International law, Sixth edition
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International Law MALCOLM N. SHAW
Criminal jurisdiction
31 International law permits states to exercise jurisdiction (whether by way of legislation, judicial activity or enforcement) upon a number of grounds. 32 There is no obligation to exercise jurisdiction on all, or any particular one, of these grounds. This would be a matter for the domestic system to decide. The importance of these jurisdictional principles is that they are accepted by all states and the international community as being consistent with international law. Conversely, attempts to exercise jurisdiction upon another ground would run the risk of not being accepted by another state. The territorial principle The territorial basis for the exercise of jurisdiction reflects one aspect of the sovereignty exercisable by a state in its territorial home, and is the indispensable foundation for the application of the series of legal 28 See e.g. Maharanee of Baroda v. Wildenstein [1972] 2 All ER 689. See also the Civil Juris- diction and Judgments Act 1982. 29 See, for example, the 1970 Hague Convention on the Recognition of Divorces and Legal Separations. 30 See e.g. Akehurst, ‘Jurisdiction’, p. 177. Cf. Mann, ‘Doctrine of Jurisdiction’, pp. 49–51, and see also Brownlie, Principles, p. 298, and Bowett, ‘Jurisdiction’, pp. 3–4. 31 See e.g. Akehurst, ‘Jurisdiction’, pp. 152 ff.; Mann, ‘Doctrine of Jurisdiction’, pp. 82 ff., and D. P. O’Connell, International Law, 2nd edn, London, 1970, vol. II, pp. 823–31. 32 It was noted in the Wood Pulp case that ‘the two undisputed bases on which state jurisdiction is founded in international law are territoriality and nationality’, [1998] 4 CMLR 901 at 920; 96 ILR, p. 148. j u r i s d i c t i o n 653 rights that a state possesses. 33 That a country should be able to legislate with regard to activities within its territory and to prosecute for offences committed upon its soil is a logical manifestation of a world order of independent states and is entirely understandable since the authorities of a state are responsible for the conduct of law and the maintenance of good order within that state. It is also highly convenient since in practice the witnesses to the crime will be situated in the country and more often than not the alleged offender will be there too. 34 Thus, all crimes committed (or alleged to have been committed) within the territorial jurisdiction of a state may come before the municipal courts and the accused if convicted may be sentenced. This is so even where the offenders are foreign citizens. 35 The converse of the concept of territorial jurisdiction is that the courts of one country do not, as a general prin- ciple, have jurisdiction with regard to events that have occurred or are occurring in the territory of another state. 36 Further, there is a presump- tion that legislation applies within the territory of the state concerned and not outside. 37 One state cannot lay down criminal laws for another in 33 See Lord Macmillan, Compa˜n´ıa Naviera Vascongado v. Cristina SS [1938] AC 485, 496–7; 9 AD, pp. 250, 259. Note also Bowett’s view that the ‘dynamism and adaptability of the principle in recent years has been quite remarkable’, ‘Jurisdiction’, p. 5, and Marshall CJ in The Schooner Exchange v. McFaddon 7 Cranch 116, 136 (1812) to the effect that ‘[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute’. Donaldson LJ also pointed to the general presumption in favour of the territoriality of jurisdiction, R v. West Yorkshire Coroner, ex parte Smith [1983] QB 335, 358; 78 ILR, p. 550. See also, for the view that the concept of jurisdiction is essentially territorial, Download 7.77 Mb. Do'stlaringiz bilan baham: |
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