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Part VII State Jurisdiction, 21 Jurisdictional Competence

From: Brownlie's Principles of Public International Law (8th Edition)

James R Crawford

A newer edition of Brownlie's Principles of Public International Law is available. Latest edition (9 ed.)
Next Edition: 9th Edition Latest edition (9 ed.)

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved. Subscriber: null; date: 10 December 2022

Subject(s):
Jurisdiction of states, prescriptive — Jurisdiction of states, territoriality principle — Jurisdiction of states, nationality principle — Jurisdiction of states, passive personality principle — Jurisdiction of states, protective principle — Jurisdiction of states, universality principle

(p. 456) 21  Jurisdictional Competence

1.  Overview1

Jurisdiction is an aspect of sovereignty: it refers to a state’s competence under international law to regulate the conduct of natural and juridical persons. The notion of regulation includes the activity of all branches of government: legislative, executive, and judicial. Although the state is conceived in international law as a single unit, nonetheless for the purposes of analysing jurisdiction and its limits some distinctions are usually made. On the one hand is the power to make laws, decisions or rules (prescriptive jurisdiction); on the other is the power to take executive or judicial action in pursuance of or consequent on the making of decisions or rules (respectively enforcement or adjudicative jurisdiction).2

The starting-point in this part of the law is the presumption that jurisdiction (in all its forms) is territorial, and may not be exercised extra-territorially without some specific basis in international law. However, the territorial theory has been refined in (p. 457) the light of experience and what amounts to extra-territorial jurisdiction is to some extent a matter of appreciation. If there is a cardinal principle emerging, it is that of genuine connection between the subject-matter of jurisdiction and the territorial base or reasonable interests of the state in question.3

It should be stressed that this sufficiency of grounds for jurisdiction is normally considered relative to the rights of other states.4 There is no assumption (even in criminal cases) that individuals or corporations will be regulated only once, and situations of multiple jurisdictional competence occur frequently. In such situations there is no ‘natural’ regulator and the consequences of multiple laws applying to the same transaction are managed rather than avoided—double taxation being a case in point.5

2.  Prescriptive Jurisdiction Over Crimes6

(A)  General Bases of Jurisdiction

The discussion which follows concerns the general principles for determining whether a state may prescribe acts as criminal under municipal law. The question emerged as a distinct one only after about 1870,7 and the appearance of clear principles has been retarded by the prominence in the sources of municipal decisions, which exhibit empiricism and adherence to national policies. The early structure of prescriptive criminal jurisdiction was provided by the Permanent Court in the SS Lotus. That case concerned a collision on the high seas between a French steamer and a Turkish collier in which the latter sank and Turkish crew members and passengers lost their lives. The French steamer having put into port in Turkey for repairs, the officers of the watch were tried and convicted of involuntary manslaughter. On the question of jurisdiction in general the Permanent Court said:

This passage has been much criticized.9 Its emphasis on plenary state discretion is contradicted by the approach of the Court in Anglo-Norwegian Fisheries10 and Nottebohm,11 which concerned comparable competences of states, respectively, to delimit the territorial sea and to confer nationality on individuals: we may call them regulatory competences. Following Arrest Warrant,12 there are hints that it has been reversed: if a state wishes to project its prescriptive jurisdiction extra-territorially, it must find a recognized basis in international law for doing so. This shift in focus is, however, largely cosmetic, and in general the Permanent Court’s statement that ‘all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty’ remains correct.13

(i)  The territorial principle

The principle that the courts of the place where the crime is committed may exercise jurisdiction is universally recognized. It is an application of the essential territoriality of sovereignty, the sum of legal competences which a state has. In the case of crime, the principle has a number of practical advantages, including the convenience of the forum and the presumed involvement of the interests of the state where the crime was committed. The territorial principle has been given an extensive application. In the first place, there is subjective territoriality, which creates jurisdiction over crimes commenced within the state even if completed or consummated abroad.14 Generally accepted and often applied is the objective territorial principle, according to which jurisdiction is founded when any essential constituent element of a crime is consummated on the forum state’s territory. The classic illustration is the firing of a gun across a border causing death on the territory of the forum, but the principle can be employed (p. 459) to found jurisdiction in cases of conspiracy,15 violation of antitrust16 and immigration laws17 by activity abroad, and in many other fields of policy.18 The effect of the two principles combined is that whenever the constituent elements of a crime occur across an interstate boundary both states have jurisdiction.

The objective principle received general support in the Lotus; what was controversial was its application to collisions in international waters. France contended that the flag state alone had jurisdiction over acts performed on board on the high seas. Turkey argued, inter alia, that vessels on the high seas were to be considered part of the territory of the flag state. By the casting vote of the President, the Court decided that Turkey had not acted in conflict with the principles of international law by exercising criminal jurisdiction. The basis of the majority view (with which Judge Moore concurred) was the principle of objective territorial jurisdiction. The principle was familiar but to apply it the Court had to assimilate the Turkish vessel to Turkish national territory.19 This crucial step did not attract a majority, and is out of line with subsequent developments.

(ii)  The nationality principle

Nationality, as a mark of allegiance and an aspect of sovereignty, is also generally recognized as a basis for jurisdiction over extra-territorial acts.20 The application of the principle may be extended by reliance on residence21 and other connections as (p. 460) evidence of allegiance owed by aliens,22 and also by ignoring changes of nationality.23 For example the UK legislature has conferred jurisdiction on its courts in respect of, inter alia, treason,24 murder,25 bigamy,26 soccer hooliganism,27 child sexual abuse,28 and breaches of the Official Secrets Acts29 wherever committed by British nationals or residents.

The territorial and nationality principles (as well as the increasing incidence of dual nationality) create parallel jurisdictions and possible double jeopardy, and many states place limitations on the nationality principle,30 for example, by confining it to serious offences.31 But such limitations are not required by international law.32 Nationality provides the primary criterion for criminal acts in locations such as Antarctica, where the ‘territorial’ criterion is not generally recognized.33

For nationality jurisdiction, it is often asserted that the person over whom the state purports to exercise its prescriptive jurisdiction must have been a national at the time of the offence. Otherwise, it is argued, a violation of the principle of nullum crimen sinelege could occur.34 However, state practice is varied, with some states providing for nationality jurisdiction over persons who subsequently acquire their nationality.35

(p. 461) (iii)  The passive personality principle36

If the nationality head of jurisdiction may be characterized as one of ‘active personality’, the reverse of the coin is ‘passive personality’. According to this principle aliens may be punished for acts abroad harmful to nationals of the forum. This is considerably more controversial, as a general principle, than the territorial and nationality principles. In Cutting a Mexican court exercised jurisdiction in respect of the publication by a US citizen in a Texas newspaper of matter defamatory of a Mexican citizen. The court applied the passive nationality principle among others. This led to diplomatic protests from the US, although the outcome was inconclusive.37

