- Also called:
- public international law or law of nations
- Related Topics:
- conflict of laws
- force majeure
- space law
- asylum
- terra nullius
Jurisdiction refers to the power of a state to affect persons, property, and circumstances within its territory. It may be exercised through legislative, executive, or judicial actions. International law particularly addresses questions of criminal law and essentially leaves civil jurisdiction to national control. According to the territorial principle, states have exclusive authority to deal with criminal issues arising within their territories; this principle has been modified to permit officials from one state to act within another state in certain circumstances (e.g., the Channel Tunnel arrangements between the United Kingdom and France and the 1994 peace treaty between Israel and Jordan). The nationality principle permits a country to exercise criminal jurisdiction over any of its nationals accused of criminal offenses in another state. Historically, this principle has been associated more closely with civil-law systems than with common-law ones, though its use in common-law systems increased in the late 20th century (e.g., the adoption in Britain of the War Crimes Act in 1991 and the Sex Offenders Act in 1997). Ships and aircraft have the nationality of the state whose flag they fly or in which they are registered and are subject to its jurisdiction.
The passive personality principle allows states, in limited cases, to claim jurisdiction to try a foreign national for offenses committed abroad that affect its own citizens. This principle has been used by the United States to prosecute terrorists and even to arrest (in 1989–90) the de facto leader of Panama, Manuel Noriega, who was subsequently convicted by an American court of cocaine trafficking, racketeering, and money laundering. The principle appears in a number of conventions, including the International Convention Against the Taking of Hostages (1979), the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons (1973), and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984). The protective principle, which is included in the hostages and aircraft-hijacking conventions and the Convention on the Safety of United Nations and Associated Personnel (1994), can be invoked by a state in cases where an alien has committed an act abroad deemed prejudicial to that state’s interests, as distinct from harming the interests of nationals (the passive personality principle). Finally, the universality principle allows for the assertion of jurisdiction in cases where the alleged crime may be prosecuted by all states (e.g., war crimes, crimes against the peace, crimes against humanity, slavery, and piracy).
Jurisdictional immunity exists in certain contexts. Diplomatic personnel, for example, have immunity from prosecution in the state in which they operate. In the 1960s, however, the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations stipulated that the level of immunity varies according to the official’s rank. Immunity is generally more extensive in criminal than in civil matters. A country’s diplomatic mission and archives also are protected. International organizations possess immunity from local jurisdiction in accordance with international conventions (e.g., the General Convention on the Privileges and Immunities of the United Nations of 1946) and agreements signed with the state in which they are based. Certain immunities also extend to the judges of international courts and to visiting armed forces.
Disputes between states
Peaceful settlement
International law provides a variety of methods for settling disputes peacefully, none of which takes precedence over any other. Nonbinding mechanisms include direct negotiations between the parties and the involvement of third parties through good offices, mediation, inquiry, and conciliation. The involvement of regional and global international organizations has increased dramatically since the end of World War II, as many of their charters contain specific peaceful-settlement mechanisms applicable to disputes between member states. The UN may be utilized at several levels. The secretary-general, for example, may use his good offices to suggest the terms or modalities of a settlement, and the General Assembly may recommend particular solutions or methods to resolve disputes. Similarly, the Security Council may recommend solutions (e.g., its resolution in 1967 regarding the Arab-Israeli conflict) or, if there is a threat to or a breach of international peace and security or an act of aggression, issue binding decisions to impose economic sanctions or to authorize the use of military force (e.g., in Korea in 1950 and in Kuwait in 1990). Regional organizations, such as the Organization of American States and the African Union, also have played active roles in resolving interstate disputes.
Additional methods of binding dispute resolution include arbitration and judicial settlement. Arbitration occurs when the disputing states place their conflict before a binding tribunal. In some cases, the tribunal is required to make a number of decisions involving different claimants (e.g., in the dispute between the United States and Iran arising out of the 1979 Iranian revolution), while in others the tribunal will exercise jurisdiction over a single issue only. In a judicial settlement, a dispute is placed before an existing independent court. The most important and comprehensive of these courts is the ICJ, the successor of the Permanent Court of International Justice, created in 1920. Established by the UN Charter (Article 92) as the UN’s principal judicial organ, the ICJ consists of 15 judges who represent the main forms of civilization and principal legal systems of the world. They are elected by the General Assembly and Security Council for nine-year terms.
