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Week 6 – Jurisdiction

State Jurisdiction over Territory

Territory
Oppenheim:
• a defined portion of surface of the earth subjected to the sovereignty of a state
• state w/out territory impossible but it may be very small
• importance of state territory is that it is the space within which state exercises supreme authority

Land territory is the essential requirement (sine qua non) of statehood & the most potent display of state sovereignty.

Principal Modes of Acquisition of Territory: Roots of Title
• Conquest
• Cession
• Occupation
• Acquisitive Prescription
• Accretion, Avulsion & Erosion

All of these modes of acquisition must be accompanied by the intent to assert or exercise sovereignty (animus possidendi).

Conquest (valid until 1928):
• assertion of effective sovereign control over territory through military conquest
• requires actual possession (factum) and intention to take over (animus)
• rendered obsolete by Kellogg-Briand Pact & reinforced by Declaration on the Rights and Duties of States (1949) & Friendly Relations Declaration (1970)
• cannot even acquire in self defence
• Israeli occupation of territory after 1967 war illegal – ‘force cannot give good title'
• likewise denunciation of Iraqi attack on Kuwait

Occupation:
• means of establishing title over terrae nullius
• occupation follows ‘discovery' – discovery insufficient to establish title
• discovery must be accompanied by ‘animus' (intention) to exercise sovereignty
• tribal peoples do not live in terrae nullius – Western Sahara (1975)
• effective, continuous & peaceful display of exclusive territorial sovereignty
• not necessary to prove activity at all points in time to give rise to presumption sufficient to show some state activity– but existence of competing claims will entail stricter proof requirements: Island of Palmas (1928)

Acquisitive Prescription:
• displacement of sovereign through competing displays of sovereignty which ultimately overtake the former sovereign's title
• where occupation can only work re terrae nullius, AP can take place over any territory by continuous display of de facto sovereignty
• requires evidence of a great deal of state activity

Cession:
• transfer of sovereignty over territory by agreement
• requires change in law (treaty) & change in fact (transfer of possession)
• usually in a peace treaty after war
• distinguish from "renunciation" (unilateral renunciation of territory) & "abandonment" (unilateral withdrawal leaving terra nullius)
• emergence of principle of self-determination has made cession less likely

Accretion, Avulsion & Erosion:
• natural processes which result in extension/reduction of land thereby extend/reduce extent of sovereignty

Principal Legal Regimes Re: Relation of States to "Territory"

Full Sovereignty
• territory over which a state exercises all of the jurisdictional competencies permitted by international law

Res Communis
• no state is sovereign but all states can exploit the area for individual benefit (e.g. high seas, outer space)
• some states enjoy greater entitlements or jurisdiction (e.g. coastal)

Terra/Res Nullius
• land which is capable, but is not presently subject to state sovereignty

Common Heritage of Humankind (CHH)
• not subject to state sovereignty or exploitation for individual benefit exploitation allowed only for benefit of international community (e.g. deep seabed & subsoil, Moon, celestial bodies)

Territorial Sovereignty: 3D

"Territory" (thus sovereignty) is broader than land, & includes subsoil, waterways & territorial sea, & airspace.

Subsoil:
Principle of Appurtenance:
• territorial sovereignty extends to subsoil

Lakes & Rivers:
• sovereignty extends to all lakes, canals, & rivers bounded by land territory
• in the case of bodies of water between adjacent riparian states, the international boundary is set by treaty or by application of a median line (customary rule)
• rights in waterways are exclusively held by riparian states – free to establish regimes to the extent of their sovereignty
• riparian states on internationalised watercourses (e.g. Danube, Rhine) have resisted any encroachment on their exclusive riparian rights, choosing instead to permit access/use through treaties

Airspace

Whatever rule applies to the land applies to the airspace above
• territorial sovereignty extends to airspace
• other states may only use airspace with agreement/authorisation of the state, regardless of type of use emerged in wake of military/civilian aviation
• there is no agreement on an upward limitation, but 100-110 km above sea level has been suggested

Chicago Convention of International Civil Aviation (1944)
• unscheduled civil flights may enter without permission (provided they acquiesce to requests to land)
• prior authorisation is required for scheduled civil flights to enter
• state maintains privilege to revoke permission for national security or emergency reasons

1980 Protocol to Chicago Convention:
• no use of force against civilian aircraft instead, interception, escort, etc. required
• codification of customary prohibition on use of force to deny civilian entry
• such prohibition was clearly acknowledged by 1983 – downing of Flight KL007 denounced by international community
• established International Civil Aviation Organisation
• almost universal
• affirms customary rule of absolute sovereignty over airspace, but sets out permissive regime for its use by foreign aviators engaged in civil & innocent use

Jurisdictional Airspace Rights

Jurisdictional airspace rights extend beyond land, but do not constitute an extension of territorial sovereignty. State practice shows that coastal states may extend a limited functional jurisdiction into the high seas for security reasons.