In the Lotus, the Turkish penal code provided for punishment of acts abroad by foreigners against Turkish nationals; in effect it was a comprehensive exercise of passive personality jurisdiction. The Court declined to assess the law as such. The question was whether the specific factual situation fell within Turkish jurisdiction or not;38 it held that it did, invoking the protective principle.39 Judge Moore, in a separate opinion, agreed with the majority as to the outcome but expressly rejected the protective principle.40

The passive personality principle has been much criticized. One early complaint was that it served no wider goal of criminal justice: it did not correspond to a domestic conceptualization of jurisdiction, would not close an enforcement gap and lacked any social aim of repression.41 There is also concern that it could expose individuals to a large number of jurisdictions.42 Such objections have not, however, prevented the development of something approaching a consensus on the use of passive personality in certain cases, oft en linked to international terrorism.43 Moreover, aut dedere aut iudicare provisions in most criminal law treaties authorize the use of passive personality jurisdiction as between states parties.44

(p. 462) (iv)  The protective or security principle45

Nearly all states assume jurisdiction over aliens for acts done abroad which affect the internal or external security or other key interests of the state, a concept which takes in a variety of offences not necessarily confined to political acts.46 Currency, immigration, and economic offences are frequently punished. The UK and the US allow significant exceptions to the doctrine of territoriality, though without express reliance upon the protective principle. Thus, courts of the former have punished aliens for acts on the high seas concerning illegal immigration,47 and perhaps considerations of security helped the House of Lords in Joyce v Director of Public Prosecutions48 to the view that an alien who left the country in possession of a British passport owed allegiance and was accordingly guilty of treason when he subsequently broadcast propaganda for Germany in wartime. Insofar as the protective principle rests on the protection of concrete interests, it is sensible enough, but the interpretation of the concept of ‘protection’ may vary widely. For example, the protective principle was invoked in the Eichmann case in relation to the Jewish victims of the accused,49 despite the fact that Israel was not a state when the offences in question occurred.50

The categories of what may be considered a vital interest for the purposes of protective jurisdiction are not closed,51 and no criteria exist for determining such interests beyond a vague sense of gravity. Ultimately, the identification of exorbitant jurisdiction may be a matter of knowing it when one sees it.52

(v)  The effects doctrine

In addition, it has been suggested that there exists a further head of prescriptive jurisdiction, the so-called ‘effects doctrine’.53 This may gain traction where an (p. 463) extra-territorial offence causes some harmful effect in the prescribing state, without actually meeting the criteria of territorial jurisdiction or representing an interest sufficiently vital to the internal or external security of the state in question to justify invoking the protective principle.

While controversial, the doctrine is not objectionable in all cases.54 It was at least acknowledged by the majority in the Lotus55 and by certain members of the International Court in Arrest Warrant.56 Today, ‘effects’ or ‘impact’ jurisdiction is practised largely by the US and, with greater qualifications, by the EU.57 In Alcoa, for example, Judge Learned Hand stated that it was ‘settled law’ that ‘any state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders which has consequences within its borders which the state reprehends’,58 a position since followed extensively in US antitrust jurisprudence.59

Since Alcoa, the effects doctrine and its expansion have, in many cases, been driven by the US approach to jurisdiction. Whereas previously this resembled closely the conception of various heads of prescriptive jurisdiction, it has now changed its perspective; it is possible to speak of antitrust jurisdiction, tort jurisdiction, and taxation jurisdiction, with some of these having a broader extra-territorial reach than others. This has the potential to muddy the waters, resulting in the uncertain position of the effects doctrine within international law as either a head of prescription in its own right, or a subject-driven application of the territorial or protective principles with unusual reach.60 These policies have provoked a strong reaction from a number of foreign governments. The UK61 and other states have enacted legislation to provide defensive measures against American policy. Similar episodes have arisen as a result of the application of the US Export Administration Act in particular, in the face of US measures directed against non-American corporations involved in contracts relating to the construction of the West Siberian pipeline.62 Both the European Community63 and the UK64 protested and asserted the illegality of the actions of US authorities (p. 464) intended to prevent the re-export of machinery of American origin and the supply of products derived from American data. But it must be noted that competition legislation in several European states is based on principles similar to those adopted in the US.65 Moreover, the European Court of Justice has applied a principle similar to the American ‘effects doctrine’ in respect of company subsidiaries66 and the Advocate-General espoused this view in his Opinion in the Woodpulp Cases.67 In any event US legislation has continued to provoke protests from the EU and from individual states.68 This legislation includes the Cuban Democracy Act (1992),69 the D’Amato-Kennedy Act (1996),70 and the Helms-Burton Act (1996).71

(B)  Jurisdiction Over Ships and Aircraft

Jurisdiction over ships on the high seas or exercising the right of innocent passage through the territorial sea or EEZ is discussed in chapters 11 and 13. The question here is the relation between the territorial sovereign and the flag state in the matter of jurisdiction over private vessels in ports or other internal waters.72 The view that a ship is a floating part of state territory has long fallen into disrepute, but the special character of the ‘internal economy’ of ships is still recognized, the rule being that the law of the flag depends on the nationality of the ship73 and that the flag state has regulatory responsibility for and jurisdiction over the ship.74 But when a foreign ship enters a port, except perhaps as a consequence of distress,75 temporary allegiance is owed to the territorial sovereign and concurrent jurisdiction arises.76

(p. 465) There has been debate on the limits of the local criminal jurisdiction. In principle, there are no limits provided action is taken with regard only to breaches of local law and not to breaches of rules set by the law of the flag state.77 During the preparatory work of the Hague Codification Conference of 1930, the UK stated its opinion on the issues as follows:

[T]he State is entitled to exercise jurisdiction over a foreign merchant vessel lying in its ports and over persons and goods on board…In criminal matters it is not usual for the authorities to intervene and enforce the local jurisdiction, unless their assistance is invoked by, or on behalf of the local representative of the flag State, or those in control of the ship, or a person directly concerned, or unless the peace or good order of the port is likely to be affected. In every case it is for the authorities of the State to judge whether or not to intervene.78

On this view derogation from the exercise of local criminal jurisdiction is a matter of comity and discretion, but may be invoked in practice where: (a) the act in question disturbs the peace and good order of the port; (b) assistance is requested by the captain or a representative of the flag state of the ship; or (c) a non-crew member is involved.79

