State Jurisdiction in International Law

I. Introduction: The Clash of Sovereignty and Justice

State jurisdiction is the power of a State under international law to govern persons and property by its municipal law. Traditionally, jurisdiction was a manifestation of absolute sovereignty—a State could do whatever it pleased within its borders.

However, for the Human Rights scholar, jurisdiction is no longer just about “power”; it is about responsibility. The central debate in modern international law is the tension between the Lotus Principle (States are free to act unless prohibited) and the Universalist Principle (States have a duty to prosecute jus cogens crimes like genocide and torture, regardless of borders).

There are two distinct forms of jurisdiction:

Prescriptive Jurisdiction: The power to make laws applicable to persons/events (can be extraterritorial).¹
Enforcement Jurisdiction: The power to physically enforce those laws (strictly territorial—you cannot send police into another country).

II. The Five Principles of Jurisdiction

International law recognizes five bases upon which a State can claim jurisdiction.² the evolution from strict territoriality to universality is the key narrative.

Principle	Concept	Human Rights Significance
1. Territorial	State has jurisdiction over crimes committed on its soil.	The bedrock rule. Includes Subjective (crime starts here) and Objective (crime ends/has effects here).
2. Nationality (Active)	State prosecutes its own nationals for crimes committed abroad.	Allows states to police their citizens’ HR violations (e.g., sex tourism laws).
3. Passive Personality	State prosecutes foreign offenders because the victim is a national.	Controversial, but used in terrorism and hostage-taking cases.
4. Protective	State prosecutes acts threatening its national security (e.g., counterfeiting, espionage) committed abroad.	Often abused by authoritarian regimes to target dissidents abroad.
5. Universal	The “Holy Grail” of HR Law. Jurisdiction over crimes so heinous they offend humanity as a whole, regardless of location or nationality.	The legal basis for prosecuting piracy, genocide, torture, and war crimes anywhere.

Here is an in-depth elaboration of the Five Principles of State Jurisdiction, analyzed through landmark jurisprudence.

In international law, for a State to exercise authority (Prescriptive Jurisdiction) over an individual or event, it must show a “genuine connection” or nexus between the State and the event.¹ Without this nexus, the exercise of power is an interference in the sovereignty of another State.

There are five accepted principles that establish this nexus.

1. The Territorial Principle (The Primary Rule)

Maxim: Quidquid est in territorio est etiam de territorio (Whatever is within the territory is of the territory).²

This is the most fundamental basis of jurisdiction. It asserts that a State has absolute authority over all persons, property, and events within its physical borders.³

Nuance: Subjective vs. Objective Territoriality

Subjective: The crime commenced within the State (e.g., A person shoots a gun across the border from State A).
Objective (Effects Doctrine): The crime was completed or had effects within the State, even if the actor was outside.

**Case Law: The S.S. Lotus Case (France v. Turkey) (1927) (PCIJ)**⁴

Fact: The French ship Lotus collided with a Turkish ship on the high seas, killing Turkish sailors. Turkey arrested the French officer, Demons. France argued Turkey had no jurisdiction because the act (negligence) happened on a French ship (floating territory).
Decision: The PCIJ ruled in favor of Turkey based on Objective Territoriality.
Rationale: The Court held that while the act originated on the French ship, the effect (death) occurred on the Turkish ship. Therefore, the crime is deemed to have been committed on Turkish territory.
LL.M. Insight: This case established the “Lotus Principle”—States are free to extend jurisdiction unless a specific prohibitory rule exists.⁵

2. The Nationality Principle (Active Personality)

Maxim: Nemo potest exuere patriam (No one can cast off their country).

This principle allows a State to prosecute its own nationals for crimes committed anywhere in the world.⁶ It is based on the allegiance a citizen owes to their State.

Human Rights Significance

This is crucial for combating “sex tourism” or corporate crimes. Laws like the UK’s Sexual Offences Act or the US PROTECT Act allow states to prosecute their own citizens for abusing children abroad, even if the act is not a crime in the local jurisdiction.

**Case Law: Blackmer v. United States (1932) (US Supreme Court)**

Fact: Blackmer, a US citizen living in France, was subpoenaed to testify in a US court regarding the Teapot Dome Scandal. He refused, claiming the US court had no power over him in France.
Decision: The US Supreme Court upheld the jurisdiction.
Rationale: The Court ruled that distinct from territorial presence, allegiance binds the citizen to the State. The obligations of citizenship travel with the individual.

