Breach of An International Obligation

Jurisdiction
Jurisdiction itself has various meanings, but now the context refers to the legal competence of a
State to create, implement and enforce rules relating to people, property and situations / events outside
its territory and the boundaries of that authority. 1 There are 3 types of jurisdiction, viz :
 Jurisdiction to prescribe
 Jurisdiction to adjudicate under which a State has the authority
 Jurisdiction to enforce under which a State is empowered
The jurisdiction of the Court consists of cases referred to by the parties concerned and all matters
specifically provided for in the Charter of the United Nations or in applicable treaties and conventions.
The States parties to this Statute may at any time declare their recognition of obligations ipso facto and
without special consent, with respect to any other country which accepts the same obligations, the
jurisdiction of the Court in all legal disputes concerning: 2
 the interpretation of a treaty;

 any question of international law;
 the existence of any fact which, if established, would constitute a breach of an international
obligation ;
 the nature or extent of the reparation to be made for the breach of an international
obligation.
There are 5 legal principles as written in the 1935 Harvard Research Draft Convention on Jurisdiction
with Respect to Crime. Those five principles are: the territoriality principle; the nationality principle; the
protective principle; the passive personality principle; and the universality principle.
Jurisdiction in a transnational context. First, in its broadest sense, it refers to the regulatory
competence or power of a State vis-`a-vis other States: the right to regulate. Jurisdictional rules in this
broadest sense are about the sharing of regulatory space between States, about the ‘juste partage de
souverainet´e’.3 Secondly, sometimes, it is also used to refer to the physical territory of a State. So it is
no tautology to say that a State has jurisdiction (the right to regulate) within its jurisdiction (on its
territory) and sometimes over matters outside it. 4 Third, international private lawyers use this term
more narrowly, referring to the question of whether courts have the right to hear transnational
disputes. the most common will be used in the broadest sense, namely the power or right to rule and
from the context it should be clear when a narrower meaning is imagined. 5
1
Alina Kaczorowska. Public International Law.[UK: Routledge, 2010] Pg. 309
2
ICJ Art.36
3
Man n ( 1 964 ), abov e n. 2 1, 18. This though does not mean that other States do not enjoy
concurrent regulatory competence, as discussed below
4
Uta Kohl. Jurisdiction and The Internet.Pg.14
5
The rules of jurisdiction, while prima facie always in operation, only become interesting when a matter is
transnational, i.e. not of purely domestic concern. Domestic matters are not subject to international law (bar some
exceptions) but of course it is international law which defines what is and is not a domestic matter
What these rules are and where they can be found depends broadly on two matters. First, it
depends on the private/civil or public/criminal nature of the dispute. If the dispute or matter is private,
it is private international law and if it is public it is public international law which provides the legal
source. However, it is rare for courts, at least within the common law tradition, to refer explicitly to
public international law in prosecutions concerning transnational criminal activity. Instead, they rely on
domestic doctrines and constructs (as, for example, ‘all crime is local’) to explain why a local prosecution
would or would not be legitimate.6 Public international law governs extra-territorial criminal jurisdiction.
Only within its territory has a State full jurisdiction, that is all three types. While in some
circumstances a State may prescribe laws and adjudicate disputes in respect of persons or matters
outside its territory, its enforcement jurisdiction does not reach beyond its territory. In other words,
adjudicative and legislative jurisdiction have anextra-territorial reach, but a State can never send its
police or other agents into another State’s territory to enforce these claims.
This three-part division of regulatory activity is reflected in transnational private disputes where one
State (i.e. legal system) may prescribe the law, but another may adjudicate and enforce it. In respect of
public or criminal matters, there is no choice of law: once a State assumes adjudicative jurisdiction over
a person, the court will always apply forum law, i.e. never foreign law, and thus adjudicative and
prescriptive jurisdiction collapse for most intents and purposes into one. 7
6
Matthew Goode, ‘The Tortured Tale of Criminal Jurisdiction’ (1997) 21 Melbourne University Law Review 411.
7
Uta Kohl. Jurisdiction and The Internet. Pg.16

Breach of An International Obligation

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Jurisdiction

 the interpretation of a treaty;

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