JURISDICTION OF STATES Lotus Case: France v Turkey

Prepared by: Joshua John A. Granada

1. The French steamship LOTUS was on its way
Jurisdiction - authority to affect legal interests to Constantinople (present day Istanbul)
2. While still in the high seas, it collided with the
International Jurisdiction - allocation of power and Turkish cutter Boz-Kourt
authority amongst states 3. As a result, the Turkish boat sunk and 8 sailors
were killed.
Three types of jurisdiction: 4. When Lotus docked in Constantinople, Turkish
1. Jurisdiction to prescribe authorities arrested Lieutenant Demons, the
2. To enforce French OIC.
3. To adjudicate 5. Hassen Bey, Captain of Boz-Kourt, was also
arrested. Both were charged of manslaughter.
International law limits itself to criminal rather than a. The French government questioned Turkey's
civil jurisdiction. action in taking jurisdiction over the case on the
ground THAT the incident happened on the
Five generally accepted principles of jurisdiction: high seas and therefore outside Turkey's
jurisdiction
1. Territoriality 6. The French and Turks agreed to submit the
2. Nationality dispute to the Permanent Court of Intl. Justice
3. Protective (now the ICJ).
4. Universality
5. Passive Personality Issue: Whether or not Turkey violated international
law by taking jurisdiction over the incident.

Territoriality Ruling: As a general rule, a State may not exercise

a. Subjective Territoriality
- a state has jurisdiction to prescribe a rule for any
activity takes place within its territory of state
- the VAST majority of criminal legislation
comprises of this type
b. Objective Territoriality
- a state has jurisdiction if an action takes place
outside its territory and the primary effect is within
its territory
its power in any form in the territory of another State
IF there is no existing rule to the contrary, or
permissive rule derived from international custom or
convention. In this sense, jurisdiction is territorial.
By virtue of the principle of the freedom of the seas,
a ship is placed in the same position as national
territory. If a guilty act committed on the high seas
produces its effects on a vessel flying another flag or
in a foreign territory, it must be viewed as if the two
territories of different States were concerned.

Ex.: A Canadian shoots an American across the
Niagara Falls in NY. The shooting takes place in
Canada but the murder happens in NY. Applying
objective territoriality, the US would have
jurisdiction
There is no rule of international law prohibiting the
State to which the ship on which the effects of the
offense have taken place belongs, from regarding the
offense as having been committed in its territory and
prosecuting the delinquent.

