases of conflict between two states, the one claiming
passive personality as an additional basis is to receive priority in
extradition.
IV. THE PROTECTED INTEREST (PROTECTIVE) THEORY
This is a much broader theory than the passive personality
theory because it extends the sphere of protection afforded na-
tional interests. It is in effect a "long arm" jurisdictional theory
which allows a state to reach beyond its physical boundaries to
protect its interests from harmful effects arising from conduct
abroad. The protected interest theory allows a state to assert
jurisdiction over an alien, whether an individual or legal entity,
acting outside the state's territorial boundaries but in a manner
which threatens significant interests of the state. It is a recog-
nized theory by both the Harvard Draft Convention'6 8 and the
69
Restatement.1 Both emphasize the potential application of this
raeli commandos. He was prosecuted, convicted and sentenced to seven years
imprisonment by a military court relying on this statute. See also TIME MAG-
AZINE, August 20, 1973, at 31; M. BASSIOUNI, INTERNATIONAL EXTRADITION AND
WORLD PUBLIC ORDER, 30 (1974).
167. S.S. "Lotus," [1927] P.C.I.J. ser. A, No. 9.
168. HarvardDraft Convention, supra note 29, articles 7, 8.
169. RESTATEMENT, supra note 26, § 33. Compare § 33 with § 18 which

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CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL Vol. 5

theory to cases involving counterfeiting of state documents by ex-

pressly stating in separate provisions that it applies to such
cases, 170 and to cases involving national security, although each
includes a limiting provision: (1) The Harvard Draft Convention
requires that the alien's act "not [be] committed in exercise of
a liberty guaranteed the alien by the law of the place where it
was committed,"' 171 and (2) the Restatement requires that the
"conduct is generally recognized as a crime under the law of states
1 ' 72
that have reasonably developed legal systems.
The Harvard Draft Convention and the Restatement are re-
flections of the customary practice of the United States even
though the actual practice differs at times. The protected interest
principle is likely to be applied by states to any acts committed
by aliens which pose either an actual or potential harm to any vital
interest of that state. The United States for one has not been
reluctant to rely on the protected interest theory, although it
usually does so under the guise of an exception to the territorial
principle, rather than considering it a separate theory.173 The
exceptions to the territorial theory, as discussed above, may pro-
duce the same outcomes as the protected interest theory. The
latter, however, has a much broader potential application, as it al-
lows a state broader latitude in the exercise of extraterritorial

may apply to many of the same cases, but which is considered as an exception
to the territorial competence given states by § 17 and which is not considered
as a separate theory in itself.
170. Harvard Draft Convention, supra note 29, art. 8; RESTATEMENT, supra
note 26, § 33(2).
171. Harvard Draft Convention, supra note 29, art. 7.
172. RESTATEMENT, supra note 26, § 33(1).
173. See, e.g., United States v. Archer, 51 F. Supp. 708 (S.D. Cal. 1943),
where an alien who had sworn falsely before a vice consul of the United States
at an American Consulate in Mexico was prosecuted under a United States statute
making such false swearing a crime. The court stated that "any person who takes
false oath before a consul commits an offense, not against the country where the
consul is, but against the sovereignty of the United States." Id., at 711 (Court's
emphasis); United States v. Rodriguez, 182 F. Supp. 479 (S.D. Cal. 1960),
where defendants who had made false statements to United States officials outside
of United States territory in order to obtain status as non-quota immigrants were
prosecuted. The court stated that "Congress may pick and choose whatever recog-
nized principle of international jurisdiction is necessary to accomplish the purpose
sought by . . . [its] legislation." Id., at 491; accord, Rocha v. United States, 288
F.2d 545 (9th Cir. 1961), cert. denied, 366 U.S. 948 (1961), involving aliens who
had conspired to enter the United States illegally as preferred status immigrants.
The court, citing the Rodriguez case, stated that "the powers of the government
and the Congress in regard to sovereignty are broader than the powers possessed
in relation to internal matters." Id., at 549 (Court's emphasis).

