Jurisdictional Competence

(p. 456) 21  Jurisdictional Competence

1.  Overview1

Jurisdiction is an aspect of sovereignty: it refers to a state’s competence under international law to regulate the conduct of natural and juridical persons. The notion of regulation includes the activity of all branches of government: legislative, executive, and judicial. Although the state is conceived in international law as a single unit, nonetheless for the purposes of analysing jurisdiction and its limits some distinctions are usually made. On the one hand is the power to make laws, decisions or rules (prescriptive jurisdiction); on the other is the power to take executive or judicial action in pursuance of or consequent on the making of decisions or rules (respectively enforcement or adjudicative jurisdiction).2

The starting-point in this part of the law is the presumption that jurisdiction (in all its forms) is territorial, and may not be exercised extra-territorially without some specific basis in international law. However, the territorial theory has been refined in (p. 457) the light of experience and what amounts to extra-territorial jurisdiction is to some extent a matter of appreciation. If there is a cardinal principle emerging, it is that of genuine connection between the subject-matter of jurisdiction and the territorial base or reasonable interests of the state in question.3

It should be stressed that this sufficiency of grounds for jurisdiction is normally considered relative to the rights of other states.4 There is no assumption (even in criminal cases) that individuals or corporations will be regulated only once, and situations of multiple jurisdictional competence occur frequently. In such situations there is no ‘natural’ regulator and the consequences of multiple laws applying to the same transaction are managed rather than avoided—double taxation being a case in point.5

2.  Prescriptive Jurisdiction Over Crimes6

(A)  General Bases of Jurisdiction

The discussion which follows concerns the general principles for determining whether a state may prescribe acts as criminal under municipal law. The question emerged as a distinct one only after about 1870,7 and the appearance of clear principles has been retarded by the prominence in the sources of municipal decisions, which exhibit empiricism and adherence to national policies. The early structure of prescriptive criminal jurisdiction was provided by the Permanent Court in the SS Lotus. That case concerned a collision on the high seas between a French steamer and a Turkish collier in which the latter sank and Turkish crew members and passengers lost their lives. The French steamer having put into port in Turkey for repairs, the officers of the watch were tried and convicted of involuntary manslaughter. On the question of jurisdiction in general the Permanent Court said:

(p. 458) Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property or acts outside their territory, [international law] leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.8

This passage has been much criticized.9 Its emphasis on plenary state discretion is contradicted by the approach of the Court in Anglo-Norwegian Fisheries10 and Nottebohm,11 which concerned comparable competences of states, respectively, to delimit the territorial sea and to confer nationality on individuals: we may call them regulatory competences. Following Arrest Warrant,12 there are hints that it has been reversed: if a state wishes to project its prescriptive jurisdiction extra-territorially, it must find a recognized basis in international law for doing so. This shift in focus is, however, largely cosmetic, and in general the Permanent Court’s statement that ‘all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty’ remains correct.13

(i)  The territorial principle

The principle that the courts of the place where the crime is committed may exercise jurisdiction is universally recognized. It is an application of the essential territoriality of sovereignty, the sum of legal competences which a state has. In the case of crime, the principle has a number of practical advantages, including the convenience of the forum and the presumed involvement of the interests of the state where the crime was committed. The territorial principle has been given an extensive application. In the first place, there is subjective territoriality, which creates jurisdiction over crimes commenced within the state even if completed or consummated abroad.14 Generally accepted and often applied is the objective territorial principle, according to which jurisdiction is founded when any essential constituent element of a crime is consummated on the forum state’s territory. The classic illustration is the firing of a gun across a border causing death on the territory of the forum, but the principle can be employed(p. 459) to found jurisdiction in cases of conspiracy,15 violation of antitrust16 and immigration laws17 by activity abroad, and in many other fields of policy.18 The effect of the two principles combined is that whenever the constituent elements of a crime occur across an interstate boundary both states have jurisdiction.

The objective principle received general support in the Lotus; what was controversial was its application to collisions in international waters. France contended that the flag state alone had jurisdiction over acts performed on board on the high seas. Turkey argued, inter alia, that vessels on the high seas were to be considered part of the territory of the flag state. By the casting vote of the President, the Court decided that Turkey had not acted in conflict with the principles of international law by exercising criminal jurisdiction. The basis of the majority view (with which Judge Moore concurred) was the principle of objective territorial jurisdiction. The principle was familiar but to apply it the Court had to assimilate the Turkish vessel to Turkish national territory.19 This crucial step did not attract a majority, and is out of line with subsequent developments.