Therefore, absent an International Law prohibiting

the same, Turkey has not acted in conflict with
International Law by taking jurisdiction over said
incident.
Under Article 97(1) of the 1982 Law of the Sea
Convention:
"In the event of a collision or any other incident of
navigation concerning a ship on the high seas,
involving the penal or disciplinary responsibility of
the master or of any other person in the service of
the ship, penal and administrative jurisdiction is
limited to:
a. Flag State of the vessel alleged to be responsible
b. State of nationality of the accused
Thus, under modern INTL LAW, France shall have
exclusive jurisdiction because:
a. The flag State of Lotus is France
b. The nationality of Lt. Demons is French
Jurisdiction over Foreign Vessels in Phil.
Territory
French Rule - crimes committed aboard a foreign
merchant vessel should not be prosecuted in the
courts of the country within whose territorial
jurisdiction they were committed unless the peace
and territory of the country is affected
English Rule - crimes perpetrated under such
circumstances are in general triable in the courts of
the country within whose territory they were
committed
The Philippines follows the English Rule
Exception to Territoriality:
Exterritoriality - status used to describe a person or
thing within the territory of a state, but by rule of
international law the state has no jurisdiction over it.
Ex.: Heads of foreign missions, heads of state, etc.
Nationality
a. Active - State asserts right to prescribe a law for
an action based on the nationality of the actor
b. Passive - jurisdiction based on the nationality of
VICTIM, not ACTOR
It is a general notion in international law that every
state has jurisdiction over its nationals even those
nationals outside its state.
Query: May a state issue subpoenas for a national
residing outside its territory to return to the country
and appear in court; and if the national fails in so
doing, may said national be adjudged guilty of
contempt?
YES.
"The United States possesses the power inherent in
sovereignty to require the return to this country of a
citizen, resident elsewhere, whenever the public
interest requires it, and to penalize him in case of
refusal." (Blackmer v United States)
Each State has the right to decide who are its
nationals using either jus sanguinis or jus soli.
However, for the state to claim protection over a
person, the state must have a reasonable connection
or an effective national link.
Effective National Link - determines which of two
states a person is a national of will be recognized to
have the right to give diplomatic protection such
person (i.e. a person of dual nationality).
Nottebohm Case: Liechtenstein v Guatemala
1. Nottebohm was a German national by birth. He
moved to Guatemala in 1905 where he resided
and made business.
2. On several occasions, he made business trips to
Germany. Between to 1931-1939, he made
several trips to Liechtenstein.
3. In October 1939, he applied for citizenship by
naturalization in Liechtenstein.
4. By the end of October 1939, he was granted
citizenship and received a Liechtenstein
passport
5. On Dec 1, 1939, he received a visa from the
Guatemalan consul in Zurich. He returned to
Guatemala shortly after.
6. Guatemala declared war against Germany in
December, 1941. Guatemala arrested
Nottebohm in 1943 as a dangerous enemy alien
and deported to the US where he was interned
until 1946.
7. He returned to Liechtenstein after Guatemala
refused his readmission. By 1949, Guatemala
had confiscated his property on the grounds that
he was an enemy alien.
8. In 1951, Liechtenstein brought an action against
Guatemala, asking the ICJ to declare that the
Gov. of Guatemala, in arresting, detaining,
expelling, and refusing to readmit Nottebohm
breached their obligations in international law.
9. Guatemala responded, asking the Court to
declare the claim inadmissible on the grounds
of the nationality of the claimant.
Theory of Liechtenstein: When Nottebohm was
naturalized and given citizenship by Liechtenstein,
he was divested of his German citizenship and
became a national of Liechtenstein.
Theory of Guatemala: It is well-established in
international law that it is the bond of nationality
between the State and the individual which alone
confers upon the State the right of diplomatic
protection.
Issue: Whether or not Nottebohm is a national of
Liechtenstein, and thus afforded diplomatic
protection; i.e. the claim of Liechtenstein regarding
Nottebohm is admissible before the ICJ.
Ruling: Generally, it is within the competence of
States alone to determine who are its nationals and
who are not. However, such determination, does not
necessarily or automatically have an international
effect and will not bind another state to recognize the
same.
According to the practice of States, nationality is a
legal bond having its basis as a social fact of
attachment, a genuine connection of existence,
interest, and sentiments; it is being more closely
