Wednesday, January 11, 2012

Five bases for prescriptive jurisdiction under international law

Five bases for prescriptive jurisdiction under international law
  1. territory
    • State has jurisdiction over property, persons, acts, or events occurring within its territory
    • not a controversial basis of jurisdiction
  2. (active) nationality
    • states may regulate the conduct of their nationals wherever they are in the world
    • not a controversial basis of jurisdiction
  3. passive personality
    • a state may prescribe law for situations where its nationals are a victim of the conduct being regulated
    • this has limited scope, and is pretty well accepted with regard to terrorist attacks
  4. protective
    • a state can legislate crimes that it considers to be a threat to its security, integrity, or economic interests
    • common examples: espionage, counterfeiting (maybe terrorism)
    • this one is controversial – makes some countries nervous because of the possibility of arbitrary enforcement
  5. universal
    • a state may legislate certain crimes that are contrary to the interests of the international community
    • in theory, every state has an interest in prescribing laws relating to these crimes
    • the only clear-cut cases of universal jurisdiction are piracy and war crimes (according to the book), but Orentlicher says the list is longer now, and terrorism is in the “maybe” category

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