(ii)  The nationality principle

Nationality, as a mark of allegiance and an aspect of sovereignty, is also generally recognized as a basis for jurisdiction over extra-territorial acts.20 The application of the principle may be extended by reliance on residence21 and other connections as(p. 460) evidence of allegiance owed by aliens,22 and also by ignoring changes of nationality.23 For example the UK legislature has conferred jurisdiction on its courts in respect of, inter alia, treason,24 murder,25 bigamy,26soccer hooliganism,27 child sexual abuse,28 and breaches of the Official Secrets Acts29 wherever committed by British nationals or residents.

The territorial and nationality principles (as well as the increasing incidence of dual nationality) create parallel jurisdictions and possible double jeopardy, and many states place limitations on the nationality principle,30 for example, by confining it to serious offences.31 But such limitations are not required by international law.32Nationality provides the primary criterion for criminal acts in locations such as Antarctica, where the ‘territorial’ criterion is not generally recognized.33

For nationality jurisdiction, it is often asserted that the person over whom the state purports to exercise its prescriptive jurisdiction must have been a national at the time of the offence. Otherwise, it is argued, a violation of the principle of nullum crimen sinelege could occur.34 However, state practice is varied, with some states providing for nationality jurisdiction over persons who subsequently acquire their nationality.35

(p. 461) (iii)  The passive personality principle36

If the nationality head of jurisdiction may be characterized as one of ‘active personality’, the reverse of the coin is ‘passive personality’. According to this principle aliens may be punished for acts abroad harmful to nationals of the forum. This is considerably more controversial, as a general principle, than the territorial and nationality principles. In Cutting a Mexican court exercised jurisdiction in respect of the publication by a US citizen in a Texas newspaper of matter defamatory of a Mexican citizen. The court applied the passive nationality principle among others. This led to diplomatic protests from the US, although the outcome was inconclusive.37

In the Lotus, the Turkish penal code provided for punishment of acts abroad by foreigners against Turkish nationals; in effect it was a comprehensive exercise of passive personality jurisdiction. The Court declined to assess the law as such. The question was whether the specific factual situation fell within Turkish jurisdiction or not;38 it held that it did, invoking the protective principle.39 Judge Moore, in a separate opinion, agreed with the majority as to the outcome but expressly rejected the protective principle.40

The passive personality principle has been much criticized. One early complaint was that it served no wider goal of criminal justice: it did not correspond to a domestic conceptualization of jurisdiction, would not close an enforcement gap and lacked any social aim of repression.41 There is also concern that it could expose individuals to a large number of jurisdictions.42 Such objections have not, however, prevented the development of something approaching a consensus on the use of passive personality in certain cases, oft en linked to international terrorism.43 Moreover, aut dedere aut iudicare provisions in most criminal law treaties authorize the use of passive personality jurisdiction as between states parties.44

(p. 462) (iv)  The protective or security principle45

Nearly all states assume jurisdiction over aliens for acts done abroad which affect the internal or external security or other key interests of the state, a concept which takes in a variety of offences not necessarily confined to political acts.46 Currency, immigration, and economic offences are frequently punished. The UK and the US allow significant exceptions to the doctrine of territoriality, though without express reliance upon the protective principle. Thus, courts of the former have punished aliens for acts on the high seas concerning illegal immigration,47 and perhaps considerations of security helped the House of Lords in Joyce v Director of Public Prosecutions48 to the view that an alien who left the country in possession of a British passport owed allegiance and was accordingly guilty of treason when he subsequently broadcast propaganda for Germany in wartime. Insofar as the protective principle rests on the protection of concrete interests, it is sensible enough, but the interpretation of the concept of ‘protection’ may vary widely. For example, the protective principle was invoked in the Eichmann case in relation to the Jewish victims of the accused,49 despite the fact that Israel was not a state when the offences in question occurred.50

The categories of what may be considered a vital interest for the purposes of protective jurisdiction are not closed,51 and no criteria exist for determining such interests beyond a vague sense of gravity. Ultimately, the identification of exorbitant jurisdiction may be a matter of knowing it when one sees it.52

(v)  The effects doctrine

In addition, it has been suggested that there exists a further head of prescriptive jurisdiction, the so-called ‘effects doctrine’.53 This may gain traction where an(p. 463) extra-territorial offence causes some harmful effect in the prescribing state, without actually meeting the criteria of territorial jurisdiction or representing an interest sufficiently vital to the internal or external security of the state in question to justify invoking the protective principle.

