Chapter 5 Guidance on Answering the Questions in the Book

Question 1:

What does it mean that jurisdiction flows from sovereignty and not from international law?

Guidance:

The question forces the student to consider the origin and basis of jurisdiction. The book notes that jurisdiction is derived from state sovereignty and the point here is that jurisdiction is not something that international law gives to a state but rather that it is inherent in sovereignty. Thus, the purpose of the law is (merely) to limit how a state exercises its jurisdictional powers and therefore seek to ensure that undue friction between states does not arise.

Question 2:

State sovereignty may speak in favor of both a wide and a narrow authority to assert jurisdiction. Why?

Guidance:

The question asks the students to consider the different manners in which the scope of jurisdiction can be interpreted. The book notes that respect for sovereignty may lead to conflicting interpretations of the extent or limits of jurisdictional powers. On the one hand, respect for the state sovereignty of State A speaks in favor of granting that state the authority to influence all those matters that it believes is of its interest. At the same time, though, the respect for the state sovereignty of State B speaks in favor of limiting the authority of State A to influence matters if the result is that State A hereby influences affairs that are also of interest to State B.

Question 3:

Why is the ‘effects doctrine’ in the area of prescriptive jurisdiction controversial?

Guidance:

The question asks the students to consider the limits of prescriptive jurisdiction and notes that the so-called “effects doctrine” as a means of “territorial jurisdiction” is controversial. As the book notes, the principles of prescriptive jurisdiction is based on the premise that there exists some link—also called a “connecting factor”—between the act that a state wants to prescribe and the legitimate interests of the state. The “effects doctrine” is controversial because it may reach acts committed abroad, including acts that are lawful in the state where they are performed, whose only connection to the prescribing state is that they have economic consequences within that state.

Question 4:

Can you think of some examples where a state’s assertion of prescriptive jurisdiction on the basis of the protective principle would be problematic?

Guidance:

The question concerns the “protective principle” according to which a state may extend its prescriptive jurisdiction over acts or matter as long as these have a harmful or deleterious effect on the state. The book notes that this form of jurisdiction requires that the existence of a genuine threat to a vital state interest and it also list a number of offenses that have historically been subjected to prescriptive jurisdiction. The question invites the student to identify some examples of when reliance on this form of jurisdiction would be problematic and the book makes reference to the so-called ‘secondary boycott’ laws that were adopted in the United Stated in the 1990s. These laws were controversial because it could hardly be said that they were applied to acts that constituted a real threat to a vital state interest. The students should be able to identify other examples where a state extends its laws to acts that do not constitute such threats.

Question 5:

What do you think is the best way to handle cases of concurring jurisdiction?

Guidance:

The question concerns the not infrequent situation where two or more states are entitled to claim that they possess prescriptive jurisdiction over the same acts or behavior. The book notes that states are not legally obliged to exercise their jurisdiction in any particular manner but that certain discretionary principles for solving jurisdictional disputes have been adopted in some states, including the principle of comity. It also notes that it is generally the state that has physical custody of an offender that makes the practical determination about which state exercises jurisdiction over the individual. The question asks the student to consider the different approaches and discuss their advantages and disadvantages.

Question 6:

Why is the maxim of mala captus, bene detentus problematic from the point of view of international law?

Guidance:

The book discusses the maxim of mala captus, bene detentus in the treatment of jurisdiction in relation to the issue of whether a state must refrain from criminally prosecuting an individual that has been brought before the courts of the state in a manner that violates international law, for example through a violation of the prohibition against physically enforcing its laws on the territory of another state. The maxim holds that a state can proceed with such a prosecution and it can be said to be problematic from the point of view of international law because it signals that the ends (securing a criminal prosecution) justify the means (violating international law).