connected with the population of the State conferring
nationality than with any other State.
To ascertain Nottebohm's nationality therefore, the
Court must consider the factual connection between
Nottebohm and Liechtenstein. The factual
connections that need to be considered of an
individual are his: habitual residence, centers of
interest, family ties, participation in public life, etc.
For Nottebohm's case, his application for
naturalization was motivated by his desire to
dissociate himself with Germany. He has settled in
Guatemala for 34 years. It remained the center of his
interests and business act. Other members of his
family asserted Nottebohm's desire to spend his old
age in Guatemala. On the other hand, he has no
settled abode, no prolonged residence in
Liechtenstein. He has no intention of settling. On the
contrary, he returned to Guatemala very shortly after
his naturalization.
These facts clearly establish the absence of any bond
between Nottebohm and Liechtenstein and the
existence of a long-standing and close connection
with Guatemala.
Therefore, Nottebohms naturalization was lacking
in genuineness. Guatemala is under no obligation to
recognize a nationality granted in such
circumstances. Liechtenstein is NOT entitled to
extend its protection to Nottebohm and its claim is
held inadmissible.
Corporations the state has jurisdiction over
corporations organized under its laws
Maritime vessels the state has jurisdiction over
vessels flying its flag
Stateless persons those who do not have a
nationality. There are two types:
a. De jure - those who have lost their nationality
b. De facto - those who have a nationality but to
whom protection is denied by their state when out of
state (e.g. refugees).
Query: Does a stateless person enjoy protection
against violation of their human rights in the
Philippines?
YES. As ruled in Mejoff v Director of Prisons:
"The protection against deprivation of liberty
without due process of law and except for crimes
committed against the laws of the land is not limited
to Philippine citizens but extends to all residents,
except enemy aliens, regardless of nationality.
"By its Constitution (Art II, Sec. 3), the Philippines
adopts the generally accepted principles of
international law as part of the law of Nation."
The Philippines is a member of the General
Assembly of the United Nations, which approved the
Universal Declaration of Human Rights last
December 10, 1948. Under said resolution, "All
human beings are born free and equal in degree and
rights."
Therefore, by virtue of the doctrine of incorporation,
a stateless person enjoys protection against violation
of their human rights in the Philippines.
Protective
- a sovereign may punish actions in committed in
other places if it feels threatened by those actions; a
situation where the State or Sovereign is the victim
itself
- a state may exercise jurisdiction over conduct
outside its territory that threatens its security, as long
as that conduct is generally recognized as criminal
by states in the international community.
Ex.: Plots to overthrow the government, forging its
currency, plot to break its immigration regulations,
etc.
Limitations on the Principle:
"The international community has strictly construed
the reach of this doctrine to those offenses posing a
direct specific threat to national security." (United
States v Yunis)
A more liberal interpretation of the protective
principle is applied to terroristic activities.
Universality
- certain activities that are universally dangerous to
states and their subjects require the authority in all
community members to punish such acts wherever
they may occur, even absent a link between the state
and the parties or the acts in question.
- historically, universality was the right of any
sovereign to capture pirates and punish piracy. Now
it is jus cogens; it includes: slavery, genocide,
hijacking, war crimes, and crimes against humanity.
Jurisdiction over crimes committed by aliens outside
the territory on the sole basis of the presence of the
alien within the territory of the state assuming
jurisdiction
Acts Covered
a. Piracy - by sea or air
b. Genocide - intent to destroy a national, ethnical,
racial, or religious group
c. Crimes against humanity - acts when committed
as part of a wide-spread or systematic attack directed
against any civilian population
1. Murder
2. Extermination
3. Enslavement
4. Deportation or forcible transfer of
population
5. Imprisonment
6. Torture
7. Rape or human trafficking
8. Persecution based on politics, race, ethnicity,
religion
9. Enforced disappearances of persons
10. Apartheid - segregation by race
11. Other inhumane acts of a similar character
d. War Crimes
1. Article 3 to 4 of the Geneva Convention
2. Article 8 of the Rome Statute of the
International Criminal Court:
- Torture or inhuman treatment, including
biological experiments
- Compelling a prisoner of war to serve in
the forces of a hostile Power
