“Do Not Do Abroad What You Would Not Do at Home?”: An Exploration of the Rationales for Extraterritorial Criminal Jurisdiction over a State’s Nationals

2020 ◽  
Vol 57 ◽  
pp. 1-40
Author(s):  
FRÉDÉRIC MÉGRET
Keyword(s):  
International Law ◽  
International Community ◽  
The State ◽  
Universal Jurisdiction ◽  
Public Officials ◽  
Sexual Offences ◽  
Host State ◽  
Criminal Jurisdiction ◽  
Normative Account ◽  
At Home

AbstractCompared to universal jurisdiction, active nationality jurisdiction remains one of the least understood and written about forms of extraterritorial criminal jurisdiction. This article seeks to offer a normative account of the exercise of criminal jurisdiction by states over their nationals for crimes committed abroad such as sexual offences against minors, bribery of foreign public officials, or medical “circumvention” tourism. It highlights all of the reasons that militate against such assertions of jurisdiction as a matter of policy and law. It goes on to argue that the assertion of criminal jurisdiction over nationals for crimes committed abroad must be understood beyond its permissibility under international law as a modality that manifests the interests of the state of nationality, the territorial (host) state on occasion, the relevant individuals, and, increasingly, the international community.

The Arbitral Award in the Enrica Lexie Case and its Questionable Recognition of Functional Immunity to the Italian Marines Under Customary International Law

2021 ◽  
Vol 30 (1) ◽  
pp. 209-225
Author(s):  
Raffaella Nigro
Keyword(s):  
International Law ◽  
Current Practice ◽  
The State ◽  
Arbitral Tribunal ◽  
Customary International Law ◽  
Criminal Jurisdiction ◽  
State Practice ◽  
Majority Judgment ◽  
Functional Immunity ◽  
The Military

The dispute between Italy and India on the Enrica Lexie incident has finally been decided by the Award handed down on 21 May 2020 by the Arbitral Tribunal to which the Parties had referred the case. After having concluded that it had jurisdiction on the issue of the immunity of the two Italian marines involved in the case at hand, the majority judgment (by three votes to two) affirmed that under customary international law the latter enjoyed functional immunity from the criminal jurisdiction of India. This article will argue that the Arbitral Tribunal’s conclusions are unconvincing, first and foremost, considering that, based on State practice, it is not possible to affirm without reservations that a settled customary rule exists under international law conferring immunity to all State officials, and regardless of the type of functions they perform. In fact, immunity has often been recognized as applying only to certain categories of State officials, and on the basis of the governmental nature of the functions they perform on behalf of the State. Given the doubtful existence under customary international law of a clear rule establishing the functional immunity of all State officials, for all the acts performed in the exercise of their functions, this article argues that the Arbitral Tribunal should have firstly ascertained the existence of a specific customary rule on the immunity of the military abroad, together with the exact content of such rule and, secondly, whether this was applicable in the case of the Enrica Lexie. As current practice stands, military forces abroad are entitled to immunity only under specific circumstances, which do not seem to occur in the present case. In particular, this article maintains that the Italian marines were not entitled to functional immunity. While the acts they performed did indeed fall within their typical functions, they were exercised on behalf of a private subject and not on behalf of the Italian State.

Jurisdiction and Transnational Ne Bis in Idem in Prosecution of Transnational Crimes

2019 ◽  
pp. 475-498
Author(s):  
André Klip
Keyword(s):  
International Law ◽  
Universal Jurisdiction ◽  
Criminal Jurisdiction ◽  
Territorial Jurisdiction ◽  
Ne Bis In Idem ◽  
State Practice ◽  
Extraterritorial Jurisdiction ◽  
Conflicts Of Jurisdiction

This chapter explores the range of jurisdictional principles that have been developed by various states to address the applicability of ne bis in idem to the prosecution of transnational crimes. It first considers two approaches under international law dealing with criminal jurisdiction before discussing state practice on jurisdictional principles, focusing on territorial jurisdiction, the protective principle, the flag principle, and the active nationality principle. The aut dedere, aut judicare principle, passive nationality principle, the domicile principle, the principle of universal jurisdiction, and the principle of complementary jurisdiction/secondary jurisdiction are also examined, along with the justifications for states to vest extraterritorial jurisdiction. The chapter concludes with an analysis of solution mechanisms for the prevention of conflicts of jurisdiction and of limitations to jurisdiction.