3. The Passive Personality Principle

Concept: Jurisdiction based on the nationality of the victim.

Historically, this was the most controversial principle (disliked by the US and UK) because it subjects a foreigner to laws of a country they have never visited and may not know. However, the rise of terrorism has legitimized it.

**Case Law: United States v. Yunis (1989) (US District Court)**

Fact: Fawaz Yunis, a Lebanese national, hijacked a Jordanian flight in Beirut. Two American citizens were on board. The US FBI arrested him in international waters.
Issue: Can the US prosecute a Lebanese man for hijacking a Jordanian plane in the Middle East just because Americans were passengers?
Decision: Jurisdiction Upheld.
Rationale: The court accepted the Passive Personality Principle (and Universal jurisdiction) for hostage-taking and terrorism. It argued that in an era of terrorism targeting nationals specifically, the State has a right to protect its citizens globally.

4. The Protective Principle

Concept: Jurisdiction over acts committed abroad by non-nationals that threaten the security, integrity, or vital economic interests of the State (e.g., counterfeiting currency, espionage, visa fraud).

Unlike the Passive Personality principle (which focuses on the individual victim), this protects the State itself.

**Case Law: Joyce v. DPP (1946) (UK House of Lords)**

Fact: William Joyce (“Lord Haw-Haw”) was an American citizen who held a British passport. During WWII, he broadcast Nazi propaganda from Germany. He argued the UK could not try him for treason as he was a foreigner acting in Germany.
Decision: Convicted of Treason.
Rationale: The House of Lords used the Protective Principle (mixed with a loose form of nationality). By holding a British passport, he claimed the protection of the Crown; therefore, he owed allegiance. His actions threatened the realm’s security, justifying jurisdiction despite his location and actual nationality.

5. The Universal Principle (Universal Jurisdiction)

Concept: Hostis humani generis (Enemy of all mankind).

This principle allows any State to prosecute specific heinous crimes (Piracy, Genocide, Torture, War Crimes) regardless of where they occurred or the nationality of the perpetrator/victim.⁷ The “nexus” is the nature of the crime itself.

**Case Law: Attorney General of Israel v. Eichmann (1961) (Israel SC)**

Fact: Israel prosecuted Adolf Eichmann for the Holocaust, despite the crimes occurring in Europe before Israel existed.⁸
Decision: The court relied on Universal Jurisdiction.
Rationale: “The abhorrent crimes… are not crimes under Israel law alone. These crimes, which struck at the whole of mankind and shocked the conscience of nations, are grave offenses against the law of nations itself (delicta juris gentium).”

**Case Law: R v. Bow Street Magistrate, ex parte Pinochet (No. 3) (1999) (UK House of Lords)**

Significance: This case limited the defense of “Sovereign Immunity” against Universal Jurisdiction.
Rationale: The Lords held that while a former Head of State has immunity for official acts, torture cannot be an official function of a State. Therefore, Pinochet could be extradited to Spain to face trial under universal jurisdiction principles (codified in the Convention Against Torture).⁹

Notes:

Territoriality is King: It is the default. All other principles are exceptions that require justification.
The “Subsidiarity” of Universal Jurisdiction: While valid, Universal Jurisdiction is often treated as a “last resort” (subsidiary).¹⁰ Ideally, the Territorial State or the National State should prosecute. Universal jurisdiction kicks in when those states are unwilling or unable to prosecute (a concept central to the International Criminal Court).¹¹
The “Lotus” Tension: The tension between the Lotus case (State freedom) and the Arrest Warrant case (State immunity) represents the current struggle in international law. While States theoretically have jurisdiction to prosecute war criminals (Lotus/Universal), they are often blocked by procedural rules of immunity (Arrest Warrant) to preserve diplomatic relations.

The evolution of these principles reflects the shift from a State-centric to a Human-centric international law. The Protective and Passive Personality principles expanded the arm of the State to protect its own interests.¹² However, the Universal Principle represents the ultimate evolution: the realization that some interests—specifically the protection of human dignity—are not national, but global. As the court in Eichmann noted, in these cases, the prosecuting State acts not just for itself, but as an agent for the international community.

III. Landmark Case Laws

Here are the essential cases that define the boundaries of jurisdiction, highlighting the shift from sovereignty to accountability.