- Intentionally directing attacks against the
civilian population
(Note: Please see above laws for complete list)
Attorney General of Israel v Adolf Eichmann;
Eichmann v Attorney General of Israel
1. Adolf Eichmann was a high ranking SS officer
who played a central role in the planning and
implementation of the persecution of Jews in
Germany, Poland, and Hungary.
2. When the war ended, he fled to Argentina.
3. He sojourned therein until 1960, when he was
kidnapped by Israeli agents.
4. Though Argentina protested the abduction
stating that Israel's acts infringed its rights, both
States regarded the incident that arose as closed
in the same year.
5. Eichmann was then tried under Israel's Nazi-
Collaborator's Law.
Theory of Eichmann:
1. That Israel, by imposing punishment for acts
done outside the boundaries of the State before
its establishment, conflicts with international
law and exceeds the powers of Israel
Legislature.
2. The prosecution of Eichmann following his
abduction conflicts with international law and
exceeds the jurisdiction of the Court.
Theory of Israel:
1. The State of Israel has the "right to punish" with
respect to the offenses in question based on the
universal character of the crimes in question
and their specific character to exterminate the
Jewish people.
Issue: Whether or not the State of Israel has
jurisdiction and the right to punish Adolf Eichmann.
Ruling: Israels right to punish is founded on two
elements.
First, the universal character of the crimes in
question, which are grave offences against the law of
nations itself and, in the absence of an international
court, grant jurisdiction to any domestic court.
In other words, since the crimes of Eichmann are
universal in character, any State has jurisdiction over
them.
Second, the specific character of the crimes, which
was the extermination of the Jewish people, provides
the necessary linking point between the Accused and
the newly-founded State of Israel, a State established
and recognised as the State of the Jews.
The crimes committed by the Accused concern the
vital interests of the State, thus it has a right to
punish the Accused pursuant to the protective
principle.
As for the second issue: Israel's jurisdiction is not
negated by the manner in which the Accused was
brought before the Court. It is an established rule of
law that a person standing trial for an offence against
the laws of a State may not oppose his being tried by
reason of the illegality of his arrest or the means by
which he was brought to the jurisdiction of the court.
Therefore, by virtue of the principles of universality
and protection, the Court of Israel has jurisdiction
and the right to punish Adolf Eichmann.
Passive Personality Principle
- a state may apply law to an act committed outside
its territory by a person not its national where the
victim of the act was its national
United States v Yunis
1. In 1985, Fawaz Yunis and four other men
hijacked a Jordanian Airlines flight in Beirut,
Lebanon with two American citizens on board.
The plane immediately took off and
unsuccessfully attempted to fly to Tunis, where
a conference of the Arab League was under
way.
2. Eventually, the plane landed back in Beirut, the
passengers were set free, and the hijackers held
a press conference reiterating their demands.
3. The men then blew up the plane and fled from
the airport. Note: the plane never flew over
American airspace.
4. After an FBI investigation, an arrest warrant
was obtained and an operation was put into
motion to arrest Yunis.
5. Undercover FBI agents lured Yunis onto a
yacht in the eastern Mediterranean Sea and
arrested him once the craft entered international
waters.
6. Thereafter, Yunis was flown to Washington
D.C. and charged with conspiracy, aircraft
piracy, and hostage taking.
7. Yunis was convicted and he appealed, claiming
that the district court lacked subject matter
jurisdiction and personal jurisdiction to try him
on the charges considering the aircraft hijacked
never flew over American airspace.
Issue: Whether or not the district court has
jurisdiction to try Yunis.
Ruling: Yes. The federal government may prosecute
an airline hijacker even if the hijackings only
connection with the United States was the presence
of Americans on board the plane.
International law recognizes several bases for a
nation to give extraterritorial application to its laws.
The universality principle is applicable because
numerous conventions condemn hijacking and
hostage taking. The passive personal principle is
also relevant, which applies to offenses against a
nations citizens abroad.
Each State has a legitimate interest in protecting the
safety of its citizens when they journey outside
national boundaries. The international community
therefore recognizes a State's legitimacy in assuming
jurisdiction in pursuance of the safety of its
nationals.
Furthermore, the Hostage Taking Convention, the
US being a signatory thereof, gave each signatory
the discretion to exercise extraterritorial jurisdiction
