Jurisdiction in International Law

International Law can be defined as the body of rules that nations recognize as binding upon one another in their mutual relations. The nationality of a person is generally determined by the municipal law of a state. There are certain limitations imposed by international law on the criteria that states can use to determine the nationality of an individual. A state can prosecute its nationals for crimes committed in any jurisdiction across the world. This is known as the active nationality principle. Many countries have made extensive use of this universally accepted rule. The courts of the United States accept nationality as a basis for jurisdiction. Under the Restatement (Third), a state can exercise its jurisdiction over a person who is a national of that state. However the US courts ‘may try a person only for violation of United States law, not for violation of the penal law of a foreign state’. Likewise courts in England do not usually enforce the criminal laws of foreign states. Some countries claim jurisdiction on the basis of some personal link other than nationality (for example, long residence by the accused in the state exercising jurisdiction), and other states have not protested against such jurisdiction.

A few nations exercise jurisdiction over all crimes. They even exercise jurisdiction over all crimes (or at least serious crimes) committed by foreigners abroad. Such universal jurisdiction is generally considered as forbidden under international law by English speaking countries. The Permanent Court of International Justice refrained from discussing the validity of such jurisdiction in the Lotus case, but individual judges declared that it was normally contrary to international law. The universality principle can obviously lead to unjust results when an individual is punished elsewhere for an act which was lawful under the law of the place where it was committed. However it is not as objectionable if it is applied to acts which are regarded as crimes in all countries. Even English speaking countries that generally consider the universality principle as generally contrary to international law, accept that international law allows states to exercise universal jurisdiction over certain acts which threaten the international community as a whole and which are criminal in all countries, such as war crimes, piracy, hijacking and various forms of international terrorism. Many problems can arise if states exercise universal jurisdiction in its broad sense to punish certain crimes, wherever and by whomsoever they have been committed, without any required connection to territory, nationality or special state interest.

Under the traditional definition, while states are the subjects of international law, international law by itself is the set of norms that regulate the mutual behavior of states. Norms that originally were created by custom, that is by acts of the national states or, more correctly formulated, by the state-organs authorized by national legal orders to regulate inter-state relations generally make up the body of international law. Consult an experienced international attorney if you need any assistance with international law.