JURISDICTION OF STATES IN INTERNATIONAL LAW

Learning objectives: Understanding the functions of jurisdiction; the difference

between domestic and international jurisdiction; forms of jurisdiction in international
law; how jurisdiction is used as a means of exercising state power.
1. The Concept of Territorial Jurisdiction
o Jurisdiction is the extent of the state’s power to regulate conduct or consequences of
events. It describes the obligations that states have over human rights instruments, and
it is used to refer to the national geographical space.
o The power of the state under international law to regulate or impact upon
people/property reflects the basic principles of state sovereignty. Sovereignty, in turn,
is founded on territory, for without a territory, there can be no state. The fundamental
principle of territorial sovereignty of states is guaranteed in Articles 2(4) and 2(7) of the
United Nations Charter. Also, Article 1 of the Montevideo Convention on the Rights
and Duties of States lays down the most widely accepted formulation of the criteria of
statehood in international law, that is, that a state as an international person must
possess (i) a permanent population, (ii) a defined territory, (iii) government, and (iv)
capacity to enter into relations with other states.
o State jurisdiction is not a ‘unitary concept’. Rather, it is made up of three, distinct
powers or competences recognised in international law, namely prescriptive (or
legislative), enforcement (executive) and adjudicative (judicial) jurisdiction
(Restatement (Third) of Foreign Relations Law of the United States 1987, § 40).
(i) Prescriptive jurisdiction empowers states to proscribe certain conduct through either
common law or national legislation. The jurisdiction to prescribe is the power of a state
to make its laws applicable to the activities and relations of persons or interest of persons
in things. This means that the substantive laws of the forum country apply to the
particular persons and circumstances. Prescriptive jurisdiction is concerned with
criminal jurisdiction and not civil jurisdiction.
(ii) Enforcement jurisdiction enables states to enforce those prescriptions, including
through investigations and prosecution. Enforcement jurisdiction relates to the capacity
of the state to act within the territory of another state. But because states are independent
of each other, such exercise of jurisdiction will require the consent or agreement of the
host state.
(iii) Adjudicative jurisdiction is the state’s capacity to determine the outcome of a matter
in which the state has exercised its enforcement jurisdiction, by way of adjudicating on
what has been prescribed. Adjudicative jurisdiction means that courts of a given state
may resolve a matter in respect of a person or thing where the state has jurisdiction to
prescribe the law that is sought to be enforced.
o These three forms of jurisdictions are interdependent and based on similar
considerations. However, there are essential differences between them. Generally,
while prescriptive and adjudicative jurisdictions can assume extraterritorial character,
enforcement jurisdiction may not, as it is restricted by territorial factors. This is because
a state can only make its laws applicable to the activities, relations or status of person
or the interests of person in things, by legislation, legislative instrument or the
determination by a court. To be able to enforce its legislation, legislative instrument or
court decision outside its territory, a state will require agreement with other states. For
example, if a Nigerian commits an economic crime in Nigeria and escapes to Ghana,
the Economic and Financial Crimes Commission (EFCC) can charge him/her under
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the relevant legislation of which Nigerian courts have jurisdiction to try and convict
him. But the EFCC or the police cannot send officers to the Ghana to enforce his arrest.
Nigeria has to apply to the authorities in Ghana for his arrest and extradition to Nigeria.
To do otherwise, that is, abducting the criminal inside the country would be a violation
of the territorial sovereignty of Ghana.
o When a state has jurisdiction to prescribe, it can appropriately apply its legal norms
to:
(i) conduct that wholly or substantially takes place within its territory,
(ii) the status of persons or interests in things present within its territory,
(iii) conduct outside its territory that has or is intended to have substantial effect
within its territory,
(iv) the activities, interests, status or relations of its nationals outside, as well as
within its territory, and
(v) certain conduct outside its territory by persons, who are not its nationals, that
is directed against the security of the country or a limited class other than
national interest.
o International law limits the power of the state to exercise jurisdiction in cases that
involve interests or activities of non-residents. If a state has jurisdiction to prescribe, the
jurisdiction to adjudicate and enforce will have to be examined.
o It is necessary to differentiate between jurisdiction under public international law and
private international law. While the issue of jurisdiction under public international law
is about the limit of the exercise of state governmental powers, jurisdiction in private
international law is about the power of a state to determine cases involving a foreign
element, and if it has, which rules will be applied in resolving the matter. The focus here
is on the former.
o Jurisdiction may relate to criminal or civil matters. However, the focus with regard to
jurisdiction under public international law is on criminal jurisdiction, in which a
number of definite principles on jurisdiction have emerged.