with respect to a hostage who is a national of that
state if that state considers it appropriate.
Principles of International Jurisdiction Applied
by the Phil:
1. Territoriality - Article 14 of Civil Code
2. Nationality - Article 15 of Civil Code
3. Protective - Article 2 of RPC
4. Universality - with respect to Piracy (People v
Lol-lo)
Conflicts of Jurisdiction: How Resolved
Balancing Test
The following questions are asked:
1. Was there an actual or intended effect on the
State?
2. Is the effect sufficiently large enough to present
a cognizable injury to the State?
3. Are the interests and link to the State
sufficiently strong, vis-a-vis those of other
nations to justify an assertion of extraordinary
authority?
If the answer to all is YES, the Court will assume
jurisdiction.
International Comity
A state may not acquire jurisdiction if it is
unreasonable. In determining unreasonableness, the
following factors are considered:
1. Link of the activity to the territory of the
regulating State
2. Nationality, residence, or economic activity
between the regulating state and the person
responsible
3. Character of the activity to be regulated
4. Existence of justified expectations that might be
protected or hurt by the regulation
5. Likelihood of conflict with another State
Forum non conveiens
If there is a real unfairness to one of the States in
permitting the choice of forum which is not the
natural or proper forum either on the ground of
convenience of trial or the residence or domicile of
parties or of its being locus contractus or locus
solitionis, the doctrine of Forum non conveiens is
properly applied.
Extradition
- removal of an accused from the requested state
(asylum State) with the object of placing him at the
disposal of foreign authorities to enable the
requesting state to hold him in connection with any
criminal investigation directed against him or the
execution of a penalty imposed on him under the
penal laws of the requesting state
- a fugitive of justice may only be extradited upon
the authority of an extradition treaty between the
requesting and requested states
Who may be extradited?
Only those persons charged or convicted of offenses
that are extraditable under the terms of the
extradition treaty between the requesting State where
the crime was committed and the requested State
where the fugitive has sought refuge.
In the absence of a treaty, there is no obligation to
extradite. A State may volunteer to extradite an
individual voluntarily but it is obliged only by the
terms of a treaty.
Offenses Subject to Extradition:
a. Those specifically listed in the treaty
b. Those defined and punished as crimes under the
laws of both the requesting and requested States.
General exceptions: political and religious offenses
Principle of Double Criminality - an offense is
extraditable if it is defined and punished as a crime
under the laws of both State Parties
Note: the Phil. employs double criminality (Sec 3 of
PD 1096 of the Phil Extradition Law)
Elements of Extradition:
a. Acts of sovereignty on the part of two States
b. Request by one State to another for the delivery of
a criminal
c. Delivery of the person requested for the purpose
of trial or sentence in the territory of an existing
State
Irregular Renditions
An irregular rendition is an unconventional form of
extradition. Generally, an extradition can only be
achieved by force of a treaty upon request of a state
to another. However, in the absence of such,
extradition may be achieved through the following
means:
Transnational Forcible Abduction - a sovereign may
simply kidnap the culprit seeking refuge in a foreign
land, an action invariably against the law of the
foreign jurisdiction.
Informal Surrender - Without process, the foreign
jurisdiction may simply grant permission or silently
accede to the requesting State's demand for the
surrender of the fugitive OR it may affirmatively
move to deport or expel him or her.
Lures - tricked by subterfuge, the fugitive may be
lured from an extradition refuge to the territory of
the pursuing State, or to another country permitting
extradition to the pursuing State.
Under the Ker-Frisbie Doctrine, criminal defendants
may be tried regardless of whether their presence
before the court was secured from outside its
territorial jurisdiction by means other than pursuant
to a valid extradition.
In other words, if the apprehension of the accused
occurs outside the States territory, its validity is
immaterial to a domestic court of the State.
United States v Alvarez Machain
1. Humberto Alvares Machain was a citizen and
resident of Mexico.
2. He was indicted for participating in the kidnap
and murder of a USDEA special agent.
3. The DEA believes that Machain, a doctor,
participated in their murder so that others may
torture and interrogate him
4. On Apr. 2 1990, DEA agents kidnapped
Machain from his medical office in Mexico and
flown by private plane to Texas, where he was
arrested.
