International Law

The Relationship between National and International Law & State Jurisdiction

Review

• Completed outlining the different actors with relative international legal personality.

Objectives

• Discuss the relationship between national and international legal systems.
• Discuss the exercise of national jurisdiction.

Understanding the National-International Law Relationship

• Monism: A single legal system under the supremacy of international law.
• Dualism: Two separate legal orders.
• Denza (2018): In practice, states vary on the monism-dualism spectrum according to domestic institutional and political processes.

International Law’s Impact on National Law

• International law asserts primacy:
  • VCLT Article 27.
  • International tribunals.
• International law:
  • Conditions national law.
  • Is primarily enforced nationally.
  • Has many uncertainties resolved nationally.
• International law does not dictate how it is applied/enforced.
• State constitutions determine the process of applying international law.
• However, particular areas of international law are more intrusive:
  • European Union.
  • International criminal law.

The Impact of International Criminal Law

• International law requires national assumption of criminal jurisdiction.
• International criminal law defines certain offenses.
• Often requires domestic legislative measures to prohibit offenses.
• ICC’s ‘principle of complementarity’.

Customary International Law & Domestic Law

• National legal systems accept international customary law as a part of national law.
• National judges identify and interpret customary law.
  • Reflects a legislative-like role.
• National courts:
  • Seek relevant domestic law.
  • Legislative provisions allowing application of customary law.
  • Evidence of state consent.
  • Conflicts with domestic law.

The National Application of International Law

• Varies significantly across states.
• National courts play a significant interpretive role:
  • Abbott v. Abbott (2010).
• The executive often directs national courts on questions of international law:
  • Cumaraswamy case (1999).
• Despite increasing integration of international law, some states are showing signs of national supremacy.

‘Jurisdiction’

• The limits of the legal competence of a state or other regulatory authority to make, apply, and enforce rules of conduct on persons.
• National jurisdiction determines the boundary of states’ particular political orders.

Types of Jurisdiction

• Prescriptive jurisdiction: The power to enact and assert law.
  • Principles: territoriality, nationality, universality, protection, passive personality.
  • ‘Extra-territorial exercise of jurisdiction’.
• Enforcement jurisdiction: The power to ensure compliance.

The Lotus Case (1927)

• Established the Lotus Principle.
• “[…] the first and foremost restriction imposed by international law upon a state is that […] it may not exercise its power in any form in the territory of another state” (France v. Turkey; PCIJ Ser. A, No, 10).

The Territorial Principle

• The right of a state to prescribe laws and impose them among everyone within its territory.
• Territory: includes land, territorial sea (12 nautical miles), above airspace.
• Objective territorial jurisdiction.
• Subjective territorial jurisdiction.

The Nationality Principle

• States have the right to extend the application of their laws to citizens abroad - ‘active personality’ principle.
• States have the right to decide who their nationals are and the process of (de)nationalization.

The Protective Principle

• Exercising jurisdiction when vital interests are at stake.
• Often used to combat counterfeiting currency, drug smuggling, and terrorism.

The Universal Principle

• Regarding crimes where every state has a legitimate interest.
• Piracy, genocide, war crimes, crimes against humanity.

Controversial Bases of Jurisdiction

• ‘Passive personality’:
  • United States v. Fawaz Yunis (1991).
• National technology.
• Unprincipled assertions of jurisdiction:
  • Guantanamo Bay.

Extending Jurisdiction: Treaties

• Treaties are the most important basis for extending jurisdiction:
  • 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation.
  • 1979 International Convention Against the Taking of Hostages.

Overlapping Jurisdiction

• Options: unilateral restraint, harmonization of policies, establish consultation procedures.
• In practice, the state with physical custody determines the exercise of jurisdiction.

Enforcement Jurisdiction

• Basic principle: enforcement is only exercised within one’s territory unless consent is granted.
• Extradition: Handing over an individual to another jurisdiction for criminal prosecution.
• Irregular rendition:
  • 1960 Israel-Argentina situation.

Extradition