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criminal jurisdiction. The courts of the United States have relied

on the protected interest theory in anti-trust cases,'17 4 and also in
the enforcement of certain provisions of the Securities Exchange
Act which relate to regulated securities transactions taking place
outside the United States.1 75 However, the propriety of such ex-
tensions have met with criticism, particularly when such jurisdic-
tional extension 6is represented as an extrapolation of the territori-
17
ality principle.
There is, however, no general rule of international law which
prohibits the application of this theory either on a restricted or
an unlimited basis.1 77 The potential for using this theory in extra-
174. See United States v. Aluminum Co. of America, 148 F.2d 416 (2nd Cir.
1945), otherwise known as the "Alcoa" case, in which the defendant Canadian
corporation was charged with certain violations of the Sherman Anti-Trust Act
relating to attempts to restrain and monopolize interstate and foreign commerce
of the United States. See also United States v. Imperial Chemical Industries, 100
F. Supp. 504 (S.D. New York 1951). For an explanation of the latter case,
see 6 M. WHITEMAN, DIGEST OF INTERNATIONAL LAW 126-27 (1968), and for a
discussion in general of the United States practices with respect to jurisdiction
over anti-trust cases, see id., at 118-160 and note 31, supra.
175. It must be shown that the transaction had an effect upon United States
interests, and that the stock in question was registered and listed on a United
States stock exchange. Schoenbaum v. Firstbrook, 405 F.2d 200 (2nd Cir. 1968);
Securities and Exchange Commission v. Briggs, 234 F. Supp. 618 (N.D. Ohio
1964).
176. See, e.g., criticism of the "Alcoa" case in STEIN & HAv, LAw AND IN-
STITUTIONS IN THE ATLANTIC AREA 684 (1968); Jennings, ExtraterritorialJuris-
diction and the United States Antitrust Laws, 33 BRIT. Y.B. Irr'L L. 146,
at 175 (1957). Anglo-American practice, it can generally be said, still adheres
to the territorial theory, with exceptions being made in the specific areas discussed
above. This is reflected in the RESTATEMENT § 38, Territorial Interpretation of
United States Law, which reads:
Rules of United States statutory law, whether prescribed by federal or
state authority, apply only to conduct occurring within or having effect
within, the territory of the United States, unless the contrary is clearly
indicated by the statute.
RESTATEMENT, supra note 26, § 38.
Since the American federal system is based upon the theoretical premise that
the federal government, and Congress in particular, can act only when the power
to do so specifically delegated to it in the Constitution, and that the nondelegated
sovereign powers remain with the states and the people as required by the Tenth
Amendment, a special problem is raised within the context of American constitu-
tional law which is outside the scope of this discussion. See George, supra note
1, at 614-17.
For some examples of how states not following Anglo-American jurisdictional
practice have used and extended the protected interest principle, see Sarkar, The
Proper Law of Crime in InternationalLaw, 11 INT'L & COMP. L.Q. 446, 463-64
(1962).
177. The following words of the Permanent Court in the Lotus case seem to
support such a contention:

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CALIFORNIA WESTERN INTERNATIONAL LAW JouRNAL Vol. 5

dition is very vast. Indeed, if the authoritative decision making

process of a given participant is without restrictions as to what con-
stitutes conduct performed outside its boundaries, but having an
internal effect on its interests which it deems itself competent to
protect, then almost every act by any person which affects the
political and economic interest of a state could subject such person
to the jurisdiction of that state. This is exemplified by the case
of the Israeli law of March 21, 1972, which purports to grant juris-
diction to its courts to enforce Israeli law over acts wherever com-
mitted which affect or are destined to affect the security of the
state or its economic interests. 1 78 The requested state in such a
situation, would be confronted with a value judgment made by
the requesting state, and there would be no basis to challenge the
request or to question its merits without challenging that very
judgment. Therefore, to avoid creating conflict-collision situa-
tions, a "long arm" jurisdictional theory must take into account
its potential threat to world public order and it must have well-
defined limitations. This explains why the United States would
rather rely on an extrapolation of the territorial principle, even
though at times strained, than explicitly recognize the protected
interest theory with all its implications.

V. THE UNIVERSALITY PRINCIPLE

All theories previously discussed can be applied to a given sit-

uation only if there exists some link between the state desiring to
assert jurisdiction over the offense itself, and the offender or the
victim. This link can be: (1) the situs of the offense, whether
that location is the territory of the state or an extension thereof
(such as special status territories and law of the flag application);
(2) the nationality of either the perpetrator or the victim of the
offense (active and passive personality); or (3) the effects of a
given conduct outside the state but affecting some interest that
state desires to protect (protected interest and certain extensions
of the territorial theory). In each of these theories the state is
No argument has come to the knowledge of the Court from which it
could be deduced that States recognize themselves to be under an obli-
gation towards each other only to have regard to the place where the
author of the offense happens to be at the time of the offense.
S.S. "Lotus," [1927] P.C.I.J., ser. A, No. 9, at 23.
Article 11 of the High Seas Treaty, however, would prohibit use of the pro-
tective principle in the situations specified therein. High Seas Treaty, supra note
75, art. 11.
178. See note 166, supra.