5. Machain moved to dismiss the indictment,
claiming that the Court lacked jurisdiction to try
 him because he was abducted in violation of the
extradition treaty between the US and Mexico.
Machain particularly raised Article 9 of the
Extradition Treaty between US and Mexico.
- Only the Executive authority of the
requested party has the power to deliver a
national if, in his discretion, it is proper.
- If extradition is not granted, the requested
party shall submit the case to its competent
authorities for prosecution, provided that
Party has jurisdiction over the offense.
Stated otherwise, only Mexico has the right to
initiate prosecution proceedings against
Machain if the latter is not extradited.
Issue: Whether or not the US violated its extradition
treaty with Mexico; whether or not the US court has
jurisdiction to try Machain.
Ruling: The treaty says nothing about the obligations
of the US and Mexico to refrain from forcible
abductions, or the consequences under the treaty if
such abduction occurs. Article 9 does not purport to
specify the only way in which one country may gain
custody of a national of the other country for the
purpose of prosecution.
General practice under the Treaty fails to show that
abductions outside of the Treaty constitute a
violation of the Treaty, as shown in the ruling of
Ker. The Extradition Treaty only prohibits gaining
the defendant's presence by means other than those
set forth in the Treaty when the nation from which
the defendant was abducted protests.
Mexico has indeed protested the abduction of
respondent thru diplomatic notes. However, the
decision of whether the respondent should be
returned to Mexico, as a matter outside of the treaty,
is a matter for the executive branch.
Therefore, respondent's abduction was not in
violation of the Extradition Treaty.
Aims or Purpose of Extradition
a. Criminal prosecution
b. Execution of a prison sentence
Standard Treaty Limitations on Extradition
a. Prohibition of discrimination - extradition may
not be granted if the prosecution be based on race,
nationality, or political opinion
b. Lack of probable cause - request for extradition
must include sufficient prima facie evidence of guilt
attributable to the person to be extradited
c. Rule of specialty - ensures that a fugitive
surrendered for one offense is not tried for other
crimes
d. Exceptions of political and military offense -
extradition not granted for political offenses or when
it relates to a military offense not punishable under
non-military penal legislation
Exception to (d.) - ATTENTAT CLAUSE
- An attentat clause is an exception to the political
crimes exception in extradition treaties; provides that
the assassination, murder, attempt on the life of, or
other willful crimes against the person of the Head
of State shall not be regarded a political crime.
Query: Is extradition a criminal proceeding?
NO, but it bears the markings of one as:
a. It entails deprivation of liberty on the extraditee.
b. The means employed to attain the purpose of
extradition is also the same machinery as criminal
law.
Being sui generis, it is neither a trial to determine the
guilt of the extraditee nor a full blown civil action. It
is merely administrative in character. The object is to
prevent the escape a person accused or convicted of
a crime and to secure his return to the State from
which he fled.
Query: May treaties be challenged to have violated Nachura, A. E. (2014). Outliner Reviewer in
the ex post facto laws of the Philippines? Political Law. VJ Graphic Arts, Inc.
Sarmiento, R. A. (2009 Revised Edition). Public
NO. The concept of ex post facto laws is limited
International Law - Bar Reviewer. Rex
only to penal and criminal statutes. A treaty is
Book Store, Inc.
neither a piece of criminal legislation nor a criminal
procedural statute. It merely provides for the
extradition of persons wanted for prosecution of an
offense of a crime already consummated at the time
the treaty was ratified.

Bail in Extradition Cases

Bail may be granted to a possible extraditee on the

following grounds:

a. He will not be a flight risk or a danger to the

community
b. There exists special, humanitarian, and
compelling circumstances.

"If bail can be granted in deportation cases, we see

no justification why it should not also be allowed in
extradition cases." (Government of Hongkong v
Olalia)

References:

Abdulrahim, D. W. (2014). Dr. Walid Abdulrahim

Professor of Law. Retrieved from
sites.google.com/site/walidabdulrahim/home/:
https://sites.google.com/site/walidabdulrahi
m/home/my-studies-in-english/7-state-
jurisdiction
Bernas, J. G. (2009 Edition). Introduction to Public
International Law. REX Book Store.
Gunaratne, R. (2008). Public International Law.
Retrieved from
ruwanthikagunaratne.wordpress.com:
https://ruwanthikagunaratne.wordpress.com/
tag/jurisdiction/
International Crimes Database. (2013). Retrieved
from internationalcrimesdatabase.org:
http://www.internationalcrimesdatabase.org/
Case/192/Eichmann/