Talk:Public International Law/Jurisdiction

Review: 14 June 2023
Dear Sué & Max,

This promises to become a great chapter and I only left some minor comments in the text.

Best, Raffaela

--Raffaela Kunz (discuss • contribs) 14:59, 14 June 2023 (UTC)

Review: 1 November 2021
-- In Part A's discussion of the definition of jurisdiction, my suggestion is to make sure to also engage with the question of what jurisdiction is on a practical level. For example, I believe that in the ILC's work on immunity of state officials from foreign criminal jurisdiction, the ILC was not able to arrive at a concrete definition of what counts as an exercise of jurisdiction, despite a fair amount of discussion. (i.e. Does surveillance count as an exercise of jurisdiction? Or investigating a person? Or taking a person in for questioning? etc. etc.). Other areas where it becomes confusing what jurisdiction is or isn't concern unilateral sanctions and taxation (and a host of other issues, as I'm sure you're aware), but perhaps these are too complicated to get into in a textbook.

-- I believe that it is important to clearly distinguish between criminal and civil jurisdiction, and their corresponding rules (or lack thereof) in international law. For example, in Part D, distinction along these lines would be helpful. Indeed, it seems to me that the question of where private international law "ends" and the public international law bases of jurisdiction "begins" remains very unclear, particularly in the civil context.

-- Forgive me because I am not nearly as well-versed in this area of the law, but I'm not sure I understand what the principle of distinction is in the context of Part A. In the context of this textbook, I wonder if some of the more nuanced points like this (which are currently mentioned as headline issues) should instead be subsumed into the discussion under the broader headings.

-- In the context of Part C, it may be worth considering whether a "nexus" is always required, as indeed there are debates (as I know you are aware). For example, governments often make agreements to transfer jurisdiction even absent such a nexus, or offer written or verbal consent allowing another State to exercise jurisdiction over their nationals. The controversial example of jurisdiction over vessels on the high seas comes to mind. Home States have on occasion consented to a foreign state's jurisdiction over nationals found either on vessels flying the home State's flag, or stateless vessels (see, e.g., enforcement of drug trafficking crimes).

-- Along similar lines, when discussing the concept of "nexus," it may be worth considering debates about whether notions of due process under human rights law require such a nexus, or whether such a nexus derives from another principle (or whether it remains unclear).

-- The list in Part D.II might need to include a section on treaties granting States additional jurisdictional bases, unless this will be covered elsewhere (see, e.g. hostages convention and other suppression conventions). Furthermore, you may wish to briefly mention issues where domestic jurisdiction is said to be "transferred" to international tribunals by virtue of treaties (see, e.g., Rome Statute and debates about head of state immunity in the Al Bashir case).

--Somewhere along the way it would of course be helpful to give an assessment of the relevance today of the Lotus case, and critiques of it. From what I understand, there may be some shift towards the requirement to affirmatively justify exercises of jurisdiction based on one of the principles you mention, not simply point to the lack of a principle prohibiting the exercise of jurisdiction. Accordingly, perhaps in your discussion of "sovereignty" in Part A you may wish to consider the extent to which that notion (or the principle of non-intervention) limits domestic exercises of jurisdiction (maybe this is what you are already planning).

--You may also wish to consider the extent to which the rules on jurisdiction are influenced by discretionary decisions on the part of judges / courts declining jurisdiction, for example, pursuant to doctrines like forum non conveniens.

These points are all just meant for the sake of brainstorming and discussion. I know that everything cannot possibly find its way into the chapter. In any event, the chapter sounds really fascinating and I'm very much looking forward to reading it! The outline shows a lot of great work and thinking.

Please don't hesitate to be in touch with any questions.

All best, Beatrice