The ICJ, whose decisions are binding upon the parties and extremely influential generally, possesses both contentious and advisory jurisdiction. Contentious jurisdiction enables the court to hear cases between states, provided that the states concerned have given their consent. This consent may be signaled through a special agreement, or compromis (French: “compromise”); through a convention that gives the court jurisdiction over matters that include the dispute in question (e.g., the genocide convention); or through the so-called optional clause, in which a state makes a declaration in advance accepting the ICJ’s jurisdiction over matters relating to the dispute. The ICJ has issued rulings in numerous important cases, ranging from the Corfu Channel case (1949), in which Albania was ordered to pay compensation to Britain for the damage caused by Albania’s mining of the channel, to the territorial dispute between Botswana and Namibia (1999), in which the ICJ favoured Botswana’s claim over Sedudu (Kasikili) Island. The ICJ’s advisory jurisdiction enables it to give opinions on legal questions put to it by any body authorized by or acting in accordance with the UN Charter.
Other important international judicial bodies are the European Court of Human Rights, established by the European Convention on Human Rights; the Inter-American Court of Human Rights, created by the Inter-American Convention on Human Rights; and the International Tribunal for the Law of the Sea, set up under the Law of the Sea treaty. The World Trade Organization (WTO), established in 1995 to supervise and liberalize world trade, also has created dispute-settlement mechanisms.
Use of force
The UN Charter prohibits the threat or the use of force against the territorial integrity or political independence of states or in any other manner inconsistent with the purposes of the Charter; these proscriptions also are part of customary international law. Force may be used by states only for self-defense or pursuant to a UN Security Council decision giving appropriate authorization (e.g., the decision to authorize the use of force against Iraq by the United States and its allies in the Persian Gulf War in 1990–91). The right of self-defense exists in customary international law and permits states to resort to force if there is an instant and overwhelming need to act, but the use of such force must be proportionate to the threat. The right to self-defense is slightly more restricted under Article 51 of the UN Charter, which refers to the “inherent right of individual or collective self-defence if an armed attack occurs” until the Security Council has taken action. In a series of binding resolutions adopted after the terrorist September 11 attacks in 2001 against the World Trade Center and the Pentagon in the United States, the Security Council emphasized that the right to self-defense also applies with regard to international terrorism. Preemptive strikes by countries that reasonably believe that an attack upon them is imminent are controversial but permissible under international law, provided that the criteria of necessity and proportionality are present.
It has been argued that force may be used without prior UN authorization in cases of extreme domestic human rights abuses (e.g., the actions taken by NATO with regard to Kosovo in 1999 or India’s intervention in East Pakistan [now Bangladesh] in 1971). Nonetheless, humanitarian interventions are deeply controversial, because they contradict the principle of nonintervention in the domestic affairs of other states.
The use of force is regulated by the rules and principles of international humanitarian law. The Geneva Conventions (1949) and their additional protocols (1977) deal with, among other topics, prisoners of war, the sick and wounded, war at sea, occupied territories, and the treatment of civilians. In addition, a number of conventions and declarations detail the types of weapons that may not be used in warfare. So-called “dum-dum bullets,” which cause extensive tissue damage, poisonous gases, and chemical weapons are prohibited, and the use of mines has been restricted. Whether the use of nuclear weapons is per se illegal under international law is an issue of some controversy; in any event, the criteria of necessity and proportionality would have to be met.
International cooperation
States have opted to cooperate in a number of areas beyond merely the allocation and regulation of sovereign rights.
High seas and seabed
Traditionally, the high seas beyond the territorial waters of states have been regarded as open to all and incapable of appropriation. The definition of the high seas has changed somewhat since the creation of the various maritime zones, so that they now are considered to be those waters not included in the exclusive economic zone, territorial sea, or internal waters of states or in the archipelagic waters of archipelagic states.
The high seas are open to all states, with each state possessing the freedoms of navigation and overflight and the freedom to lay submarine cables and pipelines, to conduct scientific research, and to fish. On ships on the high seas, jurisdiction is exercised by the flag state (i.e., the state whose flag is flown by the particular ship). Nevertheless, warships have the right to board a ship that is suspected of engaging in piracy, the slave trade, or unauthorized broadcasting. There also is a right of “hot pursuit,” provided that the pursuit itself is continuous, onto the high seas from the territorial sea or economic zone of the pursuing state in order to detain a vessel suspected of violating the laws of the coastal state in question.
The international seabed (i.e., the seabed beyond the limits of national jurisdiction), parts of which are believed to be rich in minerals, is not subject to national appropriation and has been designated a “common heritage of mankind” by the Declaration of Principles Governing the Seabed (1970) and the Law of the Sea treaty. Activities in the international seabed, also known as “the Area,” are expected to be carried out in the collective interests of all states, and benefits are expected to be shared equitably.
