Jurisdiction

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Author: Sué González Hauck, Max Milas

Required knowledge: Link

Learning objectives: Understanding XY.

A. Introduction[edit | edit source]

B. Imperial Heritage of Jurisdiction[edit | edit source]

The notion of jurisdiction that prevails in international law is one of European origin, which has been used to justify the colonialist projects of various European notions. This section offers a brief introduction to the European origins of jurisdiction. It retraces the development and application of the concept of jurisdiction as a tool of formal colonisation and explores present-day implications of this imperial heritage.

I. Origins of Jurisdiction on the European Continent[edit | edit source]

In the Roman Republic, iuris dictio denoted the function of an official to judge in a matter.[1] The overarching principle defining jurisdiction was the principle of personality.[2] Jurisdiction thus referred both to the personal competence of someone holding an office to decide in a legally binding manner and the to the capacity of an individual person to invoke, e.g., Roman law. This personality principle necessarily lead to pluralistic legal arrangements, in which an individual person could simultaneously be bound by multiple bodies of rules stemming from different authorities.[3]

The medieval concept of iurisdictio arose from the combination of iuris-dictio (to speak the law) and iuris-ditio (the power of the law).[4] Generally speaking, iurisdictio meant authority (potestas) rather than a legal concept.[5] This, in turn, was divided into legal power (iurisdictio simplex) and other powers (imperium).[6] In this respect, the modern concept of jurisdiction is perhaps more similar to the Roman concept than to the medieval one.[7] 

The development of the notion of jurisdiction in the 16th and 17th centuries was intimately linked to the development of territorial sovereignty. It was Jean Bodin’s idea of sovereignty as absolute authority over a population within a territory that sparked authors like Pierre Ayrault to develop early versions of territorial jurisdiction.[8]

The parallel development of territorial sovereignty and jurisdiction, however, did not mean that jurisdiction as it developed on the European continent in the 16th and 17th centuries was devoid of personal and religious components. The Spanish and Portuguese concept of jurisdiction in particular were embedded in religious ideas of natural law that distinguished between particular and local forms of worldly jurisdiction on the one hand and universal jurisdiction of the catholic church on the other hand. The Spanish Requirement (Requerimiento) of 1513, sets out this universal religious jurisdiction as follows: ‘[o]f all these nations God our Lord gave charge to one man, called St. Peter, that he should be lord and superior of all the men in the world, that all should obey him, and that he should be the head of the whole human race, wherever men should live, and under whatever law, sect, or belief they should be; and he gave him the world for his kingdom and jurisdiction’.[9]


II. Jurisdiction as a Technology of Colonial Imperialism[edit | edit source]

The main argument that Spanish conquistadores deployed to justify the subjugation of the indigenous population in the ‘New World’ was the aforementioned universal jurisdiction of the catholic church, which was exercised by the pope.[10]

The concept of jurisdiction in international law was subsequently formed by Alberico Gentili and by Hugo Grotius. Grotius developed the concept of ‘freedom of the seas’[11] on behalf of the Dutch East India Corporation.[12] The main argument in his work Mare Liberum served to counter British and Spanish claims of exclusivity over the Atlantic and to legally facilitate the economic exploitation of the oceans by the Dutch East India Corporation.[13] The construction of jurisdiction-free spaces thus enabled European colonial powers to pursue their interests unhindered and seemingly legitimized by international law. Similarly, Europeans used the concept of ‘terra nullius’ to legitimize colonial violence.[14]

The development of jurisdiction in the 19th century was marked by increasing formalization, which had two main consequences: First, on the European continent, jurisdiction was now exclusively tied to territory and the plurality of legal sources to which an individual person could refer was reduced to the single source of state jurisdiction defined by territory. Second, formal colonial governments and bureaucracies replaced chartered companies as the protagonists of colonial appropriation, which resulted in the ‘formalization of empire’ and included the imposition of strict territorial boundaries.[15] In the colonies as well as in semi-colonial territories and even territories that were not subject to colonial rule but still subject to Western hegemony, the newly established Western model of exclusive territorial state jurisdiction was defended by dismissing and supplanting non-Western laws as unsystematic.[16]

Even though the Western model of jurisdiction was imposed on colonized territories, jurisdiction in the colonies differed from jurisdiction on the European continent. After all, the colonies were built on inequality and on – at best – relative sovereignty of peoples in the South, whereas jurisdiction on the European continent relied on sovereign equality and non-intervention.[17]

‘To complicate matters, no regime was firmly territorialized under colonial rule such that colonial jurisdictions were total and complete. Colonialism was never monolithic. Even settler-colonies tended to exempt indigenous peoples from European colonial jurisdictions, albeit in an inconsistent manner, resulting in deep practical problems in legal courts. Jurisdiction and territoriality imposed by foreign sovereigns were sometimes recognized by colonial subjects or tacitly accepted, while at other times they were aggressively challenged. Both phenomena of collaboration and resistance would almost always be found in one territory simultaneously. As a result, colonial jurisdictions were, more often than not, precarious right up to the end and beset with practical problems. To add to this, colonial rule often led to many layers of jurisdiction within a single territory resulting in complex jurisdictions which were ordered hierarchically within colonial formulation with European legal orders at the very top. Pluralist configurations in various formats further complicated matters as different groups could jostle over jurisdictional politics’.[18]