Quite aside from matters relating to the internal economy of ships, port state jurisdiction is increasingly recognized as a remedy for the failure of flag states to exercise effective jurisdiction and control of their ships. The jurisdiction is no longer used solely to enforce local questions of civil and criminal law, but is actively playing a role in the international regulatory sphere. This is especially notable in the context of maritime pollution, with Article 218 of the UN Convention on the Law of the Sea (UNCLOS) granting port states the right to institute proceedings or impose monetary penalties for illegal discharges that occur outside of their territorial sea and EEZ. Port state jurisdiction is also used as a response to illegal and unregulated fishing on the high seas. Under Article 23 of the Straddling Stocks Agreement,80 a port state has the right (and indeed duty) to take certain steps to combat illegal fishing, revolving centrally around the inspection of documents, fishing gear, and the catch itself. This provision is not the equivalent of UNCLOS Article 218 optimized for use in relation to fishing, but it does underwrite the use of existing port state jurisdiction in a certain fashion. The same may be said of Article 15 of the UNESCO Convention on the Protection of Underwater Cultural Heritage,81 which requires states parties to prohibit the use of their ports in support (p. 466) of any activity directed at underwater cultural heritage which is not in conformity with the Convention.

Aircraft initially posed some problems for the jurisdictional rules of domestic and international law, and crimes on board civil aircraft over the high seas or in the airspace of foreign states were the subject of considerable variations of opinion.82 In the UK, for example, the extra-territorial commission of common law offences such as murder and theft is punishable,83 but many provisions, apart from aeronautical regulations made under the Civil Aviation Act 1949, have no application to crimes on aircraft abroad or over the high seas.84 The practice of states on the relation between the national law of the aircraft and the law of any foreign territory overflown was not very coherent; however, work sponsored by the International Civil Aviation Organization produced the Convention on Offences and Certain Other Acts Committed on Board Aircraft (Tokyo Convention),85 which in Article 3(1) provides that the state of registration of the aircraft is competent to exercise jurisdiction over offences and acts committed on board and further requires the state to take necessary measures to claim jurisdiction over such acts (Article 3(2)). Article 3(3) provides that criminal jurisdiction exercised in accordance with national law is not excluded.

In addition, Article 4 of the Tokyo Convention prohibits states other than the state of registration interfering with an aircraft in flight, save where an offence committed on board: (a) has effect in the territory of the intercepting state; (b) has been committed by or against a national or permanent resident of such state; (c) is against the security of the state; or (d) consists of a breach of any rules or regulations relating to the flight of aircraft .

Aircraft hijacking has prompted multilateral conventions creating duties for states to punish the seizure of aircraft in flight and to exercise jurisdiction in specified conditions, for example, when the offence is committed on board an aircraft registered in the contracting state.86

(p. 467) (C)  Universal Jurisdiction87

(i)  Defining universal jurisdiction

Defined simply, universal jurisdiction amounts to the assertion of criminal jurisdiction by a state in the absence of any other generally recognized head of prescriptive jurisdiction.88 In O’Keefe’s words:

universal jurisdiction can be defined as prescriptive jurisdiction over offences committed abroad by persons who, at the time of the commission, are non-resident aliens, where such offences are not deemed to constitute threats to the fundamental interests of the prescribing state or, in appropriate cases, to give rise to effects within its territory.89

A considerable number of states have adopted, usually with limitations, a principle allowing jurisdiction over acts of non-nationals where the circumstances, including the nature of the crime, justify repression as a matter of international public policy. In this sense, universal jurisdiction is defined by the character of the crime concerned, rather than by the presence of some kind of nexus to the prescribing state. The prosecution of crimes under customary international law is often expressed as an acceptance of the principle of universality,90 but this is not strictly correct, since what is punished is the breach of international law. The case is thus different from the punishment, under national law, of acts which international law permits and even requires all states to punish, but does not itself declare criminal.

(ii)  The content of universal jurisdiction

How then to define the content of universal jurisdiction? As alluded, some commentators have argued for its extension on moral or public policy grounds, and that universal jurisdiction accordingly applies to certain crimes under customary international law the commission of which is generally accepted ‘as an attack upon the international order’.91 As the District Court of Jerusalem in the Eichmann case remarked:

The abhorrent crimes defined in [the Israeli Law] are not crimes under Israeli law alone. These crimes, which struck at the whole of mankind and shocked the conscience of nations, are grave offences against the law of nations itself (delicta juris gentium). Therefore, so far from international law negating or limiting the jurisdiction of countries with respect to such (p. 468) crimes, international law is, in the absence of an International Court, in need of the judicial and legislative organs of every country to give effect to its criminal interdictions and bring the criminals to trial. The jurisdiction to try crimes under international law is universal.92

The original crime to which universal jurisdiction attached was that of piracy iure gentium,93 which was in turn followed by slavery.94 In modern times, it has been extended to the so-called ‘core crimes’ of customary international law,95 being genocide,96 crimes against humanity and breaches of the laws of war, and especially of the Hague Convention of 1907 and grave breaches of the Geneva Conventions of 1949.97 Torture within the meaning of the Torture Convention 1984 is also likely to be subject to universal jurisdiction.98

Beyond such clear cases, public policy is less useful as a criterion. There are no examples of prosecutions for the crime of aggression under universal jurisdiction, but given the relatively recent formulation of an agreed definition of the crime in international law99 this is not surprising.100 At the same time, however, the intense political implications of the charge of aggression may also explain the unwillingness of states to attempt prosecutions on the basis of universal jurisdiction. For now, therefore, it is questionable as to whether aggression can be considered a crime of universal jurisdiction. The better view may be that it is not.

Thus, notwithstanding the fact that the ‘moral’ justification for universal jurisdiction has dominated discussion of this subject,101 it does not explain the reality of universal jurisdiction, which is oft en influenced—sometimes decisively—by political considerations. It seems that attempting to derive a coherent theory for the extension of universal jurisdiction with respect to some crimes but not others may be to (p. 469) overstate the situation: rather, it may simply be that such jurisdiction is extended on a case-by-case basis in customary international law, with the notion of an attack upon the international order being a necessary but not sufficient condition.

(iii)  Universal jurisdiction in absentia?