While controversial, the doctrine is not objectionable in all cases.54 It was at least acknowledged by the majority in the Lotus55 and by certain members of the International Court in Arrest Warrant.56 Today, ‘effects’ or ‘impact’ jurisdiction is practised largely by the US and, with greater qualifications, by the EU.57 In Alcoa, for example, Judge Learned Hand stated that it was ‘settled law’ that ‘any state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders which has consequences within its borders which the state reprehends’,58 a position since followed extensively in US antitrust jurisprudence.59

Since Alcoa, the effects doctrine and its expansion have, in many cases, been driven by the US approach to jurisdiction. Whereas previously this resembled closely the conception of various heads of prescriptive jurisdiction, it has now changed its perspective; it is possible to speak of antitrust jurisdiction, tort jurisdiction, and taxation jurisdiction, with some of these having a broader extra-territorial reach than others. This has the potential to muddy the waters, resulting in the uncertain position of the effects doctrine within international law as either a head of prescription in its own right, or a subject-driven application of the territorial or protective principles with unusual reach.60 These policies have provoked a strong reaction from a number of foreign governments. The UK61 and other states have enacted legislation to provide defensive measures against American policy. Similar episodes have arisen as a result of the application of the US Export Administration Act in particular, in the face of US measures directed against non-American corporations involved in contracts relating to the construction of the West Siberian pipeline.62 Both the European Community63 and the UK64protested and asserted the illegality of the actions of US authorities(p. 464) intended to prevent the re-export of machinery of American origin and the supply of products derived from American data. But it must be noted that competition legislation in several European states is based on principles similar to those adopted in the US.65 Moreover, the European Court of Justice has applied a principle similar to the American ‘effects doctrine’ in respect of company subsidiaries66 and the Advocate-General espoused this view in his Opinion in the Woodpulp Cases.67 In any event US legislation has continued to provoke protests from the EU and from individual states.68 This legislation includes the Cuban Democracy Act (1992),69 the D’Amato-Kennedy Act (1996),70 and the Helms-Burton Act (1996).71

(B)  Jurisdiction Over Ships and Aircraft

Jurisdiction over ships on the high seas or exercising the right of innocent passage through the territorial sea or EEZ is discussed in chapters 11 and 13. The question here is the relation between the territorial sovereign and the flag state in the matter of jurisdiction over private vessels in ports or other internal waters.72 The view that a ship is a floating part of state territory has long fallen into disrepute, but the special character of the ‘internal economy’ of ships is still recognized, the rule being that the law of the flag depends on the nationality of the ship73 and that the flag state has regulatory responsibility for and jurisdiction over the ship.74 But when a foreign ship enters a port, except perhaps as a consequence of distress,75 temporary allegiance is owed to the territorial sovereign and concurrent jurisdiction arises.76

(p. 465) There has been debate on the limits of the local criminal jurisdiction. In principle, there are no limits provided action is taken with regard only to breaches of local law and not to breaches of rules set by the law of the flag state.77 During the preparatory work of the Hague Codification Conference of 1930, the UK stated its opinion on the issues as follows:

[T]he State is entitled to exercise jurisdiction over a foreign merchant vessel lying in its ports and over persons and goods on board…In criminal matters it is not usual for the authorities to intervene and enforce the local jurisdiction, unless their assistance is invoked by, or on behalf of the local representative of the flag State, or those in control of the ship, or a person directly concerned, or unless the peace or good order of the port is likely to be affected. In every case it is for the authorities of the State to judge whether or not to intervene.78

On this view derogation from the exercise of local criminal jurisdiction is a matter of comity and discretion, but may be invoked in practice where: (a) the act in question disturbs the peace and good order of the port; (b) assistance is requested by the captain or a representative of the flag state of the ship; or (c) a non-crew member is involved.79

