Jurisdiction-active and passive personality, protective principle and universal jurisdictionPRESENTED BY

ABSAR AFTAB ABSAR

JURISDICTION OF A STATE IN RELATION TO A CRIME• State jurisdiction is one of the most important and ongoing topics of

contemporary international law.• Historically, it is clear that the existence of state jurisdiction in its basic

utilization represented by territoriality was concurrent with the emergence of international law in its classic concept.

• In the era of globalisation the restriction on states to exercise the jurisdiction only on their territory proved to be outdated.

• However, this nature of state jurisdiction had to change to meet new conditions in the international society.

• These kinds of crimes are called transboundary offenses, and it is impossible to prosecute them by applying territoriality in its basic concept.

• May give rise to positive and negative conflicts.• Thus, Nationality , Universality and protective Principles of Jurisdiction of

States evolved.

NATIONALITY PRINCIPLE-SCOPE

Strict application of territoriality could be harmful for the peaceful existence of international society.

Therefore states recognized necessity of having an independent basis of jurisdiction. As a result of it Nationality evolved as a basis of jurisdiction.

Principle can be applied on two bases

Active Personality

Passive Personality

THE ACTIVE PERSONALITY (NATIONALITY) A state has a fundamental right to apply its laws to prosecute illegal

conduct committed by its citizens overseas. It allows State to legislate regulating the conduct of its citizen abroad. Although Principle is mostly prevalent in the civil law Jurisdictions , it

is generally recognized in Common Law states. In UK , the Principle applies to treason , murder and manslaughter ,and

more recently ,conspiring or inciting sexual offences against children. Since 1945 , with awareness in Human Rights the use of nationality

principle has been expanded to cover most of the Human rights aspects also.

The principle is used to protect the interest of the state from abroad. The classic example is of the offence of treason.

THE ACTIVE PERSONALITY (NATIONALITY)(CONTD…) In Public Prosecutor v. Antoni , the accused a Sweden national was

involved in a road traffic accident in Germany . One of his defense when prosecuted in Sweden was that the traffic laws of Sweden were never intended to be applicable outside Sweden . The Supreme Court held the Principle that “every crime committed by a Sweden National may be punished even if committed abroad.

During the operation of UNPROFOR in former Yugoslavia , the Czech soldiers killed their captain, the Czech authorities asserted jurisdiction based on Active Personality Principle.

Thus , the ambit of Active Personality Principle is extremely wide.

PASSIVE PERSONALITY PRINCIPLE Jurisdiction is exercised by the State of the nationality of the victim where

the offence took place outside its territory. Common law states opposed it but by the emergence of transnational

crimes approved it. The justification is to protect the welfare of the nationals abroad. In Cutting case ,a US citizen was arrested in Mexico for a Libel charge

against a Mexican national ,the action for which the alleged libel was charged had been committed whilst its author was in US ,the arrest of the author was effectuated during his subsequent visit to Mexico . The US Government vigorously opposed Mexico’s claim of Jurisdiction and the case was finally discontinued.

The Principle again faced the same rejection in Lotus case by the Permanent Court Of International Justice.

PASSIVE PERSONALITY PRINCIPLE(CONTD…) Following the Achille Lauro incident and subsequent murder of a US

citizen , the US congress enacted Omnibus Diplomatic Security and Anti-Terrorism act,1986 which granted US courts Jurisdictions over persons charged with the murder of US nationals.

Similar Provisions are Section 3(4) of UK Taking Of Hostages Act,1982,Art 689(1) of French Code Of Penal Procedure.

In US v. Yunis the Principle was unequivocally upheld by the court of Appeals ,that Passive Personality principle over the accused for hijacking a Jordanian Airline with two US nationals onboard was assumed on the basis of Anti Hijacking Act,1974 .

Treaty based Passive Personality is much more effective than Statute based Passive Personality.

THE PROTECTIVE PRINCIPLE It is unequivocally accepted that every country is competent to take any

measures that are compatible with the law of nations in order to safeguard its national security interests.

Above provided implication is the basis for the Protective or Security Principle.

The necessity of the Principle arose by the lack of municipal legislations to criminalize or to prosecute the person though committing an act abroad but is directed against the security of a Foreign State.

