In This Article Jurisdiction

  • Introduction
  • General Overviews
  • Textbooks
  • Sovereignty and Jurisdiction
  • The Territoriality of Jurisdiction
  • Civil and Criminal Jurisdiction
  • Concurrent and Exclusive
  • Reallocation
  • Extraterritorial

International Law Jurisdiction
by
Xiaodong Yang
  • LAST MODIFIED: 25 October 2012
  • DOI: 10.1093/obo/9780199796953-0030

Introduction

“Jurisdiction” is arguably the most versatile term in current international law. Frequently used in international legal instruments and yet never defined, the term can have different meanings in different contexts. Depending on the circumstances, jurisdiction may refer to the totality of the power or authority that a state has or exercises, in which case it is fully identifiable with “sovereignty,” another often-used but likewise never clearly defined term in international law. The term may also simply denote the power or authority of a state in a specific field, such as the levy of taxes or the adjudication of cases by courts or other judicial authorities. Despite the fuzziness of its contours, jurisdiction should be considered a central concept of international law. The reason for this is that it signifies not only the endowment of each and every state with the internal capacity to govern and the external standing to enter into international intercourse with other states, but also the parameters, under international law, for the actual realization of such endowment. In a word, jurisdiction describes, with varying degrees of precision in diverse situations, what a state can do and what a state does. In this sense, jurisdiction can justifiably be regarded as the dynamic aspect of the idea of sovereignty; it is what makes the notion of sovereignty visible and describable in strictly legal (i.e., technical) terms. Through the concept of jurisdiction, sovereignty, otherwise an elevated but amorphous notion, can now be assessed more or less accurately—both qualitatively and quantitatively. However, it must be borne in mind that jurisdiction does much more than simply give substance to the idea of sovereignty; it may also refer to those situations in which sovereignty is restricted, reduced, or nonexistent. Moreover, jurisdiction may be subject to various conditions and restrictions under international law, the most notable among these being sovereign or state immunity.

General Overviews

It is not easy to provide a general overview of the notion of jurisdiction without leaning too much toward either the theoretical or the practical side. Although earlier authors may have found it justifiable to resort to purely doctrinal ruminations, it has become increasingly necessary to discuss jurisdiction in the light of concrete instances of the exercise of jurisdiction or even within the limited context of, say, criminal jurisdiction. Mann 1964 conceptualizes jurisdiction as an inherent power or “right” of a state to regulate conduct, such power therefore comprising the authority to legislate and the authority to enforce. Jurisdiction is thus a concept at the same level as sovereignty. Mann 1984 reaffirms this general doctrinal position. In contrast to Mann’s more doctrinal treatment of the subject, Akehurst 1975 presents a more pragmatic view of jurisdiction and discusses various instances in which a state actually claims and exercises jurisdiction, without much probing as to the philosophical underpinnings. The Mann and Akehurst articles are of seminal significance in the English language on this particular issue. Partly because of the development and accumulation of state practice, later writers engage less in theoretical speculations but refer more to practical matters. Bowett 1982 explores the theoretical and practical grounds for a state’s entitlement to establish rules of behavior (jurisdiction to prescribe) within the limits allowed by international law. Ryngaert 2008 provides a well-balanced general view of jurisdiction and follows very much a classical approach, starting with the Lotus Case (see the Case of the S.S. “Lotus” under the Territoriality of Jurisdiction) and the territoriality principle, and then discussing the exercise of extraterritorial criminal jurisdiction before exploring the doctrinal basis of jurisdiction. Because jurisdiction in its practical sense from the perspective of public international law concerns primarily international criminal matters, it is always useful to see how the issue of jurisdiction is approached in the context of international criminal law, which, given the rapidly growing case law and literature, can now rightfully be regarded as a full discipline of law in its own right. Cassese 2007 treats the issue of jurisdiction as essentially one of competing assertions made by national and international tribunals, whereas Bantekas 2010 views both national and international courts as cooperative and complementary enforcers of the law.

  • Akehurst, Michael. “Jurisdiction in International Law.” British Yearbook of International Law 46 (1975): 145–257.

    E-mail Citation »

    Considers the notion of jurisdiction from an international rather than an internal or constitutional perspective and distinguishes among executive, judicial, and legislative jurisdiction in the sense of the power of a state to deal with cases having a foreign element.

  • Bantekas, Ilias. International Criminal Law. 4th ed. Oxford: Hart, 2010.

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    Part 4, “Enforcement of International Criminal Law,” traces the origin of international criminal justice and discusses the exercise of criminal jurisdiction and the reallocation of jurisdiction among international criminal tribunals, the International Criminal Court, and national courts.

  • Bowett, D. W. “Jurisdiction: Changing Patterns of Authority over Activities and Resources.” British Yearbook of International Law 53.1 (1982): 1–26.

    DOI: 10.1093/bybil/53.1.1E-mail Citation »

    Sees jurisdiction as a “manifestation of state sovereignty” and examines the legal and practical grounds for “prescriptive jurisdiction”—that is, the bases, including the territorial, nationality, protective, and universality principles, on which a state is entitled under international law to establish rules of behavior.

  • Cassese, Antonio. International Criminal Law. 2d ed. Oxford: Oxford University Press, 2007.

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    Chapter 16, “International versus National Jurisdiction,” discusses the relationship between the jurisdiction of international courts and tribunals and that of national courts, especially the issues of primacy and complementarity.

  • Mann, Frederick A. “The Doctrine of Jurisdiction in International Law.” Recueil des Cours 111 (1964): 1–162.

    E-mail Citation »

    Explores the issue from a purely doctrinal point of view and sees jurisdiction as an inherent power of the state that is exclusively determined by public international law and that has nothing to do with the question of whether certain state organs, such as courts, have jurisdiction in a given case.

  • Mann, Frederick A. “The Doctrine of International Jurisdiction Revisited after Twenty Years.” Recueil des Cours 186 (1984): 9–116.

    E-mail Citation »

    Reaffirms the position of Mann 1964, with a discussion of new developments both in theory and in practice.

  • Ryngaert, Cedric. Jurisdiction in International Law. Oxford: Oxford University Press, 2008.

    DOI: 10.1093/acprof:oso/9780199544714.001.0001E-mail Citation »

    Discusses the territoriality principle, mainly on the basis of the European, UK, and US practices, and the assertion of extraterritorial criminal jurisdiction. Proposes a theoretical basis for the analysis of jurisdiction.

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