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involved, or declares itself involved, by reason of a given conduct

which the state claims affects it in some way. The universality
theory, however, rests on a different rationale.
Some offenses, due to their very nature, affect the interests
of all states, even when committed in a given state or against a
given state, victim, or interest. Such offenses may even be com-
mitted in an area not subject to the exclusive jurisdiction of any
state such as the high seas, air space or outer space. The grava-
men of such an offense is that it constitutes a violation against
mankind. Such crimes are appropriately called delicti jus genti-
urn.179 Any state, if it captures the offender, may prosecute and
punish that person on behalf of the world community. The princi-
ple which gives all states jurisdiction over certain offenses is the
universality theory, since it allows states to protect universal val-
ues and the interests of mankind. Although the principle has been
applied to various offenses, its oldest and most common applica-
tion has been to piracy. 180
The High Seas Convenion of 1958 provides that "[a]ll
States shall cooperate to the fullest possible extent in the repres-
sion of piracy on the high seas or in any other place outside the
jurisdiction of any State." 18 ' Article 15 of the Convention defines
179. This term refers to crimes as defined by the law of nations.
180. See Harvard Draft Convention, supra note 29, art. 9; RESTATEMENT,
supra note 26, § 34. Although the RESTATEMENT only applies the principle to
piracy, it does provide "that other crimes may become crimes of universal inter-
est," such as slave trading, traffic in women for prostitution, traffic in narcotic
drugs and war crimes. Id., at 94, 97.
The Harvard Research, in its Comment to Article 9, states that "there seems
to be little or no basis for common agreement as to which offenses should fall
within the class of delicta juris gentium which are to be prosecuted and punished
on the same basis as piracy." Harvard Research, supra note 71, at 569. Some
of the offenses which are defined as such by the various laws, codes and projects
collected by the Harvard Research are the slave trade, the counterfeiting of for-
eign moneys or securities, traffic in women and children for immoral purposes,
the use of explosives or poisons to cause a common danger, injury to submarine
cables, traffic in narcotics and traffic in obscene publications. Id., at 569-71.
See also OPPENHEIM, supra note 1, at 330. United States practice in applying
the universality principle has been generally limited to piracy. See also 18 U.S.C.
§ 1651 (1958); United States v. Smith, 18 U.S. (5 Wheat.) 153 (1820); United
States v. Klintock, 18 U.S. (5 Wheat.) 144 (1820). The United States Constitu-
tion gives Congress the power "to define and punish piracies and felonies commit-
ted on the high seas and offenses against the law of nations." U.S. CONST. art.
1, § 8, cl. 9.
181. High Seas Treaty, supra note 75, art. 14. On the subject of immunity
to ships in general, see The Schooner Exchange v. MacFaddon, 11 U.S. (7
Cranch) 116 (1812) (warship granted immunity); Berizzi Bros. Co. v. S.S. Pe-

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piracy as any of the following acts:

(1) Any illegal acts of violence, detention or any act
of depredation, committed for private ends by the crew or the
passengers of a private ship or a private aircraft, and di-
rected:
(a) On the high seas, against another ship or aircraft
or against persons or property on board such ship
or aircraft;
(b) Against a ship, aircraft, persons or property in a
place outside the jurisdiction of any State;
(2) Any act of voluntary participation in the operation
of a ship or of an aircraft with knowledge of facts making
it a pirate ship or aircraft;
(3) Any act of inciting or of intentionally facilitating
an act described in subparagraph 1 or subparagraph 2 of this
182
article.
Article 19 provides that:
On the high seas, or in any other place outside the juris-
diction of any State, every State may seize a pirate ship or air-
craft, or a ship taken by piracy and under the control of pi-
rates, and arrest -the persons and seize the property on board.
The courts of the State which carried out the seizure may de-
cide upon the penalties to be imposed, and may also deter-
mine the action to be taken with regard to the ships, aircraft
or property, subject to the rights of third parties acting in good
faith. 183
Although the provisions of the High Seas Convention relating
to piracy extend to both ships and aircraft, they are limited in
their application to those vessels and aircrafts "on the high seas or
in any place outside the jurisdiction of any State. 18 4 While this
would seem adequate to cover ships, excluding only those ships