Outer space
Outer space lies beyond the currently undefined upper limit of a state’s sovereign airspace. It was declared free for exploration and use by all states and incapable of national appropriation by a 1963 UN General Assembly resolution. The Outer Space Treaty (1967) reiterated these principles and provided that the exploration and use of outer space should be carried out for the benefit of all countries. The Moon Treaty (1979) provided for the demilitarization of the Moon and other celestial bodies and declared the Moon and its resources to be a “common heritage of mankind.” A number of agreements concerning space objects (1972 and 1974) and the rescue of astronauts (1968) also have been signed.
Antarctica
The Antarctic Treaty (1959) prevents militarization of the Antarctic continent and suspends territorial claims by states for the life of the treaty. Because it provides no mechanism for its termination, however, a continuing and open-ended regime has been created. There also are various agreements that protect Antarctica’s environment.
Protection of the environment
Because the rules of state responsibility require attributions of wrongful acts to particular states—something that is difficult to prove conclusively in cases of harm to the environment—it was recognized that protecting the environment would have to be accomplished by means other than individual state responsibility. Instead, an international cooperative approach has been adopted. For several kinds of pollutants, for example, states have agreed to impose progressively reduced limits on their permissible emissions.
The Stockholm Declaration (1972) and the Rio Declaration (1992), which was issued by the United Nations Conference on Environment and Development, enjoined states to ensure that activities within their jurisdiction do not cause environmental damage to other states or areas. Other agreements have addressed the need for early consultation on potential environmental problems, notification of existing problems, and wider use of environmental-impact assessments. Supervisory and monitoring mechanisms also have been established by several of these agreements, including the Convention on Long-Range Transboundary Air Pollution (1979), the Law of the Sea treaty, the Vienna Convention for the Protection of the Ozone Layer (1985), the amended Convention on Marine Pollution from Land-Based Sources (1986), the Convention on Environmental Impact Assessment in a Transboundary Context (1991), the Convention on Biological Diversity (1992), the United Nations Framework Convention on Climate Change (1992), and the Kyoto Protocol (1997).
Nonstate actors in international law
Individuals
Historically, states were the only subjects of international law. During the 20th century, however, a growing body of international law was devoted to defining the rights and responsibilities of individuals. The rights of individuals under international law are detailed in various human rights instruments and agreements. Although references to the protection of human rights appear in the UN Charter, the principal engine of the process was the Universal Declaration of Human Rights (1948; UDHR). The UDHR has been supplemented by an impressive range of international treaties, including the Convention on the Prevention and Punishment of the Crime of Genocide, the International Convention on the Elimination of All Forms of Racial Discrimination (1965), the International Covenant on Civil and Political Rights (1966), the International Covenant on Economic, Social and Cultural Rights (1966), the Convention on the Elimination of All Forms of Discrimination Against Women (1979), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), and the Convention on the Rights of the Child (1989). With the exception of the convention on genocide, these agreements also have established monitoring committees, which, depending on the terms of the particular agreement, may examine the regular reports required of states, issue general and state-specific comments, and entertain petitions from individuals. The committee against torture may commence an inquiry on its own motion. The broad rights protected in these conventions include the right to life and due process, freedom from discrimination and torture, and freedom of expression and assembly. The right to self-determination and the rights of persons belonging to minority groups are protected by the convention on civil and political rights. In addition, the UN has established a range of organs and mechanisms to protect human rights, including the Commission on Human Rights (replaced in 2006 by the Human Rights Council).
Human rights protections also exist at the regional level. The best-developed system was established by the European Convention on Human Rights, which has more than 40 state parties as well as a court that can hear both interstate and individual applications. Other examples are the Inter-American Convention on Human Rights, which has a commission and a court, and the African Charter on Human and Peoples’ Rights (1982), which has a commission and is developing a court.
In addition to the rights granted to individuals, international law also has endowed them with responsibilities. In particular, following the Nürnberg Charter (1945) and the subsequent establishment of a tribunal to prosecute Nazi war criminals, individuals have been subject to international criminal responsibility and have been directly liable for breaches of international law, irrespective of domestic legal considerations. Individual responsibility was affirmed in the Geneva Conventions and their additional protocols and was affirmed and put into effect by the statutes that created war crimes tribunals for Yugoslavia (1993) and Rwanda (1994), both of which prosecuted, convicted, and sentenced persons accused of war crimes. The Rome Statute of the International Criminal Court, which entered into force in 2002, also provides for individual international criminal responsibility.
