ABSTRACT
Jurisdiction refers to the power of each State under international law to prescribe and enforce its municipal laws with regard to persons and property. This power is exercised in three forms, which correspond to the three branches of government. Hence, legislative or prescriptive jurisdiction relates to the competence to prescribe the ambit of municipal laws, judicial jurisdiction relates to the competence of courts to apply national laws and enforcement jurisdiction refers to the ability of States to enforce the fruits of their legislative or judicial labour (for example, gathering of evidence, arrest and infliction of sanctions). While prescriptive and judicial jurisdiction may assume an extra-territorial character, enforcement jurisdiction generally cannot.1 In the sense described, jurisdiction may be both civil and criminal. With the growth of interstate commerce and movement of persons across international borders since the 18th century, Lord Halsbury’s assertion that, ‘All crimes are local . . . jurisdiction is only territorial’,2 must be viewed as obsolete today. Until recently, there did not exist even a general set of rules delineating conflicts of criminal jurisdiction. While conduct occurring solely on the territory of one country could logically fall within that country’s competence, a conflict of criminal laws existed where harmful conduct, or its effects, were perpetrated or felt in more than one State. At the same time, the application of the general rule whereby a State may unilaterally lay claim to jurisdiction in a particular case, with the sole proviso that no other rule of international
law is opposed to it, creates further conflicts. Not surprisingly, there does not exist a general agreement resolving issues of concurrent criminal jurisdiction. Problems of concurrent legislative jurisdiction, and in particular with regard to criminal matters, are satisfactorily dealt with only where they have been regulated by treaty,5 but even these subject-specific treaties provide for a variety of jurisdictional bases with no clear hierarchical order. The jurisdictional principles contained in criminal treaties are the product of national criminal practice and, to the extent they are uniformly applied, they may be regarded, albeit with caution, as reflecting general principles of national law. These are the principles of territoriality, active personality (or nationality), passive personality, universality and the protective principle.