The most substantial consideration of universal jurisdiction by an international court or tribunal occurred in Arrest Warrant, even though the discussion was obiter (the Court felt it could address immunity without deciding upon jurisdiction).102 The opinions of those judges who did consider universal jurisdiction reveal a deeply divided court. Four judges (President Guillaume, Judges Ranjeva, Rezek, and Judge ad hoc Bula-Bula) were opposed to the use of the jurisdiction, whereas six (Judge Koroma, Judges Higgins, Kooijmans, Buergenthal in their joint separate opinion, Judge al-Khasawneh (impliedly), and Judge ad hoc van den Wyngaert) supported its application by Belgium.103

On examination, however, of those judges who opposed the use of universal jurisdiction by Belgium, only President Guillaume104 and Judge Rezek105 disagreed with a concept of universal jurisdiction in general. Judge Ranjeva and Judge ad hoc Bula-Bula criticized only its use in absentia, that is, where the prescribing state did not have custody of the accused.106

Although the notion of universal jurisdiction in absentia is not unknown in academic literature prior to the Arrest Warrant case,107 it is not compelling. Universal jurisdiction is a manifestation of a state’s jurisdiction to prescribe. The question whether jurisdiction is exercised in personam or in absentia is a manifestation of a state’s jurisdiction to enforce.108 In the context of Arrest Warrant, the Belgian law on war crimes and the issue of an arrest warrant in support of that law were separate acts. To speak of universal jurisdiction in absentia is to conflate prescriptive and enforcement jurisdiction.109

(iv)  Treaty-based quasi-universal jurisdiction110

Another, more restricted, form of quasi-universal jurisdiction arises from sui generis treaty regimes incorporating penal characteristics. These regimes have for the most (p. 470) part been developed in order to respond to particular behaviours viewed as undesirable; they require states parties to exercise mandatory prescriptive jurisdiction over certain individuals within their territories, independent of any ordinary nexus. They are frequently characterized by the obligation of aut dedere aut iudicare, which will compel a state party to either try the accused or extradite to a state that is willing to do so.111

An example112 arises in the context of the Convention for the Suppression of Unlawful Seizure of Aircraft (Hague Convention).113 This provides in Article 4(2) that:

Each Contracting State shall likewise take such measures as may be necessary to establish its jurisdiction over the offence in the case where the alleged offender is present in its territory and it does not extradite him pursuant to Article 8 to any of the States mentioned in paragraph 1 of this Article.

This formula has been applied, more or less identically, in a considerable number of international conventions.114 Early examples include the aut dedere aut iudicare obligations which appeared in the Geneva Conventions in 1949.115 Chief amongst the more recent treaties are the 12 ‘sectoral’ anti-terrorism agreements which were developed (p. 471) when it became clear that meaningful agreement on a generic definition of ‘terrorism’ was unreachable.116

To describe the jurisdictional regime established by these treaties as ‘universal’ is a misnomer.117 As Ryngaert notes:

The operation of the aut dedere requirement is indeed limited to States Parties, which pool their sovereignty and explicitly authorize each other to exercise jurisdiction over crimes committed by their nationals or on their territory.118

That, however, has not prevented certain states from insisting on the application of sui generis bases of jurisdiction to nationals of non-states parties to the treaties in question. The US is notable in this regard, often exercising jurisdiction over suspected terrorists who are nationals of states not party to the relevant sectoral agreements.119 In Yunis, for example, a Lebanese national was prosecuted with respect to the hijacking of Royal Jordanian Airlines Flight 402 from Beirut to Amman. The plane carried several American nationals, but was registered in Jordan, flew the Jordanian flag and never landed on American soil or flew through American airspace. The Court found that it had universal jurisdiction to prosecute with respect to the act of hijacking and the taking of hostages by the accused. Although jurisdiction was grounded on the fact that Lebanon was a state party to the Hague and Montreal Conventions, the Court further held that jurisdiction was also furnished by the provisions of the Hostage Taking Convention. This was despite the fact that Lebanon and Jordan were not parties to that treaty.120

3.  Civil Prescriptive Jurisdiction

There are different views as to the law concerning civil jurisdiction. On one view, exorbitant assertions of civil jurisdiction could lead to international responsibility. Further, as civil jurisdiction is ultimately reinforced by criminal sanctions through contempt of court, there is in principle no great difference between the problems created by assertion of civil and criminal jurisdiction over aliens.121 In particular, antitrust (p. 472) legislation (the source of many of the difficulties in practice) involves a process which, though formally ‘civil’, is in substance coercive and penal, as is the field of securities regulation.122 On another view, there is little by way of limitation on a state’s exercise of civil jurisdiction in what are effectively private law matters; different states assert jurisdiction on different grounds, but deference to foreign law through conflicts rules mitigates any exorbitant elements.

(A)  The Basis of Civil Jurisdiction Indifferent Legal Traditions

Notwithstanding broad similarities, the different legal traditions conceive of the civil jurisdiction to prescribe in different ways. This division is particularly apparent when considering the willingness of municipal courts to exercise jurisdiction over a foreign party as an actualization of prescriptive jurisdiction.

In order to satisfy international law standards in regard to the treatment of aliens a state must in normal circumstances maintain a system of courts empowered to decide civil cases and, in doing so, be prepared to apply private international law where appropriate in cases containing a foreign element.123 Municipal courts may be reluctant to assume jurisdiction in cases concerning a foreign element, adhering to the territorial principle conditioned by the situs of the facts in issue, and supplemented by criteria relating to the concepts of allegiance or domicile and doctrines of submission to the jurisdiction (including tacit submission on the basis of ownership of property in the forum state).124

As a general rule, the common law systems will assert jurisdiction over a foreign defendant who can be served with originating process.125 Under the most basic formulation, a writ may be served whenever the defendant sets foot126 or establishes a commercial presence127 in the jurisdiction, no matter how temporarily. Where the defendant has no such presence, a writ may nonetheless be served outside of the jurisdiction in certain cases.128 Though civil lawyers complain of the perceived exorbitance (p. 473) of the service rule,129 common lawyers point out that the defendant may challenge the exercise of the jurisdiction on the basis that the appropriate forum for the hearing of the dispute is elsewhere.130

Some common law jurisdictions have extended the concept of jurisdiction by service further still. In the US, ‘minimum [territorial] contacts’131 will suffice for the purpose of finding jurisdiction over the defendant, a term which has been subject to liberal interpretation by the courts.132 For example, the mere presence of a subsidiary of a foreign corporation in the US may provide the necessary minimum contact for the parent corporation.133

In contrast, the civil law approach to the exercise of jurisdiction is predicated on the principle that, where possible, the defendant ought to be sued in its domicile. This may be seen in EC Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels 1 Regulation),134 Article 2 of which provides that ‘[s]ubject to this Regulation, persons domiciled in a Member State [of the EU] shall, whatever their nationality, be sued in the courts of that Member State’.135 The Regulation, however, provides alternative bases of jurisdiction that are not so rigorously territorial where the defendant is already domiciled in the EU, including, inter alia, the locus delicti in cases of tort (Article 5(3)), in cases of contract, the place of performance of the obligation which has been breached (Article 5(1)(a)), the place of delivery of goods or performance of services (Article 5(1)(b)) or, as regards commercial disputes arising out of the operations of a branch, agency or other establishment, the place in which the branch, agency or other establishment is situated (Article 5(5)).136

(p. 474) In a further significant difference with the common law, the notion of discretionary refusal of jurisdiction is anathema to the civil law. As a general rule, if properly seised, a court will be unable to decline jurisdiction unless expressly authorized to do so by the terms of the Regulation.137 For example, under Article 27, in the event of lis pendens, the court second seised must stay the proceedings before it in favour of the court first seised unless the latter determines that it lacks jurisdiction.138

Whilst this approach has the virtue of certainty and consistency, its rigidity may lead to unfortunate practical consequences. In Owusu,139 for example, a single English defendant and five Jamaican defendants were sued in the English courts with respect to an alleged tort taking place in Jamaica. Although the forum conveniens was clearly Jamaica, the mandatory wording of Article 2 and the English domicile of one of the defendants prevented the court from declining jurisdiction.