Taxation Measures under the Energy Charter Treaty after the Yukos Awards Articles 21(1) and 21(5) Revisited

2019 ◽  
Vol 34 (1) ◽  
pp. 85-106
Author(s):  
Sebastián Green Martínez
Keyword(s):  
International Law ◽  
The State ◽  
Foreign Investor ◽  
Sovereign Power ◽  
Bad Faith ◽  
Public International Law ◽  
Host State ◽  
General Revenue ◽  
Energy Charter Treaty ◽  
Bona Fide

Abstract As the number of investment arbitrations under the Energy Charter Treaty has soared in recent years, parties and arbitrators have faced arguments concerning its Article 21 on taxation measures, which had seldom been applied before. In 2014, the tribunal ruling on the Yukos trilogy held that even though Article 21 excludes taxation from the scope of the treaty, the carve-out could apply “only to bona fide taxation actions, i.e., actions that are motivated by the purpose of raising general revenue for the State”. Article 21 also provides that in cases regarding expropriation “[t]he Investor or the Contracting Party alleging expropriation shall refer the issue of whether the tax is an expropriation or whether the tax is discriminatory to the relevant Competent Tax Authority. Failing such referral by the Investor” in cases of investor-state arbitration, the tribunal “shall make a referral to the relevant Competent Tax Authorities”. The Yukos tribunal considered said referral to be a futile exercise when it is unequivocal that the host State acted in bad faith towards the foreign investor. As a consequence of the Yukos trilogy, the Energy Charter Secretariat has published a report on the issue that recommends potential amendments to clarify Article 21. A number of investor-state arbitral tribunals have also addressed these issues since the Yukos trilogy. Taking a public international law approach, this article critically explores awards and decisions rendered by those tribunals, paying particular attention to their findings on Article 21 vis-à-vis the sovereign power to tax. This article concludes that recent awards dealing with Article 21 arguments have struck an appropriate balance between the prerogatives of States and their obligations under the Energy Charter Treaty. Thus, the article affirms that no amendment seems necessary.

Book I Diplomacy in General, 4 The State: Its Concept as a Legal Person in International Law

2016 ◽  
Author(s):  
Fox Hazel
Keyword(s):  
International Law ◽  
International Community ◽  
The State ◽  
International Organization ◽  
Legal Person ◽  
International Affairs ◽  
Public International Law ◽  
Role Of The State

This chapter addresses the State as the prime actor in the conduct of diplomacy and examines the State’s status as a legal person as defined by international law. To understand the role of the State in international affairs, it is essential to appreciate that it is both a maker and a subject of international law. It has been and continues to be instrumental in the formation of public international law. The chapter thus presents four topics to explain the nature and scope of the powers and activities of the State in international affairs. These are: the qualifications for statehood, recognition of the State as a member of the international community, the State compared to an international organization as a legal person and other entities having lesser rights in international law, and sovereignty as an attribute of the State.

The Establishment of an International Criminal Jurisdiction: The First Phase

1952 ◽  
Vol 46 (1) ◽  
pp. 73-88 ◽  
Author(s):  
Yuen-li Liang
Keyword(s):  
International Law ◽  
International Criminal ◽  
International Community ◽  
General Assembly ◽  
Criminal Jurisdiction

The need for an international criminal jurisdiction was recognized by the General Assembly of the United tjations in a resolution adopted in 1948, in which it was stated in the preamble thalt “in the course of development of the international community, there will be an increasing need of an international judicial organ for the trial of certain crimes under international law.”

International Criminal Jurisdiction

2019 ◽  
pp. 503-528
Author(s):  
Kirsten Schmalenbach
Keyword(s):  
International Law ◽  
International Criminal ◽  
International Community ◽  
Criminal Court ◽  
International Courts ◽  
Criminal Jurisdiction ◽  
National Jurisdiction ◽  
State Consent ◽  
Theoretical Foundations

This chapter examines the theoretical foundations and the genealogy of international criminal jurisdiction in international law. While it is clear that international criminal jurisdiction cuts into national jurisdiction to a certain extent, the question concerning the proper foundation of international criminal jurisdiction—whether it rests on state consent or a mandate by the international community—remains more nuanced and more debated. The chapter also explores judicial perspectives on the jurisdiction of international courts and tribunals. It argues that, where the Security Council has been involved in establishing a court or tribunal, jurisprudence supports the position that international criminal jurisdiction is exercised on behalf of the international community. In the case of the International Criminal Court (ICC), however, the picture becomes more complex, due to the role of domestic criminal jurisdiction and the difficulty in identifying a single international community.