Quite aside from matters relating to the internal economy of ships, port state jurisdiction is increasingly recognized as a remedy for the failure of flag states to exercise effective jurisdiction and control of their ships. The jurisdiction is no longer used solely to enforce local questions of civil and criminal law, but is actively playing a role in the international regulatory sphere. This is especially notable in the context of maritime pollution, with Article 218 of the UN Convention on the Law of the Sea (UNCLOS) granting port states the right to institute proceedings or impose monetary penalties for illegal discharges that occur outside of their territorial sea and EEZ. Port state jurisdiction is also used as a response to illegal and unregulated fishing on the high seas. Under Article 23 of the Straddling Stocks Agreement,80 a port state has the right (and indeed duty) to take certain steps to combat illegal fishing, revolving centrally around the inspection of documents, fishing gear, and the catch itself. This provision is not the equivalent of UNCLOS Article 218 optimized for use in relation to fishing, but it does underwrite the use of existing port state jurisdiction in a certain fashion. The same may be said of Article 15 of the UNESCO Convention on the Protection of Underwater Cultural Heritage,81which requires states parties to prohibit the use of their ports in support(p. 466) of any activity directed at underwater cultural heritage which is not in conformity with the Convention.

Aircraft initially posed some problems for the jurisdictional rules of domestic and international law, and crimes on board civil aircraft over the high seas or in the airspace of foreign states were the subject of considerable variations of opinion.82 In the UK, for example, the extra-territorial commission of common law offences such as murder and theft is punishable,83 but many provisions, apart from aeronautical regulations made under the Civil Aviation Act 1949, have no application to crimes on aircraft abroad or over the high seas.84 The practice of states on the relation between the national law of the aircraft and the law of any foreign territory overflown was not very coherent; however, work sponsored by the International Civil Aviation Organization produced the Convention on Offences and Certain Other Acts Committed on Board Aircraft (Tokyo Convention),85 which in Article 3(1) provides that the state of registration of the aircraft is competent to exercise jurisdiction over offences and acts committed on board and further requires the state to take necessary measures to claim jurisdiction over such acts (Article 3(2)). Article 3(3) provides that criminal jurisdiction exercised in accordance with national law is not excluded.

In addition, Article 4 of the Tokyo Convention prohibits states other than the state of registration interfering with an aircraft in flight, save where an offence committed on board: (a) has effect in the territory of the intercepting state; (b) has been committed by or against a national or permanent resident of such state; (c) is against the security of the state; or (d) consists of a breach of any rules or regulations relating to the flight of aircraft .

Aircraft hijacking has prompted multilateral conventions creating duties for states to punish the seizure of aircraft in flight and to exercise jurisdiction in specified conditions, for example, when the offence is committed on board an aircraft registered in the contracting state.86

(p. 467) (C)  Universal Jurisdiction87

(i)  Defining universal jurisdiction

Defined simply, universal jurisdiction amounts to the assertion of criminal jurisdiction by a state in the absence of any other generally recognized head of prescriptive jurisdiction.88 In O’Keefe’s words:

universal jurisdiction can be defined as prescriptive jurisdiction over offences committed abroad by persons who, at the time of the commission, are non-resident aliens, where such offences are not deemed to constitute threats to the fundamental interests of the prescribing state or, in appropriate cases, to give rise to effects within its territory.89

A considerable number of states have adopted, usually with limitations, a principle allowing jurisdiction over acts of non-nationals where the circumstances, including the nature of the crime, justify repression as a matter of international public policy. In this sense, universal jurisdiction is defined by the character of the crime concerned, rather than by the presence of some kind of nexus to the prescribing state. The prosecution of crimes under customary international law is often expressed as an acceptance of the principle of universality,90but this is not strictly correct, since what is punished is the breach of international law. The case is thus different from the punishment, under national law, of acts which international law permits and even requires all states to punish, but does not itself declare criminal.

(ii)  The content of universal jurisdiction

How then to define the content of universal jurisdiction? As alluded, some commentators have argued for its extension on moral or public policy grounds, and that universal jurisdiction accordingly applies to certain crimes under customary international law the commission of which is generally accepted ‘as an attack upon the international order’.91 As the District Court of Jerusalem in the Eichmann case remarked:

The abhorrent crimes defined in [the Israeli Law] are not crimes under Israeli law alone. These crimes, which struck at the whole of mankind and shocked the conscience of nations, are grave offences against the law of nations itself (delicta juris gentium). Therefore, so far from international law negating or limiting the jurisdiction of countries with respect to such(p. 468) crimes, international law is, in the absence of an International Court, in need of the judicial and legislative organs of every country to give effect to its criminal interdictions and bring the criminals to trial. The jurisdiction to try crimes under international law is universal.92