(B)  Jurisdiction and the Conflict of Laws140

Conflict of laws, also known as private international law, is concerned with issues of the jurisdiction of national courts, the municipal law applicable to disputes with foreign elements, and the cross-border enforcement of judgments. It is usually considered to be merely municipal law, and a bright line is drawn between its study and the study of public international law. If it must be considered international law, the argument runs, then it is international only in the sense that it involves competing and horizontal ‘inter-national’ claims.

According to Mills, the adoption of an international systemic perspective on the conflict of laws reveals an ‘essential confluence’ of public and private international law, sharing as they do similar intellectual progenitors.141 Nationality, for example, is the defining jurisdictional principle for civil legal systems. Article 15 of the French Civil Code provides that ‘French persons may be called before a court of France for obligations contracted by them in a foreign country, even with an alien’. Passive personality is also the focus of Article 14 of the French Civil Code, which permits a foreign person to be called before the French courts with respect to obligations entered into with a French national.

The influence of the territoriality principle in private international law is likewise pervasive, notably in common law systems where the presence of the defendant within the jurisdiction is sufficient to ground the court’s adjudicative power. This is rightly (p. 475) controversial, for under the public international law conception of territoriality, the act or thing which is the subject of adjudicative power must be done within the jurisdiction; the subsequent presence of the defendant will be insufficient. That said, this perceived overreach is reduced by the use of forum non conveniens to decline jurisdiction where another forum is better suited to hear the matter; in the US, consideration of ‘reasonableness’ may also come into play.142 Territoriality is also (less controversially) present in Article 22(1) of the Brussels 1 Regulation, which provides for the exclusive jurisdiction for certain courts, regardless of the defendant’s domicile, where the proceedings in question have as their object rights in rem in immovable property or tenancies in immovable property.

(C)  The Alien Tort Statute and Cognate Legislation143

The universality principle, as expressed in the Eichmann case, is most oft en associated with the prosecution of particularly heinous crimes. Only a few states assert universal civil jurisdiction, that is, prescriptive jurisdiction absent any minimal territorial or national nexus to the delict in question.144 The example par excellence is the United States’ Alien Tort Claims Act 1789, now codified as the Alien Tort Statute (ATS).145

The ATS provides in its relevant part that ‘[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States’. Apparently enacted for the purpose of providing a recourse in tort for acts of piracy or the violation of safe conduct or of the rights of ambassadors,146 the statute fell dormant for almost two centuries before gaining modern importance in Filartiga v Peña-Irala,147 where the Second Circuit Court of Appeals held that it was to be read as incorporating current customary international law protective of individual rights.

An actionable ATS violation will occur only where (a) the plaintiff is an alien, (b) the defendant148 is responsible for a tort, and (c) the tort in question violates international (p. 476) law.149 Not every violation of international law will, however, be considered actionable: the Supreme Court in Sosa v Alvarez-Machain, while falling short of articulating a coherent category, limited the scope of the statute to ‘norm[s] of an international character accepted by the civilized world’.150 In this sense, the ATS draws its legitimacy at least to some extent from the same well-spring as universal criminal jurisdiction over genocide, war crimes, and crimes against humanity.151

Perhaps because of its prescriptive and procedural limitations, the ATS has been the subject of surprisingly little opposition.152 Whilst European states may prefer criminal or administrative remedies for gross human rights violations, they do not seem resistant in principle to ‘universal’ tort jurisdiction of this kind, though they remain opposed to the perceived exorbitance of the US regime of civil jurisdiction in personam.153

(D)  Conclusion

Notwithstanding the prevailing understanding of a conceptual rift between public and private international law, the two share a certain theoretical underpinning. Although perhaps not recognized by practitioners, states are certainly taking action to unify their approaches to conflict of laws, and moreover, doing it through the conclusion of treaties, the tool of public international law. Aside from those regimes concluded on a regional basis,154 global international conventions have also emerged, notably the Hague Conventions on Private International Law and on International Civil Procedure.155

4.  The Separateness of the Grounds of Jurisdiction

(A)  The Relationship Between the Separate Grounds

The status of treaty-based crimes under international law involves special considerations and can be left on one side. The various principles held to justify jurisdiction over (p. 477) aliens are commonly listed as independent and cumulative,156 although some may be labelled ‘subsidiary’ to some others.157 However, it must be remembered that the ‘principles’ are in substance generalizations of a mass of national provisions which by and large do not reflect categories of jurisdiction specifically recognized by international law. It may be that each individual principle is only evidence of the reasonableness of the exercise of jurisdiction.158 The various principles often interweave in practice. Thus, the objective applications of the territorial principle and also the passive personality principle have strong similarities to the protective or security principle. Nationality and security may go together, or, in the case of the alien, factors such as residence may support an ad hoc notion of allegiance. These features of the practice have led some jurists to formulate a broad principle resting on some genuine or effective link between the crime and the state of the forum.159

(B)  Consequences of Excess of Prescriptive Jurisdiction160

(i)  The legal position

If enforcement action is taken in a case of exorbitant jurisdiction with consequent injury, an international wrong will presumably have been committed. The consequences of the mere passage of legislation asserting exorbitant jurisdiction remain an open question. The situation is clouded by the uncertain status of the statement in the Lotus that, in the absence of a rule in international law to the contrary, a state may do whatever it pleases;161 although the various separate opinions in the Arrest Warrant case may have signalled the reversal of this position,162 the reversal itself is inchoate, and it remains to be seen whether it represents merely a cosmetic shift in emphasis or something more substantive.163 In part, this is due to the fact that although vigorously (p. 478) criticized and perceived widely to be obsolete,164 the Lotus remains the only judgment of an international court to tackle directly this particular aspect of jurisdiction.165