‘On the flip side of the coin, extraterritorial jurisdictions in the form of treaty ports, concessions, garrisons, and protectorates could be seen as an extreme manifestation of this scheme of privileges and exceptions. The primary impetus for engaging in extraterritorial negotiations was to protect commercial interests. Extensive commercial contact naturally led to many disputes and Europeans refused to be subjected to non-Western laws. Asymmetry of power is implied in every concessionary arrangement. Extraterritoriality was rightfully deemed to be ‘quintessential legal imperialism’, especially since it was yoked to a scale of civilization’.[19]


III. Present-Day Implications[edit | edit source]

C. Territories of Jurisdiction[edit | edit source]

I. Domestic Jurisdiction[edit | edit source]

1. Territorial Jurisdiction[edit | edit source]

As with most international law stories centred around the defining idea of ‘classical’ international law – state sovereignty – the usual starting points for the doctrine of territorial jurisdiction are the Island of Palmas[20] arbitral award and the PCIJ Lotus[21] case.

The arbiter in the Island of Palmas case was Max Huber. His famous statement on the relationship between territorial sovereignty and jurisdiction reads: ‘Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the function of a State’.[22]

The Lotus case, which the PCIJ decided in 1927 and which has since then become one of the most cited international law cases, was directly concerned with jurisdiction.

2. Extraterritorial Jurisdiction[edit | edit source]

II. International Jurisdiction[edit | edit source]

1. International Organisations[edit | edit source]

2. International Courts[edit | edit source]

Briefly, reference to https://en.wikibooks.org/wiki/Public_International_Law/Peaceful_Settlement_of_Disputes#a._Contentious_Jurisdiction

a) Contentious Jurisdiction[edit | edit source]
b) Advisory Jurisdiction[edit | edit source]
c) Incidental Jurisdiction[edit | edit source]

III. Overlapping Jurisdictions[edit | edit source]

D. Types of Jurisdiction[edit | edit source]

I. Prescriptive Jurisdiction[edit | edit source]

1. Territorial Principle[edit | edit source]

2. Nationality Principle[edit | edit source]

3. Passive Personality Principle[edit | edit source]

4. Protective Principle[edit | edit source]

5. Universal Jurisdiction[edit | edit source]

II. Enforcement Jurisdiction[edit | edit source]

III. Adjudicative Jurisdiction[edit | edit source]

E. Situating Jurisdiction in International Law[edit | edit source]

I. Jurisdiction in General International Law[edit | edit source]

1. Sovereignty[edit | edit source]

2. Immunities[edit | edit source]

3. State Responsibility[edit | edit source]

II. Jurisdiction in Specialised Fields of International Law[edit | edit source]

1. International Human Rights Law[edit | edit source]

2. International Private Law[edit | edit source]

3. Cyberspace[edit | edit source]

4. Law of the Sea[edit | edit source]

5. International Criminal Law[edit | edit source]

6. International Environmental Law[edit | edit source]

F. Politics of Jurisdiction[edit | edit source]

I. Authority and Authorisation[edit | edit source]

II. Jurisdiction as Worldmaking[edit | edit source]

III. Jurisdictional Encounters[edit | edit source]

IV. Thinking With Jurisdiction[edit | edit source]

Further Readings[edit | edit source]

  • Daniel S. Margolies, Umut Özsu, Maïa Pal, and Ntina Tzouvala (eds.), The Extraterritoriality of Law: History, Theory, Politics, Abingdon/New York, Routledge, 2019, vii-235 p.
  • Cedric Ryngaert, Jurisdiction in International Law, Oxford, Oxford University Press, 2nd ed., 2015, 235 p.
  • Lea Raible, Human rights unbound: a theory of extraterritoriality, Oxford, OUP, 2020, xvi-235p.
  • Nicole Roughan, Authorities. Conflicts, Cooperation and Transnational Legal Theory, Oxford, OUP, 2013, 262 p.
  • Nicole Roughan, Authorities. Conflicts, Cooperation and Transnational Legal Theory, Oxford, OUP, 2013, 262 p.
  • Matthew Craven, “What Happened to Unequal Treaties? The Continuities of Informal Empire”, Nordic Journal of International Law, 2005, Vol. 74, No. 3-4, pp. 335-382. (cited in Gleider Hernández, International Law, Oxford, OUP, 2019, lxxv-588p., p. 207)

Conclusion[edit | edit source]

  • Summary I
  • Summary II

Table of Contents[edit source]

Back to home page

Part I - History, Theory, and Methods

Part II - General International Law

Part III - Specialized Fields

Footnotes[edit source]

