Government 1740Government 1740

Lecture 7: Jurisdiction and

Immunity

INTERNATIONAL LAWINTERNATIONAL LAW Summer 2006

OUTLINEOUTLINEI. The general issue

II. Types of jurisdiction

A. Territorial

B. Personal

C. Universal

III. Jurisdictional controversies

A. Extraterritorial US sanctions

B. Extralegal apprehension

IV. Immunity

I. The General IssueI. The General IssueWho has authority…

to apply law?

to enforce law?

to adjudicate law?

Sources of law on Sources of law on JurisdictionJurisdiction

Domestic Courts

Foreign Courts

State Practices

Treaties

Types of JurisdictionTypes of Jurisdiction

Territorial Jurisdiction

Personal Jurisdiction

Universal Jurisdiction

Territorial JurisdictionTerritorial Jurisdiction

Most clearly conceded by international law Essential to sovereignty Presence, not necessarily residence Transient jurisdiction: “Fleeting visits” can

establish jurisdiction

American Banana v. American Banana v. United Fruit (1909)United Fruit (1909)

•U.S. Supreme Court

•Sherman Act

•No jurisdiction: outside the territorial jurisdiction of U.S.

Jurisdiction extends to theJurisdiction extends to theTerritorial SeaTerritorial Sea

Over the Top (1925)Over the Top (1925) U.S. claimed it could

enforce tariff law beyond its territorial sea

Tariff Act of 1922

British Schooner stopped near Block Island, RI

U.S. District Court: no jurisdiction

The Lotus Case (1927)The Lotus Case (1927)Decided by the PCIJ

French mail steamer (Lotus) collided with Turkish coal ship, which sank

Subjective Territoriality Rule: Effects on “Turkey”

Turkey awarded jurisdiction

““Effects” Arguments:Effects” Arguments:Forces set in motion outside the territory of a

state but having an injurious effect within it should be within the jurisdiction of the harmed states

Examples in treaty law:– Geneva Convention for the Suppression of

Counterfeiting Currency (1929)– Geneva Convention for the Suppression of

Illicit Drug Traffic (1936)

US v. The Aluminum US v. The Aluminum Company of America Company of America

(1945)(1945)

Alcoa & foreign cartelU.S. claimed violations of the Sherman Act with

effects in the USUS Court Accepted jurisdiction Held: violation of Sherman Act

Personal (National) Personal (National) JurisdictionJurisdiction

States have authority over own nationals

What are the standards of nationality?– birth within a country's territory– nationality of parents– nationality of spouse– acceptance of public office– permanence residence.

ExtraditionExtradition

When a foreign state chooses to submit an individual to the jurisdiction of the home state or allow the home state to perform official acts within its own territory

Example: U.S.-U.K. Extradition Treaty (1972)

Universal JurisdictionUniversal Jurisdiction

Defendant’s conduct sufficiently heinous as to violate the laws of all states

Conduct in question can be started and completed anywhere

All states may prosecute

Augusto Pinochet

The Pros and Cons of The Pros and Cons of Universal JurisdictionUniversal Jurisdiction

Pros?– The possibility of universal justice

Cons?– Weak controls over filing suits?– Politicization (of claims and shutting them down)

III. III. Jurisdictional Jurisdictional Controversies:Controversies:

Extraterritorial applications of US law– Export Administration Act (expired)– International Emergency Economic Powers Act– Helms Burton Act

Extralegal extraterritorial apprehension– The Eichmann Case– US v. Alvarez-Machain (1992)

Adolf Eichmann CaseAdolf Eichmann Case

US v. Alvarez-MachainUS v. Alvarez-MachainAbduction of accused torturer of a US Drug Enforcement Agent

from Mexico to Texas

V. Immunity:V. Immunity: Foreign states and heads Foreign states and heads

of stateof state Rationale

Exceptions

US Statutes

Waiver

Diplomatic Representatives Diplomatic Representatives and Consulsand Consuls

Free to perform official business

Not to be harassed, interfered with, or disturbed by local law

Vienna Convention on Diplomatic Relations (1961).

The Iranian Hostage Crisis The Iranian Hostage Crisis 1979-19801979-1980

Barry Rosen and Abbas Abdi, Paris 1998

American Diplomats as Hostages, Iran 1979

Other ImmunitiesOther Immunities

Public ships of foreign states

Foreign armed forces

Summary:Summary: Jurisdiction means legal authority Territorial and national jurisdiction are widely accepted

principles; “effects” much less so. US has also engaged in highly controversial efforts to

extend its laws to foreign enterprises The concept of universal jurisdiction has developed to

deal with cases involving particularly heinous crimes. Extradition Treaties are a way for states to coordinate

jurisdictional claims. Examples of other controversial methods to gain

jurisdiction: extra-legal apprehension Immunity from prosecution in national courts applies to

state representatives acting in their official capacity.