(ii)  Practical consequences

As a practical matter, whilst states may protest the use of exorbitant prescriptive jurisdiction by others, unless the prescribing state attempts to enforce the jurisdiction claimed, it is unlikely that any substantive legal action will be taken. As O’Keefe notes, although the concepts of jurisdiction to prescribe and jurisdiction to enforce are logically independent, they are practically intertwined.166 At the same time, a prescriptive statement—even absent immediate enforcement action—is fundamentally a threat, which may compel foreign nationals to alter their behaviour.167 This may cause the other state to take its own action in the form of a ‘blocking statute’, being a law enacted in one jurisdiction to obstruct the local (extra-jurisdictional) application of a law enacted in another jurisdiction.168

5.  Enforcement Jurisdiction

(A)  The Basic Principle169

As with prescriptive jurisdiction, a state’s use of enforcement jurisdiction within its own territory is uncontroversial. By contrast, the unilateral and extra-territorial use of enforcement jurisdiction is impermissible. As the Permanent Court said in the Lotus:

[T]he first and foremost restriction imposed by international law upon a state is that—failing the exercise of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or a convention.170

(p. 479) The governing principle of enforcement jurisdiction is that a state cannot take measures on the territory of another state by way of enforcement of its laws without the consent of the latter.171 Persons may not be arrested, a summons may not be served, police or tax investigations may not be mounted, orders for production of documents may not be executed, on the territory of another state, except under the terms of a treaty or other consent given.172 One key example of such consent is a Status of Mission or Status of Forces Agreement (SOMA or SOFA), whereby one state consents to the presence of another’s troops on its territory and to related military jurisdiction.173

(B)  Enforcement with Respect to Extra-Territorial Activities

The principle of territoriality is not infringed just because a state takes action within its own borders with respect to acts done in another state. But the correctness of this position has not prevented controversy from arising. This is especially the case when considering the use by US courts of the ‘effects doctrine’ to promote certain prescriptive objectives in the field of economic regulation, especially antitrust law. US courts in, for example, Alcoa174 and Watchmakers of Switzerland,175 have taken the view that whenever activity abroad has consequences or effects within the US which are contrary to local legislation then the American courts may make orders requiring the disposition of patent rights and other property of foreign corporations, the reorganization of industry in another country, the production of documents, and so on. The American doctrine appears to be restricted to agreements abroad intended to have material effects within the US and actually having such effects.176 Such orders may be enforced by action within the US against individuals or property present within the territorial jurisdiction, and the policy adopted goes beyond the normal application of the objective territorial principle. US courts have, in the past, adopted a principle of the balancing of the various national interests involved, which, though unhelpfully vague, could result in some mitigation of the cruder aspects of the ‘effects doctrine’.177

(p. 480) The courts, the US government,178 and foreign governments in reacting to US measures assume that there are some limits to enforcement jurisdiction but there is no consensus on what those limits are.179 The UK view appears to be that a state ‘acts in excess of its own jurisdiction when its measures purport to regulate acts which are done outside its territorial jurisdiction by persons who are not its own nationals and which have no, or no substantial, effect within its territorial jurisdiction’.180 Jennings has stated the principle ‘that extra-territorial jurisdiction may not be exercised in such a way as to contradict the local law at the place where the alleged offence was committed’.181 In the case of corporations with complex structures and foreign-based subsidiaries, a principle of substantial or effective connection could be applied as a basis for jurisdic-tion.182 This approach would accord with the relevant notions of the conflict of laws, in particular, the ‘proper law’ of a transaction. The present position is probably this: a state has enforcement jurisdiction abroad only to the extent necessary to enforce its legislative jurisdiction. This latter rests upon the existing principles of jurisdiction and these, it has been suggested, are close to the principle of substantial connection.

(C)  Recognition and Enforcement Abroad

(i)  Criminal jurisdiction

In a criminal context, enforcement jurisdiction will ordinarily entail the pursuit and arrest of the accused, detention and trial, and the carrying out of any sentence.183

With respect to extra-territorial enforcement action leading to the capture of the accused, state consent can be given on ad hoc basis,184 but in circumstances where movement between two states is relatively regular and straightforward, bi- or multilateral agreements may be entered into in order to provide standing orders for enforcement jurisdiction between states. The most notable of these is the Schengen (p. 481) Convention185 between some members of the EU. Article 40(1) provides that where the officials of one contracting party are keeping under surveillance a person suspected of an extraditable offence, they may request that surveillance be continued in the territory of another contracting party by officials of that party. Article 40(2) further provides that in circumstances where, for particularly urgent reasons, authorization cannot be requested from the other contracting party, the officials carrying out the surveillance may be authorized to continue the surveillance in the territory of the other contracting party. On similar lines, Article 41 of the Convention permits the officials to engage in hot pursuit of a subject across state borders, where due to the urgency of the situation, the permission of the other contracting state cannot be obtained.

More generally, Article 39(1) provides that, subject to the requirements of municipal law, the police authorities of each contracting party undertake to assist each other for the purpose of detecting and preventing criminal offences, though this does not expressly mandate extra-territorial enforcement. Article 39 is supplemented in this respect by the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union.186 Treaties of mutual criminal assistance, like enforcement agreements, can also be concluded on a bilateral or multilateral basis.187

Unlike activities connected to the surveillance of the accused and his or her arrest, trial and incarceration is rarely carried out in an extra-territorial capacity, particularly in circumstances not linked to a SOMA or SOFA. But when the Libyan government refused to extradite those thought to be responsible for the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland, unless they were tried in a neutral country, the UK and the Netherlands entered into an agreement to permit a Scots court applying Scots criminal law to sit in a former US Air Force base in Zeist in order to try the accused.188

(p. 482) Provision is also made by treaty for the enforcement of foreign criminal judgments. Here, there is generally a divide between the civil and common law approaches to the subject, with the latter rejecting in principle the enforcement of the penal law of another state.189 Civil law systems are less averse to the concept, as witness the European Convention on the International Validity of Criminal Judgments.190

Apart from trial in absentia, an unsatisfactory procedure, states have to depend on the co-operation of the other states in order to obtain surrender of suspected criminals or convicted criminals who are, or have fled, abroad. Where this co-operation rests on a procedure of request and consent, regulated by certain general principles, the form of international judicial assistance is called extradition.191 Due to the profusion of extradition treaties, it is possible to speak of an international law of extradition, a term which does not imply the existence of custom, but of a significant corpus of conventional law exhibiting certain common elements. Such treaties are usually bilateral,192 but the European Convention on Extradition (ECE)193 is in effect between EU Member States (though it has been largely replaced by the European arrest warrant (EAW), which combines elements of arrest and extradition).194 The UN has also issued a Model Treaty on Extradition (UNMTE).195 Common conditions include double criminality (the act in question must be criminal under the laws of both the requesting and requested states),196 non-extradition for ‘political offences’,197 and the rule of speciality which prevents prosecution founded on a treaty-based extradition (p. 483) from proceeding on any basis other than that upon which the request was founded.198 Another significant limitation is the rule ne bis in idem, which precludes extradition of persons already tried for the same offence.199 Finally, many states reserve the right to refuse extradition owing to human rights concerns, for example, where extradition may mean that the accused is liable to torture,200 or the death penalty.201