The State shall have the Jurisdiction over the conduct meeting the requisites whether committed by a national or a Foreigner.

Under US law this principle is relevant when an extraterritorial offence has or could have an adverse effect on the internal security ,Sovereignty ,Integrity , treasury or other governmental functions.

THE PROTECTIVE PRINCIPLE(CONTD…) The focus of this Principle is the nature of interest which is or may be

harmed rather than the place where it occurs. In United States v. Layton , the defendant Larry Layton was charged

with conspiracy to murder Leo Ryan , a representative of US Congress , the US District Court found that it had subject matter jurisdiction over all counts . The court applied several bases of jurisdiction included the protective Principle . The Court held that killing a representative impaired an important governmental function . The killing of representative amounted to an extraterritorial act of terrorism and generally met the requisites of Protective Principle.

It is unclear whether the Protective Principle of Germany is expansive in nature than U.S. or not.

Basic premise of German Protective Principle is that the State will subject “offences committed abroad by Foreigners(as well as Citizens)

THE PROTECTIVE PRINCIPLE(CONTD…)to its punitive power if thereby if domestic interests are endangered or violated”. German concept of Protective Principle is broader in application than

the one prevalent in U.S. as it covers a number of interests violating which the punitive sanctions can be taken.

UNIVERSAL JURISDICTION Any State may assert its authority over offences that are subject to

universal jurisdiction. Crimes under International Law have customarily attracted universal

jurisdiction in two independent way: (a)heinous , repugnant nature and scale of the offence.(b) inadequacy of national legislation to deal with such offence effectively.

In Re Rohrig, a Dutch Special Cassation Court wrongly assimilated the basis for asserting universal Jurisdiction over War crimes to that of Piracy.

In Re Pinochet , Millet argued that international crimes attract universal jurisdiction where they violate a rule of Jus Cogen and at the same time are so serious and perpetrated on such a large scale that they can be regarded as an attack against International Legal Order.

UNIVERSAL JURISDICTION(CONTD…) The most important ingredient lacking in the proposition of Millet is

Consent of the state to subject an offence to universal jurisdiction Through Treaty or custom.

In Art 105 of UNCLOS universal jurisdiction is given to any state in case of Piracy(pirate ships or aircrafts) whether taking place on high seas or on no man’s land . On the contrary in Art 99 of UNCLOS , every state shall take effective measures to punish and prevent the transport of slaves in ships authorized to fly its flag and to prevent the unlawful use of its flag for this purpose.

The repugnant nature of an offence may determine its subjection to universal jurisdiction but this also requires unequivocal consent of the international community , thus , it is not an automatic process.

UNIVERSAL JURISDICTION(CONTD…) Non parties to UNCLOS and 1949 Geneva Convention , the Jus Cogens

character of the offences involved precludes even persistent objection. In Jones and Others v. Kingdom of Saudi Arabia , the House of lords

took a narrow view and held , no evidence exist whereby state recognize an international obligation to exercise universal jurisdiction over claims arising from breaches of Jus Cogens.

The fact that an international crime does not attract universal jurisdiction under international law does not necessarily mean that it may not attract broad extra territorial jurisdiction(similar to universal) under domestic law . For example Article 5(1) and 5(2),(3) of UN Torture Convention 1948.

In Austrian Universal Jurisdiction case , accused , native of Yugoslavia committed crime there then went to Austria . Yugoslavia wanted the accused to be extradited but Austria refused and claimed universal

UNIVERSAL JURISDICTION(CONTD…)Jurisdiction to try the accused for the offences committed in Yugoslavia as the crimes committed were punishable under Austrian Code if had been committed in Austria. In similar manner , national courts have upheld the universality

principle with regards to crimes defined under municipal criminal statutes ,for a number of offences.

CONCLUSION The principles of Jurisdiction are aimed not to spare any person who is

threat to the entire national order. The Universality Principle is an apt technique to tackle with the modern

day crime i.e. cyber crime ,piracy. In Universality Principle much emphasis should be given to the consent

of the States related to the subjection of a particular offence under the said principle either by way of treaties or custom.