Five bases for prescriptive jurisdiction under international law
- territory
- State has jurisdiction over property, persons, acts, or events occurring within its territory
- not a controversial basis of jurisdiction
- (active) nationality
- states may regulate the conduct of their nationals wherever they are in the world
- not a controversial basis of jurisdiction
- 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
- 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
- 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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