Part II Substantive Law, 5 Universal Jurisdiction and the Obligation to Extradite or Prosecute

2018 ◽  
Author(s):  
Kittichaisaree Kriangsak
Keyword(s):  
International Community ◽  
The State ◽  
Universal Jurisdiction ◽  
Safe Haven ◽  
The Future ◽  
Future Direction ◽  
Substantive Law

Universal jurisdiction exercised over the offenders where there is no connection between their crimes and the State wishing to extradite or prosecute them is a useful tool to prevent them from finding a safe haven anywhere. However, universal jurisdiction has been accused of being abused for political and other unjustifiable objectives. This chapter describes how the international community endeavours to solve this dilemma and charters the course of the future direction for universal jurisdiction in the context of the obligation to extradite or prosecute.

scholarly journals STATE RESPONSIBILITY FOR MODERN SLAVERY: UNCOVERING AND BRIDGING THE GAP

2019 ◽  
Vol 68 (3) ◽  
pp. 539-571 ◽  
Author(s):  
Philippa Webb ◽  
Rosana Garciandia
Keyword(s):  
International Law ◽  
International Community ◽  
The State ◽  
State Responsibility ◽  
State Involvement ◽  
Modern Slavery ◽  
Global Movement

AbstractInternational law prohibits slavery and slavery-like practices under treaties that have been in force for more than a century. Yet, contemporary forms of slavery are one of the prevailing challenges for the international community, with 40.3 million people in modern slavery on any given day in 2016. The State has been largely overlooked as a perpetrator or accomplice in the global movement to eradicate modern slavery. The hand of the State can however be found in contemporary cases of modern slavery. This article identifies five scenarios of State involvement in modern slavery and aims to uncover and bridge the responsibility gap.

Completing the ``International Criminal Order''

1998 ◽  
Vol 67 (2) ◽  
pp. 107-137 ◽  
Author(s):  
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
International Community ◽  
Criminal Court ◽  
Criminal Jurisdiction ◽  
Draft Statute ◽  
Domestic Jurisdiction ◽  
International Law Commission ◽  
Law Commission

AbstractRecent efforts in the United Nations to establish a comprehensive system of international criminal repression by creating a permanent international criminal court are by no means free from doubts regarding the possibility ever to enforce such law. The preamble of the draft statute prepared by the International Law Commission states the basis on which the court is to assert jurisdiction in an ambitious manner: it is the ``International Community'', joining against ``the most serious crimes of international concern''. The project cannot, however, ignore decades of realist criticism against the assumption of the existence of an international community that is ready to accept an international criminal jurisdiction. In the negotiations, this contradiction is dealt with by a technique provided with an ambiguous name: ``complementarity'', i.e. the coordination of the tasks of the international and domestic jurisdiction. The writer discusses the various ideas and proposals presented under the heading of ``complementarity'' in order to examine the tension between communitarian and sovereignty-based strands in the international project to create an effective criminal jurisdiction.

The Resolution of the Institute of International Law on the Immunities of Heads of State and Government

2002 ◽  
Vol 51 (1) ◽  
pp. 119-125 ◽  
Author(s):  
Hazel Fox
Keyword(s):  
International Law ◽  
The State ◽  
Criminal Proceedings ◽  
Public Officials ◽  
Prosecutorial Discretion ◽  
International Crimes ◽  
Civil Aircraft ◽  
Heads Of State ◽  
Witch Hunts ◽  
State Of Israel

A pressing issue of the day requiring authoritative resolution is whether public officials when in office carrying out their official functions may be prosecuted by the courts of other countries for alleged international crimes. Objection has been made, though not by the Danish Government, to a new ambassador appointed by the State of Israel, taking up his appointment as head of the Israeli diplomatic mission in Copenhagen, on the ground of his implication in war crimes. Recently, criminal proceedings were brought in the French courts against Colonel Ghadaffi as the serving Head of the State of Libya for complicity in acts of terrorism resulting in the destruction of a French civil aircraft and death of all its passengers. Writing critically of the Lords' decision in the Pinochet case, Henry Kissinger talks of the tyranny of judges replacing that of government, of prosecutorial discretion without accountability and warns that ‘historically the dictatorship of the virtuous has often led to inquisitions and witch hunts’.

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