Territorial Jurisdiction in International Law
In public international law, the concept of jurisdiction has traditionally had a strong link with the notion of sovereignty. Jurisdiction allows States to give effect to the sovereign independence which they are endowed with in a global system of formally equal States, through stating what the law is relating to persons or activities in which they have a legal interest. Sovereignty however not only serves as an enabling concept with respect to the exercise of jurisdiction, but also as a restraining device: it informs the adoption of international rules restricting the exercise of State jurisdiction.
Rygeart, Cedric, The Concept of Jurisdiction in International Law , accessed 14 September 2020 < https://unijuris.sites.uu.nl/wp-content/uploads/sites/9/2014/12/The-Concept-of-Jurisdiction-in-International-Law.pdf >
Adjudicative jurisdiction refers to a State’s authority to decide competing claims.
The jurisdiction to adjudicate (the power to hear and settle legal disputes) and the jurisdiction to enforce (the power to ensure compliance with legal commands) are territorially limited. In practice, this limits prescriptive jurisdiction as a state cannot enforce its prescriptive jurisdiction within another state; the operation of the police and the courts system are limited to the territory of the state. It is this type of jurisdiction to which the first part of the Lotus Judgment refers. A state cannot in the absence of permission exercise prescriptive jurisdiction outside of its territory. However, there are some rare occasions where states agree that this should occur.
Example of adjudicative jurisdiction: the UK/Netherlands Agreement 1999 permitted the trial of the two Libyan Lockerbie bombing suspects by a Scottish court, according to Scots law, in the Netherlands.
Open University , accessed 14 September 2020 < https://www.open.edu/openlearn/society-politics-law/exploring-the-boundaries-international-law/content-section-4.2 >
When delimiting competences, the law of jurisdiction has mainly relied on the territorial dimension of sovereignty when devising permissive and prohibitive rules: a State’s jurisdictional assertions that pertain to acts carried out in its territory are in principle lawful, while assertions that pertain to acts done outside its territory are suspect, and even presumptively unlawful. This emphasis on territoriality is a reflection of the persistent Westphalian bent of the international legal order: a system of territorially delimited nation States that have full and exclusive sovereignty over their own territory, and no sovereignty over other States’ territory.
Rygeart, Cedric, The Concept of Jurisdiction in International Law , accessed 14 September 2020 < https://unijuris.sites.uu.nl/wp-content/uploads/sites/9/2014/12/The-Concept-of-Jurisdiction-in-International-Law.pdf >
The territorial principle (also territoriality principle) is a principle of public international law under which a sovereign state can prosecute criminal offences that are committed within its borders. The principle also bars states from exercising jurisdiction beyond their borders, unless they have jurisdiction under other principles such as the principle of nationality, the passive personality principle, the protective principle, and possibly universal jurisdiction.
Randall, Kenneth C. (July 2004). “Recent Book on International Law: Book Review — Universal Jurisdiction: International and Municipal Legal Perspectives”. American Journal of International Law.