2. Extra-Territorial Jurisdiction and its Problems in International Law
Difficulties Identifying Jurisdictional Rules
o Jurisdiction of states is governed by customary international law with regards to two
principles: state practice (usus) and opinio juris.
o Regarding enforcement jurisdiction, states may exercise jurisdiction only within its
territory—though the Lotus case went further. This case provided a wider discretion
referred to as the permissive approach adopted by the Permanent Court of International
Justice. With regards to this permissive approach, it meant that, unless there is a rule in
international law prohibiting this approach—the wide discretion to exercise
extraterritorial jurisdiction can be adopted. This is a deviation from the rule that you
must only exercise jurisdiction within your own territory.
Criticism of the Locus Case
o States can only exercise extraterritorial jurisdiction when they can rely on a rule
allowing them to do so, this is the restrictive approach. Whereas the Lotus case decision
is that states have a wide jurisdictional discretion, except there is a rule in international
law prohibiting that discretion. This constitutes the permissive approach.

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Problem Associated with State Practice and Opinio Juris
o They create dimensional problem: state practice has differed in how jurisdictional
rules are applied. Why is it a problem? The challenge is twofold:
(i) states take into account both international and domestic law, as well as policy
considerations, when exercising jurisdiction (or refraining from doing so), and
(ii) states do not react to each and every exercise of jurisdiction by other states.
o In essence, this means that a state could decide to exercise or not to exercise
jurisdiction based on their own domestic laws or policy considerations. The question
then arises: Does the choice to exercise jurisdiction reflect state practice or opinion juris,
or does it merely reflect domestic concerns of the state?
o In 1994, South Africa adopted the restrictive approach, when the Constitutional Court
of South Africa in Kaunda and Others v. President of the Republic of South Africa, stated that
the Lotus case ‘has been criticised by a substantial number of authorities’, and
determined that ‘when the application of a national law would infringe the sovereignty
of another state that would ordinarily be inconsistent with and not sanctioned by
international law.’ The Constitutional Court seemed to have opted for the restrictive
approach, which was confirmed in S v Basson, in which the Court examined the ‘scope
of criminal jurisdiction in South Africa,’ and concluded that jurisdiction is typically
territorially constrained and can only be exercised extraterritorially in a small number
of exceptional circumstances (generally relating to the nature of the crime). However,
certain legislation in South Africa also provide for extraterritorial jurisdiction, such as
Prevention of Combatting of Corrupt Activities Act.
o In S v Mharapara, the Zimbabwean Supreme Court held: international law merely
permits every state to apply its jurisdiction against its own citizens even when they are
situated outside its boundaries.
3. Grounds on which Jurisdiction Can be Claimed
Nationality Principle
o The nationality principle can be categorised into the active and passive. While the
active nationality principle is based on the nationality of the person accused of the
crime, the passive nationality principle is built around the nationality of the victim of
the crime.
(i) Active Nationality:
o A state has jurisdiction over its own nationals wherever they act. This principle is
based on the nationality of the accused person. It is linked to the principle of
sovereignty.
o In terms of the nationality principle, a state may choose to exercise jurisdiction over
crimes committed abroad, that is, extraterritorial jurisdiction, when they are committed
by nationals of that state. Under this principle, a state can exercise jurisdiction to
prosecute its national who has committed a crime irrespective of where such crime was
committed.
(ii) Passive Nationality:
o The passive personality principle is the reverse of the active nationality principle. In
terms of the passive nationality principle, a state may choose to exercise jurisdiction
over extraterritorial crimes committed or intended to be committed against its nationals.