The original crime to which universal jurisdiction attached was that of piracy iure gentium,93 which was in turn followed by slavery.94 In modern times, it has been extended to the so-called ‘core crimes’ of customary international law,95 being genocide,96 crimes against humanity and breaches of the laws of war, and especially of the Hague Convention of 1907 and grave breaches of the Geneva Conventions of 1949.97 Torture within the meaning of the Torture Convention 1984 is also likely to be subject to universal jurisdiction.98

Beyond such clear cases, public policy is less useful as a criterion. There are no examples of prosecutions for the crime of aggression under universal jurisdiction, but given the relatively recent formulation of an agreed definition of the crime in international law99 this is not surprising.100 At the same time, however, the intense political implications of the charge of aggression may also explain the unwillingness of states to attempt prosecutions on the basis of universal jurisdiction. For now, therefore, it is questionable as to whether aggression can be considered a crime of universal jurisdiction. The better view may be that it is not.

Thus, notwithstanding the fact that the ‘moral’ justification for universal jurisdiction has dominated discussion of this subject,101 it does not explain the reality of universal jurisdiction, which is oft en influenced—sometimes decisively—by political considerations. It seems that attempting to derive a coherent theory for the extension of universal jurisdiction with respect to some crimes but not others may be to(p. 469) overstate the situation: rather, it may simply be that such jurisdiction is extended on a case-by-case basis in customary international law, with the notion of an attack upon the international order being a necessary but not sufficient condition.

(iii)  Universal jurisdiction in absentia?

The most substantial consideration of universal jurisdiction by an international court or tribunal occurred in Arrest Warrant, even though the discussion was obiter (the Court felt it could address immunity without deciding upon jurisdiction).102 The opinions of those judges who did consider universal jurisdiction reveal a deeply divided court. Four judges (President Guillaume, Judges Ranjeva, Rezek, and Judge ad hoc Bula-Bula) were opposed to the use of the jurisdiction, whereas six (Judge Koroma, Judges Higgins, Kooijmans, Buergenthal in their joint separate opinion, Judge al-Khasawneh (impliedly), and Judge ad hoc van den Wyngaert) supported its application by Belgium.103

On examination, however, of those judges who opposed the use of universal jurisdiction by Belgium, only President Guillaume104 and Judge Rezek105 disagreed with a concept of universal jurisdiction in general. Judge Ranjeva and Judge ad hoc Bula-Bula criticized only its use in absentia, that is, where the prescribing state did not have custody of the accused.106

Although the notion of universal jurisdiction in absentia is not unknown in academic literature prior to the Arrest Warrant case,107 it is not compelling. Universal jurisdiction is a manifestation of a state’s jurisdiction to prescribe. The question whether jurisdiction is exercised in personam or in absentia is a manifestation of a state’s jurisdiction to enforce.108 In the context of Arrest Warrant, the Belgian law on war crimes and the issue of an arrest warrant in support of that law were separate acts. To speak of universal jurisdiction in absentia is to conflate prescriptive and enforcement jurisdiction.109

(iv)  Treaty-based quasi-universal jurisdiction110

Another, more restricted, form of quasi-universal jurisdiction arises from sui generis treaty regimes incorporating penal characteristics. These regimes have for the most(p. 470) part been developed in order to respond to particular behaviours viewed as undesirable; they require states parties to exercise mandatory prescriptive jurisdiction over certain individuals within their territories, independent of any ordinary nexus. They are frequently characterized by the obligation of aut dedere aut iudicare, which will compel a state party to either try the accused or extradite to a state that is willing to do so.111

An example112 arises in the context of the Convention for the Suppression of Unlawful Seizure of Aircraft (Hague Convention).113 This provides in Article 4(2) that:

Each Contracting State shall likewise take such measures as may be necessary to establish its jurisdiction over the offence in the case where the alleged offender is present in its territory and it does not extradite him pursuant to Article 8 to any of the States mentioned in paragraph 1 of this Article.