Jurisdiction over Persons

Jurisdiction: denotes the exercise of powers by a state over events, persons, and property

A state has sovereign authority within its borders, therefore its power to legislate cannot be denied. May exercise its jurisdiction over the subject matter of anything within its territory.

Bases for Criminal Jurisdiction

There are 6 basis for jurisdiction – not all universally accepted

Because of the several bases, there may be concurrent jurisdiction.

1. Territorial Principle: state where crime committed has jurisdiction. This is the primary working rule. Territory includes the land mass
• subjective (or initiatory principle): the act may be deemed to have been committed in the place where it commenced.
• objective/effects (or terminatory) principle: the state where the act is consummated or where the last constituent element of the offence occurs has jurisdiction (Lotus Case)

2. Nationality Principle (active): The nationality of the offender as the basis for jurisdiction is used extensively in civil law countries. Common law countries, however, have been reticent in their use of this principle. Canada uses this principle only for treason, war crimes, crimes against humanity, and various international terrorist offences.
3. Nationality Principle (passive): (seldom used) claim to jurisdiction over foreign nationals on alien soil for crimes committed against the claimant country's nationals – not many countries pursue this rule generally. Mexico followed in Cutting case – ICJ opposed this principle in Lotus case.
4 Protective Principle: A state may exercise its jurisdiction over acts committed abroad that are prejudicial to its security, territorial integrity and political independence. (i.e. espionage) – problem of states broadly interpreting ‘security'
5. Universality Principle: A state claim jurisdiction over all crimes anywhere (generally considered contrary to intl law) – generally seen as less objectionable when applied to acts that are generally considered universally criminal (war crimes, terrorism, hijacking, piracy, war crimes)
6. By Agreement: Jurisdiction of one state with in the territory of another state may always be granted by agreement. Ex. Am. criminal laws operate on Am. military bases in Canada.

State Jurisdiction over Territory

Land territory is the essential requirement (sine qua non) of statehood & the most potent display of state sovereignty.

Principal Modes of Acquisition of Territory: Roots of Title
• Conquest
• Occupation
• Acquisitive Prescription
• Cession
• Accretion, Avulsion & Erosion

All of these modes of acquisition must be accompanied by the intent to assert or exercise sovereignty (animus possidendi).

Accretion, Avulsion & Erosion:
• natural processes which result in extension/reduction of land thereby extend/reduce extent of sovereignty

Principal Legal Regimes Re: Relation of States to "Territory"

Full Sovereignty
• territory over which a state exercises all of the jurisdictional competencies permitted by international law

Terra/Res Nullius
• land which is capable, but is not presently subject to state sovereignty

Territorial Sovereignty: 3D

"Territory" (thus sovereignty) is broader than land, & includes subsoil, waterways & territorial sea, & airspace.

Subsoil:
Principle of Appurtenance:
• territorial sovereignty extends to subsoil

Airspace

Chicago Convention of International Civil Aviation (1944)

• unscheduled civil flights may enter without permission (provided they acquiesce to requests to land)
• prior authorisation is required for scheduled civil flights to enter
• state maintains privilege to revoke permission for national security or emergency reasons

Jurisdictional Airspace Rights

JURISDICTION OVER PERSONS

Jurisdiction: denotes the exercise of powers by a state over events, persons, and property

A state has sovereign authority within its borders, therefore its power to legislate cannot be denied. May exercise its jurisdiction over the subject matter of anything within its territory.

Bases for Criminal Jurisdiction

There are 6 basis for jurisdiction – not all universally accepted

Because of the several bases, there may be concurrent jurisdiction.

1. Territorial Principle: state where crime committed has jurisdiction. This is the primary working rule. Territory includes the land mass
• subjective (or initiatory principle): the act may be deemed to have been committed in the place where it commenced.
• objective (or terminatory) principle: the state where the act is consummated or where the last constituent element of the offence occurs has jurisdiction (LotusCase)

2. Nationality Principle: The nationality of the offender as the basis for jurisdiction is used extensively in civil law countries. Common law countries, however, have been reticent in their use of this principle. Canada uses this principle only for treason, war crimes, crimes against humanity, and various international terrorist offences.
3. Passive Personality Principle: (seldom used) claim to jurisdiction over foreign nationals on alien soil for crimes committed against the claimant country's nationals – not many countries pursue this rule generally. ICJ opposed this principle in Lotus case.
4 Protective Principle: A state may exercise its jurisdiction over acts committed abroad that are prejudicial to its security, territorial integrity and political independence. (i.e. espionage) – problem of states broadly interpreting ‘security'
5. Universality Principle: A state claim jurisdiction over all crimes anywhere (generally considered contrary to intl law) – generally seen as less objectionable when applied to acts that are generally considered universally criminal (war crimes, terrorism, hijacking, piracy, war crimes)
6. By Agreement: Jurisdiction of one state with in the territory of another state may always be granted by agreement. Ex. Am. criminal laws operate on Am. military bases in Canada.