  1. Louise Hodgson, Res Publica and the Roman Republic: ‘Without Body or Form’ (Oxford University Press 2017) 31, 83 f.
  2. Kaius Tuori, ‘The Beginnings of State Jurisdiction in International Law until 1648’, in Stephen Allen et al (eds) The Oxford Handbook of Jurisdiction in International Law (OUP 2019) 25-39, 28, citing Dieter Nörr, Imperium und polis in der hohen Prinzipatszeit (Munich: Beck, 1966).
  3. Kaius Tuori, ‘The Beginnings of State Jurisdiction in International Law until 1648’, in Stephen Allen et al (eds) The Oxford Handbook of Jurisdiction in International Law (OUP 2019) 25-39, 28.
  4. Guido Rossi, ‘Deconstructing Iurisdiction: The Adventures of a Legal Category in the Hands of the Humanist Jurists’ in John W Cairns and Paul J du Plessis (eds), Reassessing Legal Humanism and its Claims: Petere Fontes? (Edinburgh University Press 2015) 62.
  5. Ibid.
  6. Ibid.
  7. Ibid.
  8. Stéphane Beaulac, ‘The Lotus Case in Context: Sovereignty, Westphalia, Vattel, and Positivism’, in Stephen Allen et al (eds) The Oxford Handbook of Jurisdiction in International Law (OUP 2019) 40-58, 46, citing Pierre Ayrault, L’Ordre, formalité et instruction judiciaire, dont les anciens Grecs et Romains ont usé és accusations publiques (Paris: Michel Sonnius, 1588).
  9. Kenneth L. Karst and Keith S. Rosenn, Law and Development in Latin America (Berkeley: University of California Press, 1975), 32; Nurfadzilah Yahaya, ‘The European Conception of Jurisdiction in the Colonies’ in Stephen Allen et al (eds) The Oxford Handbook of Jurisdiction in International Law (OUP 2019) 60-80, 60.
  10. Nurfadzilah Yahaya, ‘The European Conception of Jurisdiction in the Colonies’ in Stephen Allen et al (eds) The Oxford Handbook of Jurisdiction in International Law (OUP 2019) 60-80, 60.
  11. Hugo Grotius, The Freedom of the Seas or The Right Which Belongs to the Dutch to Take Part in the East Indian Trade (Ralph van Deman MaGoffin tr, Oxford University Press 1916) 24 ff.
  12. Martine Julia van Ittersum, ‘Grotius: The Making of a Founding Father of International Law’ in Anne Orford and Florian Hoffmann (eds), The Oxford Handbook of the Theory of International Law (Oxford University Press 2016) 82, 84-85.
  13. Nurfadzilah Yahaya, ‘The European Conception of Jurisdiction in the Colonies’ in Stephen Allen et al (eds) The Oxford Handbook of Jurisdiction in International Law (OUP 2019) 60-80, 61.
  14. Nurfadzilah Yahaya, ‘The European Conception of Jurisdiction in the Colonies’ in Stephen Allen et al (eds) The Oxford Handbook of Jurisdiction in International Law (OUP 2019) 60-80, 66.
  15. Nurfadzilah Yahaya, ‘The European Conception of Jurisdiction in the Colonies’ in Stephen Allen et al (eds) The Oxford Handbook of Jurisdiction in International Law (OUP 2019) 60, 62-63.
  16. Nurfadzilah Yahaya, ‘The European Conception of Jurisdiction in the Colonies’ in Stephen Allen et al (eds) The Oxford Handbook of Jurisdiction in International Law (OUP 2019) 60, 64-65; Werner Menski, Hindu Law: Beyond Tradition and Modernity (New Delhi: Oxford University Press, 2003); John Strawson, ‘Islamic Law and English Texts’, in Eve Darian- Smith and Peter Fitzpatrick (eds.), Laws of the Postcolonial (Ann Arbor: University of Michigan Press, 1999); Bernard Cohn, Colonialism and its Forms of Knowledge: The British in India (Princeton: Princeton University Press 1996).
  17. Nurfadzilah Yahaya, ‘The European Conception of Jurisdiction in the Colonies’ in Stephen Allen et al (eds) The Oxford Handbook of Jurisdiction in International Law (OUP 2019) 60, p. #; Antony Anghie#
  18. Nurfadzilah Yahaya, ‘The European Conception of Jurisdiction in the Colonies’ in Stephen Allen et al (eds) The Oxford Handbook of Jurisdiction in International Law (OUP 2019) 60, 69.
  19. Nurfadzilah Yahaya, ‘The European Conception of Jurisdiction in the Colonies’ in Stephen Allen et al (eds) The Oxford Handbook of Jurisdiction in International Law (OUP 2019) 60, 69; Turan Kayaoglu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge: Cambridge University Press, 2014), 6; #Ntina Tzouvala.
  20. Island of Palmas Case (Netherlands v United States of America), Permanent Court of Arbitration, Arbitral Award, Case No. 1925-01, 4 April 1928; Cf. Cedric Ryngaert, ‘Territory in the Law of Jurisdiction: Imagining Alternatives’ in M. Kuijer and W. Werner (eds.) Netherlands Yearbook of International Law 2016 (T.M.C. Asser Press 2017) 53.
  21. SS ‘Lotus’ (France v Turkey) (1927) No. 10 Ser A (PCIJ).
  22. Island of Palmas Case (Netherlands v United States of America), Permanent Court of Arbitration, Arbitral Award, Case No. 1925-01, 4 April 1928, at 838.