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In other words, the principle is built around the victim of the crime in question, which
constitutes the link to the state.
o The exercise of jurisdiction is based on a state choosing to exercise jurisdiction over
the extraterritorial crimes that were committed against their own nationals abroad.
Essentially, where a foreigner commits a crime outside the territory of the state, which
affects its national, the state can assume jurisdiction (Cutting case (1887) U.S. For Rel.,
751; United States v Yunis (No. 2) (1988) 82 I.L.R. 344).
o The common law approach restricts the exercise of the nationality principle to serious
offences. Serious offences include: crimes against humanity, war crimes, genocide,
human trafficking, sexual offences, etc. Therefore, it would appear unlikely for a
common law country to invoke the nationality principle to exercise jurisdiction on lesser
offences or actions that do not constitute an offence abroad. For example, in State v
Basson, the Constitutional Court of South Africa expressed the view that a South African
court punishing a national for actions that are legal in another country would go against
the courtesy offered to that state (CCT 30/03) [2004] ZACC 13, 10 March 2004).
o In contrast, in civil law countries a national is liable to prosecution in the forum for
an offence committed abroad, which is punishable under the law of the forum and also
punishable under the law of the country where the offence is committed (Public
Prosecution/Y., HR May and September 1957, 24 Int’l Rep. 264, 265 (1957)).
Protective Principle
o The protective principle is concerned with protecting the special interests of a state
that are harmed or disadvantaged by the crime in question. In general, these interests
pertain to the protection of the internal security of the state. Protective jurisdiction is
usually invoked where the victim the crime is against the government or sovereign itself.
The crimes that can lead to claiming protective jurisdiction include espionage, treason,
disseminating harmful propaganda, economic sabotage, financial crimes, money
laundering, terrorism, etc.
o A state has jurisdiction over foreigners who perform acts outside the state which
endanger the safety of the state (United States v Rodriquez 182 F.Supp. 479(S.D. Cal.
1960; Joyce v DPP [1946] A.C. 347; Eichmann case (1961) 36 I.I.R. 5 and (1962) 36 I.L.R.
277).
Territorial Principle
o By the territorial principle, a state has jurisdiction over all crimes committed within
its territory, irrespective of whether the offender is a foreigner. This principle aligns with
the logical manifestation of the international legal order, which is predicated on state
sovereignty. Jurisdiction based on the principle of territoriality is the most effective and
efficient, as there is the advantage of immediate accessibility to evidence and relevant
witnesses, subsequent minimisation of expenses and judicial time (Bantekas and Nash,
International Criminal Law (2nd edn, Cavendish, 2003) 143 cited in Oraegbunam (2015)
NAUJILJ 60). In the Lotus case, it appears the Permanent Court of International Justice
stretched the territorial principle by considering the damage to the Turkish vessel as
equivalent to affecting Turkish territory so as to enable it exercise jurisdiction based on
objective territorial principle or the effects principle.
Effects Principle
o The effects principle entails a state assuming jurisdiction over an act performed
outside its territory which has an effect inside its territory. It is not limited to where the
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crime was completed but what the effects of the crime are. Where an offence
commences outside the territory of a state, but its effect is felt within the territory of
another state, the latter state can exercise jurisdiction over the offence. It has been
argued that the effects principle is an extension of the objective territoriality principle.
Examples of crimes that may have effects beyond the borders where they are committed
include acts of terrorism, money laundering, slavery and human trafficking,
cybercrimes, etc.
Universal Jurisdiction Principle
o Universal jurisdiction, sometimes referred to as ‘universal interest’ jurisdiction, allows
a state to claim jurisdiction over crimes with a universal dimension. Historically,
universal interest jurisdiction was the right of any sovereign to capture and punish
pirates (piracy). It has, however, been expanded to include more of jus cogens: for
example, slavery, air hijacking and international crimes (genocide, crimes against
humanity and war crimes) (Rome Statute of the International Criminal Court, Article
5), as well as the crime of aggression, which is yet to enter into force. The universality
principle appears to have a propensity to expand the list of crimes in the future to include
cybercrimes.
