JURISDICTION

Jurisdiction concerns both international law and the internal law of each state. The former determines the permissible limits of a state’s jurisdiction2 in the various forms it may take, while the latter prescribes the extent to which, and the manner in which, the state in fact asserts its jurisdiction.3 Much of the law relating to jurisdiction has developed through the decisions of national courts applying the laws of their own states. Since in many states the courts have to apply their national laws irrespective of their compatibility with international law, and since courts naturally tend to see the problems which arise primarily from the point of view of the interests of their own state, the influence of national judicial decisions has contributed to the uncertainty which surrounds many matters of jurisdiction and has made more difficult the development of a coherent body of jurisdictional principles. International problems of jurisdiction arise almost exclusively where a state, either directly or through proceedings in its courts, seeks to assert its authority over persons, property or circumstances which (at least arguably) are or occur abroad. In such cases the questions which usually arise concern the actual or constructive location of the persons, property of circumstances in question; if

construed so as to apply extra-territorially;4 and, if they are so construed, whether the exercise of the jurisdiction involves any infringement of the rights of other states, or of generally accepted limits to national jurisdiction. Jurisdiction is not coextensive with state sovereignty, although the relationship between them is close; a state’s ‘title to exercise jurisdiction rests in its sovereignty’.5 That jurisdiction is based on sovereignty does not mean that each state has in international law a sovereign right to exercise jurisdiction in whatever circumstances it chooses. The exercise of jurisdiction may impinge upon the interests of other states. What one state may see as the exercise of its sovereign rights of jurisdiction another state may see as an infringement of its own sovereign rights of territorial or personal authority. In practice, however, it is only in relatively few cases that overlapping claims to jurisdiction cause serious problems, usually where the states concerned attach importance to the assertion of their competing claims, and more often in criminal cases (where the element of public authority is more evident)6 than in civil cases. Usually the coexistence of overlapping jurisdiction is acceptable and convenient; and forbearance by states in the exercise of their jurisdictional powers avoids conflict in all but a small (although important) minority of cases. Although it is usual to consider the exercise of jurisdiction under one or other of more or less widely accepted categories, this is more a matter of convenience than of substance. There is, however, some tendency now to regard these various categories as parts of a single broad principle according to which the right to exercise jurisdiction depends on there being between the subject matter and the state exercising jurisdiction a sufficiently close connection to justify that state in regulating the matter and perhaps also to override any competing rights of other states.7, 8

International jurisdiction is an aspect or an ingredient or a consequence of sovereignty (or of territoriality or of the principle of non-intervention – the difference is merely terminological): laws extend so far as, but no further than, the sovereignty of the state that puts them into force, nor does any legislator normally intend to enact laws which apply to or cover persons, facts, events or conduct outside the limits of his state’s sovereignty. This is a principle or, perhaps one should say, an observation of universal application. Since every state enjoys the same degree of sovereignty, jurisdiction implies respect for the corresponding rights of other states. To put it differently, jurisdiction involves both the right to exercise it within the limits of a state’s sovereignty and the duty to recognise the same right of other states.