This formula has been applied, more or less identically, in a considerable number of international conventions.114 Early examples include the aut dedere aut iudicare obligations also appeared in the Geneva Conventions in 1949.115 Chief amongst the more recent treaties are the 12 ‘sectoral’ anti-terrorism agreements which were developed(p. 471) when it became clear that meaningful agreement on a generic definition of ‘terrorism’ was unreachable.116

To describe the jurisdictional regime established by these treaties as ‘universal’ is a misnomer.117 As Ryngaert notes:

The operation of the aut dedere requirement is indeed limited to States Parties, which pool their sovereignty and explicitly authorize each other to exercise jurisdiction over crimes committed by their nationals or on their territory.118

That, however, has not prevented certain states from insisting on the application of sui generis bases of jurisdiction to nationals of non-states parties to the treaties in question. The US is notable in this regard, often exercising jurisdiction over suspected terrorists who are nationals of states not party to the relevant sectoral agreements.119 In Yunis, for example, a Lebanese national was prosecuted with respect to the hijacking of Royal Jordanian Airlines Flight 402 from Beirut to Amman. The plane carried several American nationals, but was registered in Jordan, flew the Jordanian flag and never landed on American soil or flew over American airspace. The Court found that it had universal jurisdiction to prosecute with respect to the act of hijacking and the taking of hostages by the accused. Although jurisdiction was grounded on the fact that Lebanon was a state party to the Hague and Montreal Conventions, the Court further held that jurisdiction was also furnished by the provisions of the Hostage Taking Convention. This was despite the fact that Lebanon and Jordan were not parties to that treaty.120

3.  Civil Prescriptive Jurisdiction

There are different views as to the law concerning civil jurisdiction. On one view, exorbitant assertions of civil jurisdiction could lead to international responsibility. Further, as civil jurisdiction is ultimately reinforced by criminal sanctions through contempt of court, there is in principle no great difference between the problems created by assertion of civil and criminal jurisdiction over aliens.121 In particular, antitrust(p. 472) legislation (the source of many of the difficulties in practice) involves a process which, though formally ‘civil’, is in substance coercive and penal, as is the field of securities regulation.122 On another view, there is little by way of limitation on a state’s exercise of civil jurisdiction in what are effectively private law matters; different states assert jurisdiction on different grounds, but deference to foreign law through conflicts rules mitigates any exorbitant elements.

(A)  The Basis of Civil Jurisdiction Indifferent Legal Traditions

Notwithstanding broad similarities, the different legal traditions conceive of the civil jurisdiction to prescribe in different ways. This division is particularly apparent when considering the willingness of municipal courts to exercise jurisdiction over a foreign party as an actualization of prescriptive jurisdiction.

In order to satisfy international law standards in regard to the treatment of aliens a state must in normal circumstances maintain a system of courts empowered to decide civil cases and, in doing so, be prepared to apply private international law where appropriate in cases containing a foreign element.123 Municipal courts may be reluctant to assume jurisdiction in cases concerning a foreign element, adhering to the territorial principle conditioned by the situs of the facts in issue, and supplemented by criteria relating to the concepts of allegiance or domicile and doctrines of submission to the jurisdiction (including tacit submission on the basis of ownership of property in the forum state).124

As a general rule, the common law systems will assert jurisdiction over a foreign defendant who can be served with originating process.125 Under the most basic formulation, a writ may be served whenever the defendant sets foot126 or establishes a commercial presence127 in the jurisdiction, no matter how temporarily. Where the defendant has no such presence, a writ may nonetheless be served outside of the jurisdiction in certain cases.128 Though civil lawyers complain of the perceived exorbitance(p. 473) of the service rule,129 common lawyers point out that the defendant may challenge the exercise of the jurisdiction on the basis that the appropriate forum for the hearing of the dispute is elsewhere.130

Some common law jurisdictions have extended the concept of jurisdiction by service further still. In the US, ‘minimum [territorial] contacts’131 will suffice for the purpose of finding jurisdiction over the defendant, a term which has been subject to liberal interpretation by the courts.132 For example, the mere presence of a subsidiary of a foreign corporation in the US may provide the necessary minimum contact for the parent corporation.133

In contrast, the civil law approach to the exercise of jurisdiction is predicated on the principle that, where possible, the defendant ought to be sued in its domicile. This may be seen in EC Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels 1 Regulation),134 Article 2 of which provides that ‘[s]ubject to this Regulation, persons domiciled in a Member State [of the EU] shall, whatever their nationality, be sued in the courts of that Member State’.135 The Regulation, however, provides alternative bases of jurisdiction that are not so rigorously territorial where the defendant is already domiciled in the EU, including, inter alia, the locus delicti in cases of tort (Article 5(3)), in cases of contract, the place of performance of the obligation which has been breached (Article 5(1)(a)), the place of delivery of goods or performance of services (Article 5(1)(b)) or, as regards commercial disputes arising out of the operations of a branch, agency or other establishment, the place in which the branch, agency or other establishment is situated (Article 5(5)).136