saro, 271 U.S. 562 (1926) (governmental commercial vessel granted immunity).
But cf. Republic of Mexico v. Hoffman, 324 U.S. 30 (1945) (governmental com-
mercial vessel denied immunity because it was operated by a private corporation).
On the Doctrine of Act of State, see Banco de Espana v. Federal Reserve Bank
of New York, 114 F.2d 438 (2nd Cir. 1940); Banco Nacional de Cuba v. Sabba-
tino, 376 U.S. 398 (1964); and Banco Nacional de Cuba v. Farr, 243 F. Supp.
957 (S.D.N.Y. 1965), affd 388 F.2d 166 (2nd Cir. 1967), cert. denied, 390 U.S.
956 (1968). See also H.R. 3493, 93d Cong., 1st Sess. (1973); Note, Jurisdictional
Immunity of Foreign States, 23 DEPAuL 1225 (1974).
182. High Seas Treaty, supra note 75, art. 15.
183. Id., art. 19.
184, Id., art. 15.

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within the territorial sea or internal waters of a state, it is not suffi-

cient to cover aircraft, since these operate not only within the air-
space over territorial seas and inland waters, but within the air-
space over territorial land areas as well. The characteristics of air-
craft differ from ships in size, speed and maneuverability. More
importantly, most incidents of aircraft piracy have occurred within
the territorial airspace of states and not on the high seas.
In 1970 the International Civil Aviation Organization com-
pleted at the Hague the Convention for the Supression of Un-
lawful Seizure of Aircraft.1 85 The Convention provides that a
person is- guilty of an offense if he, while on board an aircraft in
flight:
(a) unlawfully, by force or threat thereof, or by any
other form of intimidation, seizes, or exercises control of, that
aircraft, or attempts to perform any such act, or
(b) is an accomplice of a person who performs or at-
tempts to perform any such act .... 186
Unlike the 1963 Tokyo Convention, which defines an aircraft as
being in flight "from the moment when power is applied for the
purpose of take-off until the moment when the landing run
ends," '1 7 the Hague Convention defines an aircraft as being in
flight "at any time from the moment when all its external doors
are closed following embarkation until the moment when any such
door is opened for disembarkation."'' 8 Also:
[I]n the case of a forced landing, the flight shall be deemed
to continue until the competent authorities take over the
responsibility for the aircraft and for persons and property
on board.'8 9
As with the Tokyo Convention, 9 " the Hague Convention does not
apply to aircraft used in military, customs or police services. 19 1
The Hague Convention also applies:
[O]nly if the place of take-off or the place of actual landing
of the aircraft on board which the offense is committed is sit-

185. Hague Convention, supra note 112. As of January 21, 1921, 51 states
had become parties to the Convention. For text to the Convention, see 10 INT'L
LEGAL MATERIALS 133 (January, 1971).
186. Hague Convention, supra note 112, art. 1.
187. Tokyo Convention, supra note 103, art. 1(3).
188. Hague Convention, supra note 112, art. 3(1).
189. Id.
190. Tokyo Convention, supra note 96, art. 1(4).
191. Hague Convention, supra note 174, art. 3(2).

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CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL Vol. 5