Since the attacks by al-Qaeda on the US in 2001, there has been an increase in ‘informal’ extradition or rendition, though the practice is not new.202 If it takes place with the consent of the ‘sending’ state, there is no transgression of international law standards.203 If, however, there is no extradition of any kind—informal or otherwise— but the suspect is simply seized by the agents of the receiving state in the absence of any legal process, then there is clearly a breach of international law.204 This described generally as ‘extraordinary rendition’, has been practised by the US since 2001. Depending on the legal system in question, the attendant illegality may not prevent the trial of the suspect, an application of the maxim male captus bene detentus.205

(ii)  Civil and administrative jurisdiction

With respect to civil and administrative jurisdiction, extra-territorial enforcement revolves largely around the recognition and enforcement of judgments and orders abroad. This is one of the central preoccupations of private international law. In general, the field is parochial, with each state developing its own process and criteria for recognition and enforcement. The Brussels 1 Regulation seeks to unify the procedures (p. 484) for the recognition of judgments between EU member states.206 The judgment of a court of a member state is subject to automatic recognition (Article 33) and enforcement (Article 38) by the courts of other member states, with the onus on the defendant to contest enforcement according to a limited number of clearly defined exceptions.207

However, the need to approach the court of the jurisdiction where enforcement is sought is circumvented—in form if not in substance—when considering certain orders issued by common law courts (notably in England but also the US) which act in personam on the conscience of a party properly before the court to restrain its dealings with assets or processes outside the jurisdiction. The first of these, the so-called ‘freezing injunction’,208 acts in personam to prevent a defendant from moving, hiding or otherwise dissipating its assets so as to render itself judgment-proof.209 The injunction neither creates, transfers nor revokes property rights; it merely affects the capacity of the defendant to exercise them freely.210 But what the freezing injunction lacks in extra-territorial form, it makes up for in extra-territorial effect. The scope of the order has been expanded considerably. First, by virtue of its in personam operation, the injunction can be granted with respect to assets which are not within the jurisdiction of the court granting the order.211 Further, it can be given effect against foreign third parties, normally multinational banks with a branch within the jurisdiction granting the order.212 Finally, it can be granted in aid of foreign proceedings even where no proceedings are on foot before the court granting the order.213

The second example is the anti-suit injunction, which acts to restrain a party subject to the jurisdiction of the court from launching or continuing proceedings in a foreign court injurious to the defendant in those proceedings.214 Ordinarily, the claimant in the foreign proceedings must be already before the court,215 though the relief may be (p. 485) granted autonomously of any domestic proceedings where the subject-matter of the proceedings216 or the relationship between the parties217 is such as to give the granting court exclusive jurisdiction. Although the order is usually granted where the claimant in the foreign proceedings has commenced them in a manner which is somehow objectionable, it may also be granted where the foreign claimant has apparently acted without blame.218

The perceived exorbitance of the common law jurisdictions in respect of these orders is often criticized on the basis of ‘comity’.219 Comity arises from the horizontal arrangement of state jurisdictions in private international law and the field’s lack of a hierarchical system of norms. It plays the role of a somewhat uncertain umpire: as a concept, it is far from a binding norm, but it is more than mere courtesy exercised between state courts. The Supreme Court of Canada said in Morguard v De Savoye,220 citing the decision of the US Supreme Court in Hilton v Cuyot,221 that:

Comity is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its law.

Common lawyers have been anxious to justify the development of the freezing and anti-suit injunctions on the basis of comity.222 For this reason, as with the doctrine of forum non conveniens, whilst the jurisdiction to grant the remedy may be easily established, the claimant must nonetheless persuade the court to exercise its discretion. A substantial body of jurisprudence has built up around these remedies to guide the court in its use of discretion. But so far these efforts at justification have fallen on deaf European ears: the European Court of Justice has repeatedly disqualified such injunctive measures as inconsistent with full faith and credit as between EU member state courts, however dilatory or parochial the latter may be.223

(p. 486) 6.  A General View of the Law

To conclude, based on this review the following propositions may be suggested:

First, the exercise of civil jurisdiction in respect of aliens presents essentially the same problems as the exercise of criminal jurisdiction over them, though in practical terms there are differences, both procedurally and in the reactions that can be expected.

Secondly, the two generally recognized bases for prescriptive jurisdiction of all types are the territorial and nationality principles, but their application is complemented by the operation of other principles especially in certain fields. The use of the passive personality principle in cases of international terrorism appears to be accepted and, over time, opposition to the use of the effects doctrine by the US and EU in the pursuit of certain competition law objectives is diminishing. As a general rule, however, it remains true that if a state wishes to avoid international criticism over its exercise of extra-territorial jurisdiction, it is better to base the prescriptive elements on territoriality or nationality.

Thirdly, extra-territorial acts can lawfully be the object of prescriptive jurisdiction only if certain general principles are observed:

  1. (1)  There should be a real and not colourable connection between the subject-matter and the source of the jurisdiction (leaving aside cases of universal jurisdiction).224

  2. (2)  The principle of non-intervention in the territorial jurisdiction of other states should be observed, notably in an enforcement context.225

  3. (3)  Elements of accommodation, mutuality, and proportionality should be duly taken into account. Thus nationals resident abroad should not be constrained to violate the law of their place of residence.

  4. (4)  These basic principles do not apply or do not apply very helpfully to (a) certain cases of concurrent jurisdiction, and (b) crimes against international law within the ambit of universal jurisdiction. In these areas special rules have evolved. Special regimes also apply to the high seas, continental shelf, EEZ, outer space, and Antarctica.

  5. (5)  Jurisdiction is often concurrent and there is no hierarchy of bases for jurisdiction. However, an area of exclusivity may be established by treaty, as in the case of offences committed on board aircraft in flight.