o Under the universality principle, all states have jurisdiction to try particular offences
on the basis that the crimes involved are regarded as offences against the international
community as a whole (A Oyebode, International Law and Politics: AnAfrican Perspective
(Bolbay Publisher, 2003) 54).
o Therefore, principle of universal jurisdiction can be adopted by states in the absence
of any jurisdictional link, as ‘international crimes may be dealt with internationally or
preferable nationally’ (David Re, ‘International Crimes: A Hybrid Future?’ in Ebo-
Osuji and Emeseh (eds), Nigerian Yearbook of International Law 2017, 173). It is the
exercise of criminal jurisdiction based purely on the nature of the crime. It disregards
the location of the crime, the country of the accused or proven perpetrator, the
nationality of the victim, or any other ties to the state exercising such jurisdiction. The
purpose of the universal jurisdiction principle is to ensure that perpetrators of
international crimes do not go unpunished wherever they may flee to.
o In 2016, the Supreme Court of Appeal of South Africa decided that the South African
government had breached its obligations both under the South African Implementation
of the Rome Statute of the International Criminal Court Act 2002 and international
law, by failing to arrest and detain for surrender to the ICC Sudanese President Omar
Al-Basir, who visited South Africa in June 2015 to attend the African Union summit.
The court held that under the Act, international law immunities, including the
immunity of heads of states, do not apply under South African law when a person is
sought for domestic prosecution in South Africa for international crimes committed
abroad, as the Act provides for universal jurisdiction over those crimes (Implementation
of the Rome Statute of the International Criminal Court Act 2002, section 4(2) &(3)).
o The question then arises: Whether international law requires a suspect to be resident
in the state when exercising universal jurisdiction? ‘Strict or conditional’. Or can such
universal jurisdiction be exercised regardless of where the suspect is? “Pure and
absolute”. Those who argue “strict and conditional” jurisdiction blur prescriptive
jurisdiction and adjudicative and enforcement jurisdiction. The territorial limitations of
adjudicative and enforcement jurisdiction is imposed on prescriptive jurisdiction. The
issue arises when they use the limitations that flow from adjudicative and enforcement
jurisdiction, and they import it to prescriptive jurisdiction.
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o In National Commissioner of the South African Police Service v Southern African Human
Rights Litigation Centre (ZACC 20 2015(1) SA 315 (CC)), the Constitutional Court of
South Africa dealt with the issue of whether the presence of a suspect is required under
international law for an investigation of international crimes to take place. The court
held that without violating the South African Constitution or international law, the
exercise of universal jurisdiction for the purpose of an investigation into an international
crime committed outside South African territory may take place in the absence of a
suspect. However, the presence of the suspect at some point in the court proceedings is
required.
o In order to secure jurisdiction of a South African Court for the purposes of Section
4(3) of the Implementation of the Rome Statute of the International Criminal Court
Act: Any person who commits an international crime outside the territory of South
Africa, such a crime is deemed to have been committed in South Africa, if that person
after the completion of the crime is present in the territory of the Republic. Regarding
the constitutional requirement that an accused person be present during a trial, the
Constitutional Court of South Africa determined that while presence is required under
the ICC Act for the prosecution of an international crime in a South African court, it is
not necessary for the investigation of the crimes under the Act. This is consistent with
its conclusions about the legal requirement of presence under international law. What
is not apparent, however, is when the ICC Act calls for presence to be made. Thus, the
court deferred the obligation to have the accused person present in court to the latter
phases of criminal proceedings (the prosecution or trial phases, where a court is
involved), although it did not specify when these phases would start.
4. Approaches in the Exercise of State Jurisdiction
(i) Restrictive Approach: The restrictive approach allows a state to exercise extra-
territorial jurisdiction when a rule of international law exists. This is the position under
customary international law.
(ii) Permissive Approach: The permissive approach allows a state to exercise wide
jurisdictional discretion, in terms of prescriptive and adjudicative jurisdiction—unless
there is a rule that prohibits such a wide discretion. This is supported by the Lotus case
(France v Turkey 1927 PCIJ, Series A, No. 10, Sept 7).