uated outside the territory of the State of registration of that

aircraft; it shall be immaterial whether the aircraft is engaged
1 92
in an international or domestic flight.
Article 4 provides, in part, that:
Each Contracting State shall take such measures as
may be necessary to establish its jurisdiction over the of-
fense and any other act of violence against passengers or crew
committed by the alleged offender in connection with the of-
fense, in the following cases:
'(a) when the offense is committed on board an aircraft
registered in that State;
,(b) when the aircraft on -board which the offense is
committed lands in its territory with the alleged offender still
on board;
(c) when the offense is committed on board an aircraft
leased without crew to a lessee who has his principal place
of business or, if the lessee has no such place of business, his
permanent residence, in that State. 193
Other provisions of the Convention set forth rules relating to
joint air transport organizations or agencies, the duties of states in
regard to prosecution or extradition of alleged offenders, duties of
states in regard to assisting the aircraft commander, crew or pass-
engers, and the settlement of disputes.' 9 4
Unlike piracy, slave trading and use of the high seas for such
purposes was not originally brought within the scope of the uni-
versality principle by customary international law. There have
been a number of treaties entered into since the nineteenth cen-
tury, and since then slave trading has been recognized as an inter-
national crime falling within the universality theory. 95 The High
Seas Treaty provides that:
Every State shall adopt effective measures to prevent
and punish the transport of slaves in ships authorized to fly its
192. Id., art. 3(3).
193. Id., art. 4.
194. Id., art. 3(4), 3(5), 5, 6,7, 8, 10, 11, & 12.
195. L. OPPENHEIM, supra note 1, at 733-35. See the Convention to Sup-
press the Slave Trade and Slavery; concluded at Geneva, September 25, 1926; 46
Stat. 2183, T.S. No. 778, 60 U.N.T.S. 253; Protocol Amending the Slavery
Convention, done at New York, December 7, 1953, [1956] 1 U.S.T. 479, T.I.A.S.
No. 3532, 182 U.N.T.S. 51. See also the Supplementary Convention of the Aboli-
tion of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery,
done at Geneva, September 7, 1956, [1967] 3 U.S.T. 3201, T.I.A.S. No. 6418,
266 U.N.T.S. 3; Bassiouni and Nanda, Slavery and Slave Trade: Steps Toward
Its Eradication, 12 SANTA CLARA LAWYER 424 (1972).

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flag, and to prevent the unlawful use of its flag for that pur-
pose. Any slave taking refuge on board any ship, whatever
its flag, shall ipso facto be free. 196
Also, under article 22(1) (b) of the High Seas Treaty, a warship
may board a foreign merchant vessel on the high seas if there is
reasonable ground for suspecting that the merchant vessel is en-
197
gaged in the slave trade.
Individuals, therefore, have been made subject to certain
duties under international law, such as the duty to refrain from
committing piracy. The breach of such duties will make the in-
dividual subject to prosecution and punishment under international
law. This is true even though individuals have not yet been ac-
corded full status as subjects of international law. Since there is
neither a world legislative body to enact statutory international
law nor a world body to prosecute and administer punishment to
those individuals found guilty of international crimes, 9 8 each
state must act individually to enforce the universality theory. 99
The manner in which this has been accomplished takes several
forms: (1) a state may unilaterally enact municipal laws defining
such offenses, thus granting its courts jurisdiction; 20 0 (2) a state
may enter into conventions which define the rights and duties of
states in regard to certain universal offenses; 20 or (3) states may
combine their efforts and form international tribunals to try individ-
uals who commit such crimes.

196. High Seas Treaty, supra note 70, art. 13.

197. Id., art. 22(1)(b).
198. The idea of creating an international criminal court has been discussed
after World War I, and in particular, during 1937 in conjunction with the proposed
draft treaty on terrorism. For the creation of an international criminal court and
the enforcement machinery needed, see I BASSIOUNI AND NANDA, INTERNATIONAL
CRIMINAL LAW, part V (1973). In particular, note the contributions of Dautri-
ourt and Nepote. See also BASSIOUNI, INTERNATIONAL TERRORISM AND POLITICAL
CRIMES (1974). See also Draft Statute for an International Criminal Court,
articles 1 through 54, reproduced in 1953 Report of Committee on International
Criminal Jurisdiction, 9 GAOR Supp. 12, at 23, U.N. Doc. A/2645 (1954); Klein
and Wilkes, United Nations Draft Statute for an International Criminal Court:
An American Evaluation, in INTERNATIONAL CRIMINAL LAW, 513 (Mueller and
Wise ed. 1965).
199. For a detailed discussion, see Feller, in II BASSIOUNI AND NANDA, INTER-
NATIONAL CRIMINAL LAW, Part I (1973).
200. See 18 U.S.C. 1651 et seq. (1958).
201. This was done in the 1958 High Seas Treaty with regard to piracy, air-
craft hijacking, international traffic of narcotics, genocide and slave trade. See
High Seas Treaty, supra note 70.

