Page 52 - Law of Peace, Volume ,

Pam 27-161-1

CHAPTER 4
JURISDICTION
I
Section I. BASES OF JURISDICTION UNDER INTERNATIONAL LAW
4-1. General. a. Having examined the essential charac- has legislative functions and also functions as a law court.
teristics of states, the primary actors in the framework of In turn, a court of law in a municipal legal system may not
public international law, attention must now be focused have been instructed by its legislature to apply a particular
on the manner in which these entities might exercise juris- rule and may thus have to articulate one of its own devis-
diction over territory, individuals and events. In doing so, ing before it can proceed to give it effect. Additionally, the
it is important to note that the term "jurisdiction," or its executive may be empowered to make legal rules. Inter-
equivalent in other languages, expresses a concept which national law does not determine which branch of govern-
is common to municipal legal systems. ment should perform various legislative and judicial func-
b. In the United States, for example, reference is made tions. Accordmgly, it is advisable, if not necessary, to dis-
to "Federal jurisdiction," as opposed to the jurisdiction of cuss the jurisdiction of states under international law in
the States of the Union. This is true in that under U. S. do- terms which are neutral so far as the organs of govern-
mestic law-the Constitution in this instance--certain ment exercising the jurisdiction are concerned.
categories of persons, events or places are subject to J The term jurisdiction is all too often used im-
Federal law and others to the law of the several States. precisely. A sharp distinction between rule-making and
Whenever it is said that a matter is one of "Federal juris- rule-enforcing jurisdiction is essential to effective analysis.
diction," this means that the Federal Government is em- First, the state "prescribes" a rule, which is to say that
powered under the domestic law of the United States to either by act of the legislature, decree of the executive or
act-by way of legislation, juridical decision or executive decision of a court, it declares a generalized principle or
action-with respect to the particular category of persons, legal norm. Second, the state "enforces" the rule. That is,
events, or places involved in the matter at hand. The it arrests, subpoenas witnesses and documents, and tries
same concept applies when one speaks of the jurisdiction and punishes for violation of the rule. Any one of these
of the states. actions-and of course all of them together-is enforce-
c. In the international legal system, the term "jurisdic- ment. Hence, jurisdiction is discussed in terms of the ju-
tion" expresses a concept similar to the concept it ex- risdiction of a state "to prescribe" rules of domestic law
presses in municipal legal systems. When reference is and its jurisdiction "to enforce" them.
made to the "jurisdiction" of a state in the international g. A state normally has jurisdiction to prescribe rules of
system, this means the state is entitled under international domestic law governing conduct taking place physically
law to subject certain categories of persons, events, or within its territory. At the other extreme, no state has ju-
places to its rules of law. It does not follow, however, that risdiction to prescribe rules of domestic law governing the
the rules of international law determining whether a state conduct of everyone everywhere in the world. Normally,
has jurisdiction over a particular person, event, or place a state also has jurisdiction to enforce within its own ter-
are the same as those used in a State legal system in deter- ritory the rules of law it has properly prescribed. Yet, a
mining, for example, whether this court or that court has state may not normally send its police and courts outside
jurisdiction over a particular person, event, or place. its borders to arrest and punish people even for murders
d. Jurisdiction may also refer to the jurisdiction of the committed within its territory. Accordingly, the following
state as a whole and not of its constituent units or political provisions are contained in Restatement, Second, Foreign
subdivisions. The United States is a federation, while Relations Law of the United States.
France, for example, is not. The question as to whether an RESTATEMENT, SECOND, FOREIGN RELATIONS LAW
alien is to be tried by a court of New York State or a U. S. OF THE UNITED STATES (1965)
Federal court or whether he is to be tried by a court in 8 6. Jurisdiction Defined
Paris or Marseilles does not create an international issue of "Jurisdiction," as used in the Restatement of this Subject, means the
jurisdiction. The jurisdictional question in the interna- capacity of a state under international law to prescribe or to enforce a
tional system is whether the United States or France is en- rule of law.
Comment:
titled to try the alien.
a. Prescriptive and enforcement jurisdiction distinguished. Jurisdic-
e. Moreover, the international legal system is not con- tion to "prescribe" refers to the capacity of a state under international
cerned with a state's allocation of its jurisdiction among its law to make a rule of law, whether this capacity be exercised by the legis-
branches of government. In a legal system,-the lative branch or by some other branch of government. Jurisdiction to
making of legal rules might be vested in a legislature and "enforce" refers to the capacity of a state under international law to en-
force a rule of law, whether this capacity be exercised by the judicial or
their enforcement vested in the executive Or judicial the executive branch . . . or by some other branch of government. . . .
branch. However, this division of functions is not always The action taken by a branch of the government of a state may be an
SO distinctive. The House of Lords in the United Kingdom exercise of both jurisdiction to prescribe and jurisdiction to enforce,