What is an understanding of the concept of ‘jurisdiction’ in public international law? Analysis of two jurisdictional bases

Abstract

The concept of jurisdiction, in Public International Law, is traditionally associated with the notion of sovereignty, and is connected with the principle of non-interference in the domestic affairs of other States. In practice, jurisdiction allows the State its competence and power to exercise the sovereignty and independence that belongs to it within its territory, and the power to have its own legal system that impacts upon persons and activities in which it has a legal interest.

However, while sovereignty gives power to the State to exercise its jurisdiction, it also restricts the exercise of its jurisdiction through the adoption of international rules, which may not always concern domestic issues. In short, the function of jurisdiction is to regulate and restrict the respective competences of States with each other, in a situation of global legal order.

The competence of jurisdictions is divided into three elements: the legislative element which enacts laws that impact directly on the State' s own territory: the executive element which enforces and monitors the laws of the State to situations and persons: and the judicial element which settles disputes according to the application of the laws within the State's executive.

The first part of this paper will discuss the key concept of jurisdiction for an understanding of the bases upon which States may exercise their criminal jurisdiction, according to the principles of Public International Law, as well as immunities from jurisdiction e.g. State and diplomatic immunity. The second part of the paper will analyse two jurisdiction bases accepted in International Law based on two key principles i.e. the territorial principle. which may be both objective and subjective, and may exist concurrently in a jurisdiction: and the nationality principle, which includes active and passive. The paper concludes with a brief discussion of the protective principle, and the universality principle, as a secondary basis of jurisdiction in Public International Law.