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An example of the last possibility occurred after World War

II in what has probably been the most dramatic example of the
use of the universality principle in history. The victorious Allied
States formed the International Military Tribunal at Niirmberg to
try the highest-ranking German officials, and the International
Military Tribunal for the Far East to try Japanese war criminals.20 2
The concept of individual responsibility was one of the basic prin-
ciples of the Niirmberg Trials. The following words of the Tri-
bunal itself are unequivocal on this point:
It was submitted that international law -is concerned with
the actions of sovereign States, and provides no punishment
for individuals; and further, that where the act in question
is an act of State, those who carry it out are not personally
responsible, but are protected by the doctrine of the sover-
eignty of the State. In the opinion of the Tribunal, both
these submissions must be rejected . . Crimes against in-
ternational law are committed by men, not by abstract enti-
ties, and only by punishing individuals who commit such
203
crimes can the provisions of international law be enforced.
The Tokyo war crimes trials accomplished the same function
in the Far East. 04 Other non-international war crimes trials were
held in several states such as Austria, Belgium, Italy, Hungary,
Poland, the U.S.S.R., Yugoslavia, Germany, Czechoslovakia and
in the Philippines.20 5
The growth of international criminal law is ever expanding
the application of the universality theory of jurisdiction under
which those accused of international crimes are prosecuted. Con-
ventions and customary international law now recognize such in-
202. For a survey of the Niirmberg and Tokyo war crimes trials, see I BAS-
SiOUNI A.ND NANDA, INTERNATIONAL CRIMINAL LAW, Part V (1973), particularly
the contributions of Bierzanek and Roling. The Niirmberg International Mili-
tary Tribunal was established by the Charter annexed to the Agreement of August
8, 1945, for the Prosecution and Punishment of the Major War Criminals of the
European Axis, which was the result of the London Conference, conducted from
June 26 to August 8, 1945, by representatives of the United States, the United
Kingdom, the Provisional Government of France and the Union of Soviet Socialist
Republics. Agreement on the Prosecution and Punishment of Major War Crimi-
nals of European Axis, August 8, 1945, 59 Stat. 1544, E.A.S. No. 472.
. 203. Transcript of Proceedings of the Military Tribunal at Niirmberg, cited
in OPPENHEIM, supra note 1, at 342.
204. See I1 M. WHrrEMAN, DIGEST OF INTERNATIONAL LAw 962-1019 (1968).
See also In re Yamashita, 327 U.S. 1 (1946).
205. See 11 M. WHITEMAN, DIGEST OF INTERNATIONAL LAW 874-1017 (1968).
Activities of the United States and other states in regard to non-international war
crimes trials conducted both during and after World War 11 are discussed therein.

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ternational crimes to include aggression, crimes against the peace

and security of humankind, war crimes, genocide, racial discrimi-
nation, slavery, traffic in women and children, illicit international
traffic in narcotics and dangerous drugs, international distribu-
20 6
tion of obscene material, counterfeiting, hijacking, and piracy.
The most notable example of extradition for such interna-
tional crimes under the universality theory was the attempt to
prosecute Kaiser Wilhelm II in 1919 in accordance with the
Treaty of Versailles. Articles 227 and 228 established the prin-
ciple of international accountability for waging aggressive war, but
the Kaiser sought refuge in the Netherlands and his extradition
20 7
was denied on the grounds of -the political offense exception.
Since World War II, however, numerous cases of extradition of
war criminals were heard but invariably the extradition request
was made by -the state wherein the alleged crime was committed.
Thus, in practice, the universality theory has seen limited applica-
tion as a basis for extradition requests, even though it was relied
upon in Niirmberg and Tokyo. It is also worthy of note that these
were international rather than national tribunals.