(p. 474) In a further significant difference with the common law, the notion of discretionary refusal of jurisdiction is anathema to the civil law. As a general rule, if properly seised, a court will be unable to decline jurisdiction unless expressly authorized to do so by the terms of the Regulation.137 For example, under Article 27, in the event of lis pendens, the court second seised must stay the proceedings before it in favour of the court first seised unless the latter determines that it lacks jurisdiction.138

Whilst this approach has the virtue of certainty and consistency, its rigidity may lead to unfortunate practical consequences. In Owusu,139 for example, a single English defendant and five Jamaican defendants were sued in the English courts with respect to an alleged tort taking place in Jamaica. Although the forum conveniens was clearly Jamaica, the mandatory wording of Article 2 and the English domicile of one of the defendants prevented the court from declining jurisdiction.

(B)  Jurisdiction and the Conflict of Laws140

Conflict of laws, also known as private international law, is concerned with issues of the jurisdiction of national courts, the municipal law applicable to disputes with foreign elements, and the cross-border enforcement of judgments. It is usually considered to be merely municipal law, and a bright line is drawn between its study and the study of public international law. If it must be considered international law, the argument runs, then it is international only in the sense that it involves competing and horizontal ‘inter-national’ claims.

According to Mills, the adoption of an international systemic perspective on the conflict of laws reveals an ‘essential confluence’ of public and private international law, sharing as they do similar intellectual progenitors.141 Nationality, for example, is the defining jurisdictional principle for civil legal systems. Article 15 of the French Civil Code provides that ‘French persons may be called before a court of France for obligations contracted by them in a foreign country, even with an alien’. Passive personality is also the focus of Article 14 of the French Civil Code, which permits a foreign person to be called before the French courts with respect to obligations entered into with a French national.

The influence of the territoriality principle in private international law is likewise pervasive, notably in common law systems where the presence of the defendant within the jurisdiction is sufficient to ground the court’s adjudicative power. This is rightly(p. 475) controversial, for under the public international law conception of territoriality, the act or thing which is the subject of adjudicative power must be done within the jurisdiction; the subsequent presence of the defendant will be insufficient. That said, this perceived overreach is reduced by the use of forum non conveniens to decline jurisdiction where another forum is better suited to hear the matter; in the US, consideration of ‘reasonableness’ may also come into play.142 Territoriality is also (less controversially) present in Article 22(1) of the Brussels 1 Regulation, which provides for the exclusive jurisdiction for certain courts, regardless of the defendant’s domicile, where the proceedings in question have as their object rights in rem in immovable property or tenancies in immovable property.

(C)  The Alien Tort Statute and Cognate Legislation143

The universality principle, as expressed in the Eichmann case, is most oft en associated with the prosecution of particularly heinous crimes. Only a few states assert universal civil jurisdiction, that is, prescriptive jurisdiction absent any minimal territorial or national nexus to the delict in question.144 The example par excellence is the United States’ Alien Tort Claims Act 1789, now codified as the Alien Tort Statute (ATS).145

The ATS provides in its relevant part that ‘[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States’. Apparently enacted for the purpose of providing a recourse in tort for acts of piracy or the violation of safe conduct or of the rights of ambassadors,146 the statute fell dormant for almost two centuries before gaining modern importance in Filartiga v Peña-Irala,147 where the Second Circuit Court of Appeals held that it was to be read as incorporating current customary international law protective of individual rights.

An actionable ATS violation will occur only where (a) the plaintiff is an alien, (b) the defendant148 is responsible for a tort, and (c) the tort in question violates international(p. 476) law.149 Not every violation of international law will, however, be considered actionable: the Supreme Court in Sosa v Alvarez-Machain, while falling short of articulating a coherent category, limited the scope of the statute to ‘norm[s] of an international character accepted by the civilized world’.150 In this sense, the ATS draws its legitimacy at least to some extent from the same well-spring as universal criminal jurisdiction over genocide, war crimes, and crimes against humanity.151

Perhaps because of its prescriptive and procedural limitations, the ATS has been the subject of surprisingly little opposition.152 Whilst European states may prefer criminal or administrative remedies for gross human rights violations, they do not seem resistant in principle to ‘universal’ tort jurisdiction of this kind, though they remain opposed to the perceived exorbitance of the US regime of civil jurisdiction in personam.153

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