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Government 1740

Government 1740. INTERNATIONAL LAW Summer 2006. Lecture 7: Jurisdiction and Immunity. OUTLINE. I. The general issue II. Types of jurisdiction A. Territorial B. Personal C. Universal III. Jurisdictional controversies A. Extraterritorial US sanctions

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Government 1740

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  1. Government 1740 INTERNATIONAL LAW Summer 2006 Lecture 7: Jurisdiction and Immunity

  2. OUTLINE I. The general issue II. Types of jurisdiction A. Territorial B. Personal C. Universal III. Jurisdictional controversies A. Extraterritorial US sanctions B. Extralegal apprehension IV. Immunity

  3. I. The General Issue Who has authority… to apply law? to enforce law? to adjudicate law?

  4. Domestic Courts Foreign Courts State Practices Treaties Sources of law on Jurisdiction

  5. Territorial Jurisdiction Personal Jurisdiction Universal Jurisdiction Types of Jurisdiction

  6. Most clearly conceded by international law Essential to sovereignty Presence, not necessarily residence Transient jurisdiction: “Fleeting visits” can establish jurisdiction Territorial Jurisdiction

  7. American Banana v. United Fruit (1909) • U.S. Supreme Court • Sherman Act • No jurisdiction: outside the territorial jurisdiction of U.S.

  8. Jurisdiction extends to theTerritorial Sea

  9. Over the Top (1925) U.S. claimed it could enforce tariff law beyond its territorial sea Tariff Act of 1922 British Schooner stopped near Block Island, RI U.S. District Court: no jurisdiction

  10. The Lotus Case (1927) Decided by the PCIJ French mail steamer (Lotus) collided with Turkish coal ship, which sank Subjective Territoriality Rule: Effects on “Turkey” Turkey awarded jurisdiction

  11. “Effects” Arguments: • Forces set in motion outside the territory of a state but having an injurious effect within it should be within the jurisdiction of the harmed states • Examples in treaty law: • Geneva Convention for the Suppression of Counterfeiting Currency (1929) • Geneva Convention for the Suppression of Illicit Drug Traffic (1936)

  12. US v. The Aluminum Company of America (1945) • Alcoa & foreign cartel • U.S. claimed violations of the Sherman Act with effects in the US • US Court Accepted jurisdiction • Held: violation of Sherman Act

  13. Personal (National) Jurisdiction • States have authority over own nationals • What are the standards of nationality? • birth within a country's territory • nationality of parents • nationality of spouse • acceptance of public office • permanence residence.

  14. Extradition • When a foreign state chooses to submit an individual to the jurisdiction of the home state or allow the home state to perform official acts within its own territory • Example: U.S.-U.K. Extradition Treaty (1972)

  15. Universal Jurisdiction • Defendant’s conduct sufficiently heinous as to violate the laws of all states • Conduct in question can be started and completed anywhere • All states may prosecute Augusto Pinochet

  16. The Pros and Cons of Universal Jurisdiction • Pros? • The possibility of universal justice • Cons? • Weak controls over filing suits? • Politicization (of claims and shutting them down)

  17. III. Jurisdictional Controversies: • Extraterritorial applications of US law • Export Administration Act (expired) • International Emergency Economic Powers Act • Helms Burton Act • Extralegal extraterritorial apprehension • The Eichmann Case • US v. Alvarez-Machain (1992)

  18. Adolf Eichmann Case

  19. US v. Alvarez-Machain • Abduction of accused torturer of a US Drug Enforcement Agent from Mexico to Texas

  20. V. Immunity: Foreign states and heads of state • Rationale • Exceptions • US Statutes • Waiver

  21. Diplomatic Representatives and Consuls • Free to perform official business • Not to be harassed, interfered with, or disturbed by local law • Vienna Convention on Diplomatic Relations (1961).

  22. The Iranian Hostage Crisis 1979-1980 American Diplomats as Hostages, Iran 1979 Barry Rosen and Abbas Abdi, Paris 1998

  23. Other Immunities Public ships of foreign states Foreign armed forces

  24. Summary: • Jurisdiction means legal authority • Territorial and national jurisdiction are widely accepted principles; “effects” much less so. • US has also engaged in highly controversial efforts to extend its laws to foreign enterprises • The concept of universal jurisdiction has developed to deal with cases involving particularly heinous crimes. • Extradition Treaties are a way for states to coordinate jurisdictional claims. • Examples of other controversial methods to gain jurisdiction: extra-legal apprehension • Immunity from prosecution in national courts applies to state representatives acting in their official capacity.

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