VI. RECOMMENDATIONS FOR

A POLICY-ORIENTED INQUIRY INTO THE PROBLEMS OF
JURISDICTION IN EXTRADITION AND WORLD PUBLIC ORDER

When a state requests another to surrender a fugitive to its

jurisdictional control, it asserts that: (1) it has jurisdiction over
the subject matter of the conduct allegedly performed by the actor;
(2) it is a competent forum to prosecute the offender, and (3)
when the actor is surrendered, he or she will be properly submitted
to its judicial authorities for the exercise of their competent jurisdic-
208
tional authority.
These representations by the requesting state presuppose that
the requested state: (1) is competent to exercise in personam ju-
risdiction over the relator; (2) had legislative authority to regulate
the type of conduct allegedly committed by the relator and such
206. See, e.g., I BASSIOUNI AND NANDA, INTERNATIONAL CRIMINAL LAw (1973).
These international crimes are discussed as exceptions to the political offense ex-
ception in M. BAssIouNI, INTERNATIONAL ExTRADITION AND WORLD PUBLIC ORDER
Chapter VI, §§ 1, 1.6 (1974).
207. See Wright, The Legality of the Kaiser, 13 AM. POL. ScI. REV. 121
(1919).
208. See M. BASSIOUNI, INTERNATIONAL EXTRADITION AND WORLD PUBLIC OR-
DEt, ch. M (1974), concerning unlawful seizures and irregular rendition. See
also M. BASSIOUNI, supra note 166.

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conduct is deemed in violation of that state's laws; and (3) is the

competent forum to prosecute the offender. Concerning the sec-
ond point, namely proper legislative authority, the requesting state
may rely on any one of the theories discussed above and its munic-
ipal jurisdiction will be recognized unless it conflicts with an in-
ternational law norm, in which case the latter prevails. In the
event that the laws of the requesting state conflict with the laws
or public policy of the requested state, the question becomes
whether the law or policy of either state conflicts with international
law. If neither states' laws conflict with international law but only
conflict with each other, the requested state will prevail. In any
event, an offender should not benefit from a conflict of laws to
evade criminal responsibility and thus conflict of laws questions
must be resolved on the basis of the policy of aut dedere aut iudi-
care.29
As to the second requirement regarding the competent forum
for prosecution, international criminal law recognizes three the-
ories which can be relied upon. They are forum domicilius, 210
forum delicti commissi, 11 and forum deprehensious.21 2 The deter-
mination of a proper prosecution forum is a policy-oriented inquiry
within the framework of conflict of laws resolution.
The first formal contact between the requesting and re-
quested state is receipt of the extradition request by the requested
state who first considers whether the requesting state (1) has ju-
risdiction over the subject matter; (2) is the proper prosecution
forum, and (3) would have in personam jurisdiction once the rela-
tor is delivered. If a similar request is made by another state
claiming jurisdiction over the same subject matter arising either
out of the same conduct allegedly performed by that relator, which
the first requesting state equally claims, or by reason of another
conduct allegedly committed by the same relator against the other
requesting state, then the requested state has to decide the priority
among these competing requests. Furthermore, the requested
state may also have an interest in prosecuting the relator either by
reason of the same conduct alleged in one or both requests or by
reason of other alleged criminal conduct. In this case, it must
weigh its interest and those of the requesting state or states.
209. This term is utilized to convey the maxim that the nation must either
capitulate or proceed to judgment.
210. This term refers to the forum wherein the defendant is domiciled.
211. This term refers to the forum wherein the crime was committed.
212. This term refers to the forum wherein the defendant was arrested.

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In the case where there is only one extradition request and the
requested state has no concurrent interest or claim to the same re-
lator, six policy-oriented questions are proposed:
(1) Does the requesting state properly assert jurisdiction
over the subject matter and the relator?
(2) Does such jurisdiction exist in law and in fact?
(3) Is such jurisdictional claim contemplated by the treaty
or the practice of reciprocity or comity upon which the
request is made?
(4) Does such jurisdictional claim arise under (a) interna-
tional law; (b) international law as applied by the re-
questing state; (c) the municipal law of the requesting
state; and (d) the municipal law of the requested state?
(5) Does the jurisdictional basis claimed conflict with the
public policy of the requested state or is it so repugnant
to its system so as to deny it recognition?
(6) Is the jurisdictional claim asserted by the requesting
state violative on its face of the very basis on which it al-
legedly rests, whether it be international law, municipal
law or the application of international law in the munici-
pal law of either the requesting or requested state? 1
If there is more than one extradition request for the same re-
lator, the requested state must first satisfy itself concerning the set
of policy-oriented questions stated above. Thereafter, the state of
refuge must rank such requests. Four policy considerations for
ranking are suggested.
(1) First received will be first granted.
(2) The more serious offense receives priority.
(3) The most significant state interest affected by the al-
leged crime receives priority.
(4) Rank depends upon subject matter jurisdiction. That is,
a subranking based or jurisdictional theory could be ap-
plied as follows: (a) the territorial theory has prece-
dence over all others; (b) second in rank is the combi-
nation of two or more theories asserted by one request-
ing state (such as universality and passive personality or
passive and active personality); then should follow in or-
der (c) the universality theory, (d) the protective the-
ory, (e) the nationality theory, and (f) the passive per-
sonality theory.