1. The S.S. Lotus Case (France v. Turkey) (1927)

Court: Permanent Court of International Justice (PCIJ)
Summary Facts: A French ship (Lotus) collided with a Turkish ship on the high seas, killing 8 Turkish sailors. When the Lotus docked in Istanbul, Turkey arrested the French officer on watch, Demons. France claimed Turkey lacked jurisdiction over a French national on the high seas.
Issue: Did Turkey violate international law by exercising jurisdiction over a French national for acts outside Turkish territory?
Decision:No Violation.
- The “Lotus Principle”: Restrictions on states cannot be presumed. Unless there is a specific rule prohibiting it, a State is free to extend its jurisdiction.
- Objective Territoriality: Turkey had jurisdiction because the effects of the negligence (death of sailors) were felt on the Turkish ship (which is floating Turkish territory).

2. Attorney General of Israel v. Eichmann (1961)

Court: Supreme Court of Israel
Summary Facts: Adolf Eichmann, a Nazi architect of the Holocaust, fled to Argentina.³ Israeli agents captured him and brought him to Jerusalem to stand trial for crimes against humanity committed in Europe before Israel even existed.
Issue: Can Israel claim jurisdiction over crimes committed by a non-national, outside its territory, against non-nationals, before the State was founded?
Decision:Jurisdiction Upheld.
- The Court relied on Universal Jurisdiction and the Protective Principle.
- The crimes (Genocide) are delicta juris gentium (crimes against the law of nations).⁴ The “linking point” is not territory, but the universal nature of the atrocity.

3. Arrest Warrant Case (Democratic Republic of the Congo v. Belgium) (2002)

Court: International Court of Justice (ICJ)
Summary Facts: A Belgian judge issued an international arrest warrant against Congo’s sitting Foreign Minister (Yerodia) for war crimes, relying on Belgium’s universal jurisdiction law. Congo argued this violated the minister’s diplomatic immunity.
Issue: Can a State use Universal Jurisdiction to prosecute an incumbent (sitting) Foreign Minister?
Decision:Immunity Prevails.
- While Universal Jurisdiction exists, it does not bypass procedural immunities.
- High-ranking state officials enjoy absolute immunity from foreign criminal jurisdiction while in office to ensure effective diplomacy.
- Critique: This was seen as a setback for human rights, creating a temporary “shield” for war criminals in power.

4. R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (No. 3) (1999)

Court: UK House of Lords
Summary Facts: Spain requested the extradition of Augusto Pinochet (former dictator of Chile) from the UK for torture.⁵ Pinochet claimed “State Immunity” (Act of State doctrine) as a former Head of State.⁶
Issue: Does a former Head of State enjoy immunity for acts of torture committed while in office?
Decision:No Immunity.
- Torture cannot be considered a “legitimate function of a State.”⁷
- Under the Convention Against Torture, which both UK and Chile signed, there is an obligation to prosecute (aut dedere aut judicare).⁸
- Significance: This pierced the corporate veil of the State. An individual cannot hide behind the State to commit jus cogens crimes.

IV. Human Rights & Extraterritorial Jurisdiction

Issue: Does a State’s human rights obligation extend beyond its borders?

Bankovic v. Belgium (2001) (ECtHR):
- Facts: NATO bombed a TV station in Serbia.⁹ Victims sued NATO states.
- Decision: The Court took a restrictive view. Jurisdiction is primarily territorial. Bombing from the sky does not create “effective control” over the ground.
Al-Skeini v. United Kingdom (2011) (ECtHR):
- Facts: Iraqi civilians killed by British troops in Basra during occupation.
- Decision: The Court expanded jurisdiction. Because the UK exercised “public powers” (policing) in Iraq, it had jurisdiction.¹⁰ Therefore, the ECHR applied to British soldiers’ conduct abroad.

V. Conclusion

For the human rights lawyer, the doctrine of state jurisdiction has undergone a seismic shift. It has moved from the Westphalian shield—designed to protect kings from interference—to a Universal sword—designed to protect humanity from kings.

While the Lotus case established that States are free unless prohibited, the Pinochet and Eichmann precedents established that this freedom ends where crimes against humanity begin. In the modern international legal order, jurisdiction is no longer merely a right of the State; it is a duty to the victims. As the Nuremberg Tribunal famously declared:

“Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”¹¹