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There are no clear guidelines in extradition law and practice

as to the applicable international law rule in concurrent jurisdic-
tional claims. The outcome is uncertainty of prosecution 21 and
potential conflict between the interested states.

VIn. CONCLUSION
International law recognizes the equal sovereignty of all na-
tion-states in the world community and does not grant any of them
a hierarchial authority over the other. Nonetheless, the requested
state must make a policy decision as to the applicability and pro-
priety of the requesting state's three jurisdictional requirements.
Furthermore, in the event of multiple requests, the requested state
is in a position to give priority to the request of one authoritative
decision maker over the other and thus it exercises a hierarchical
authority over co-equal participants in the world community sys-
tem. The requested state is, therefore, in a vertical relationship vis-
a-vis the requesting state and pursues that role with respect to con-
flict of laws issues arising out of the application of multiple theories
of jurisdiction.2 14 The significance of this decision-making function
is manifest whenever the requested and requesting state have dif-
ferent interpretations and policies as to the theories of jurisdiction
in question and their application.
International criminal law has come to recognize in varying
degrees and with different applications several theories of jurisdic-
tion. In extradition practice, jurisdictional issues are determined by
the requested state. That fact may not be as disconcerting in prac-
tice as it appears in theory because there is an anticipation that re-
quested states will apply their domestic theories and policies.
This realization ignores the broader implications with respect
to the international nature of the process. Such implications re-
quire that national theories of jurisdiction and their application
should be subordinated to international law rules. Thus, no
participant in the world constitutive process will be in a hierar-
chial position with respect to another co-equal participant.2 15
The recognition of the co-equal sovereignty of all states pre-
cludes harmony between the conflicting national laws of different
213. Comment Extradition: Concurrent Jurisdiction and the Uncertainty of
Prosecution in the Requested Nation, 14 WAYNE L. REv. 1181 (1968).
214. Falk, InternationalJurisdiction: Horizontal and Vertical Conceptions of
Legal Order, 32 TEMP. L.Q. 295 (1959).
215. Katzenbach, Conflicts on an Unruly Horse: Reciprocal Claims and Tol-
erances in Interstate and InternationalLaw, 65 YALE L.J. 1087 (1956).

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states, and conflicts of interpretation are difficult to resolve.

Since, however, there is no such harmony in national approaches
to jurisdiction, there is no alternative to the establishment of a
hierarchial norm (in theories of jurisdiction) to avoid conflict be-
tween co-equal authoritative decision-making processes. Such a
hierarchial norm would be applied by each state, and it would not,
therefore, detract from the sovereignty of any other state.
Among the several problems raised by this subject is, of course,
the inability of states, in the presently constituted world social
order, to develop the type of alternative policy solution described
above. The consequences arising from these problems are re-
flected in clashes between these horizontally related decision
making processes. The potential effect of such clashes is the
creation of conflict situations leading to threats and disruptions of
minimum world order.
These problems of conflict of criminal jurisdiction are largely
due to the narrow and jealously guarded concept of sovereignty.
The battles over where to prosecute an accused criminal over-
shadow the real substance of the issue, that being the merits in
prosecuting or punishing offenders. The alternative to the pres-
ent situation is to seek the proper applicable substantive law
rather than to dispute which forum should prosecute an accused
criminal.
The multiplicity of jurisdictional theories results not only in
conflict of laws problems, but also creates two other sets of prob-
lems: (1) an impediment to just and effective criminal law en-
forcement whether nationally or internationally; and (2) the sub-
jection of accused offenders to the risk of multiple prosecutions
and other violations of their human rights. Indeed, under the
passive personality doctrine or the nationality doctrine more than
one state can prosecute and punish a person for the same offense
and subject that person to multiple jeopardy.
The interest in preserving world public order does not con-
flict with the concern for preserving municipal public order, nor
will either one of these interests be impaired by preserving basic
human rights. None of these, however, can be served without
curtailing national sovereignty concepts in matters of extradition. 21

216. See Bassiouni, World Public Order and Extradition: A Conceptual Eval-
uation in AKTUELLE PROBLEME DAS INTERNATIONEN STRAFRECIrS, (Oehler and
Potz ed. 1970).

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