Footnotes:

1  Generally: Mann (1964) 111 Hague Recueil 1; Jennings (1967) 121 Hague Recueil 323, 515–26; Akehurst (1972–73) 46 BY 145; Mann, Studies in International Law (1973) 1; Bowett (1982) 53 BY 1; Schachter (1982) 178 Hague Recueil 240; Rosenthal & Knighton, National Laws and International Commerce (1982); Lowe, Extraterritorial Jurisdiction (1983); Mann (1984) 186 Hague Recueil 11; Meessen (1984) 78 AJIL 783; Lange & Born (eds), The Extraterritorial Application of National Laws (1987); 1 Restatement Third §§401–33; Neale & Stephens, International Business and National Jurisdiction (1988); Stern (1992) 38 AFDI 239; Gilbert (1992) 63 BY 415; Meessen (ed), Extra-territorial Jurisdiction in Theory and Practice (1996); O’Keefe (2004) 2 JICJ 735; Oxman, ‘Jurisdiction of States’ (2007) MPEPIL; Ryngaert, Jurisdiction in International Law (2008); Simma & Müller, in Crawford & Koskenniemi (eds), Cambridge Companion to International Law (2012) 134. On the developing area of jurisdiction over the Internet: Wilske & Schiller (1997) 50 Fed Comm LJ 117; Reidenberg (2004–5) 153 U Penn LR 1951; Kohl, Jurisdiction and the Internet (2007); Schultz (2008) 19 EJIL 799.

2  On adjudicative jurisdiction (also referred to as judicial or curial jurisdiction): Akehurst (1972–73) 46 BY 145, 152–78; Schachter (1982) 178 Hague Recueil 9, 244–9; 1 Restatement Third §§401, 421–33; Cassese (2002) 13 EJIL 853, 858; Oxman, ‘Jurisdiction of States’ (2007) MPEPIL. This refers to the competence of a municipal court to sit in judgment over a foreign national and may be better seen as a manifestation of prescriptive jurisdiction: the application of municipal law by the court is, in effect, the actualization of prescription, though the carrying out of any judgment or sentence is an expression of enforcement jurisdiction: O’Keefe (2004) 2 JICJ 735, 737. But the different elements may be difficult to separate out in this way.

3  Cf the doctrine stated in Nottebohm(Liechtenstein v Guatemala), ICJ Reports 1955 p 4 (further: chapter 23); Kingdom of Greece v Julius Bär and Co (1956) 23 ILR 195; and the statements in Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v Sweden), ICJ Reports 1958 p 55, 109 (Judge Moreno Quintana), 135–6 (Judge Winiarski, diss), 145 (Judge Córdova, diss), 155 (Judge ad hoc offerhaus, diss).

4  Thus jurisdiction may be exercised over stateless persons or over non-nationals by agreement with their state of nationality. Cf European Agreement for the Prevention of Broadcasts Transmitted from Stations outside National Territories, 22 January 1965, 634 UNTS 239.

5  E.g. OECD Model Tax Convention on Income and Capital (8th edn, 2010); UN Model Double Taxation Convention between Developed and Developing Countries, ST/ESA/PAD/SER.E/21 (2001).

6  Fitzmaurice (1957) 92 Hague Recueil 2, 212–17; Mann (1964) 111 Hague Recueil 1, 82ff; Jennings (1957) 33 BY 146; Fawcett, (1962) 38 BY 181; Harvard Research (1935) 29 AJIL Supp 439; Higgins, Problems and Process (1994) ch 4; Ryngaert (2008); Oxman, ‘Jurisdiction of States’ (2007) MPEPIL.

7  An early cause célèbre was R v Keyn (The Franconia) (1878) 2 Ex D 63, which concerned criminal jurisdiction over the German captain of a German merchant ship which collided with a British vessel in the UK territorial sea. The Court denied jurisdiction (on a vote of 8–7), a decision quickly reversed by statute: Territorial Waters Jurisdiction Act 1878. Further: Crawford (1980) 51 BY 1, 48–61.

8  (1927) PCIJ Ser A No 10, 19.

9  E.g. Brierly (1936) 58 Hague Recueil 1, 146–8, 183–4; Basdevant (1936) 58 Hague Recueil 471, 594–7; Fitzmaurice (1957) 92 Hague Recueil 1, 56–7; Lauterpacht, 1 International Law (1970) 488–9; Higgins, Problems and Process (1994) 76–7; Cameron, The Protective Principle of International Criminal Jurisdiction (1994) 319; Ryngaert (2008) 22–6. Further: Opinion of the Inter-American Juridical Committee, 23 August 1996, 35 ILM 1329.

10  Fisheries (UK v Norway), ICJ Reports 1951 p 116, 131–4.

11  ICJ Reports 1955 p 4, 20. Also chapter 23.

12  Arrest Warrant of 11April 2000(Democratic Republic of the Congo v Belgium), ICJ Reports 2002 p 3, 78 (Judges Higgins, Kooijmans & Buergenthal), 169 (Judge ad hoc van den Wyngaert).

13  Lotus (1927) PCIJ Ser A No 10, 19.

14  Harvard Research (1935) 29 AJIL Supp 439, 480, 484–7; The Tennyson (1918) 45 JDI 739; Public Prosecutor v DS (1958) 26 ILR 209; State of Arizona v Willoughby, 862 P.2d 1319 (Az Sup Ct, 1995).

15  Board of Trade v Owen [1957] AC 602, 634 (Lord Tucker); R v Cox [1968] 1 All ER 410, 413; DPP v Doot [1973] AC 807, esp 817 (Lord Wilberforce); DPP v Stonehouse [1977] 2 All ER 909, 916 (Lord Diplock); Liangsiripraset v United States [1991] 1 AC 225. Under US law, conspiracy can be seen as either an inchoate or independent crime, allowing the protective principle and effects doctrine to found jurisdiction independently: Ford v United States, 273 US 593 (1927); Iannelli v United States, 420 US 770 (1975); United States v Winter, 509 F.2d 975 (5th Cir, 1975); United States v Baker, 609 F.2d 134 (5th Cir, 1980); United States v Ricardo, 619 F.2d 1124 (5th Cir, 1980); United States v Mann, 615 F.2d 669 (5th Cir, 1980); United States v DeWeese, 352 F.2d 1267 (5th Cir, 1980); United States v Wright Barker, 784 F.2d 161 (3rd Cir, 1986); United States v Mendez-Casarez, 624 F.3d 233 (5th Cir, 2010). Further: 18 USC §371. Generally: Blackmore (2006) 17 CLF 71; Ryngaert (2009) 9 Int Crim LR 187, 194–7.

16  United States v Aluminium Company of America, 148 F.2d 416 (2nd Cir, 1945). In US antitrust cases wide extension of the territorial principle might be explained by, though it is not expressed in terms of, a principle of protection. It can also be described in terms of the effects doctrine: Ryngaert (2008) 76–7. At length: Ryngaert, Jurisdiction over Antitrust Violations in International Law (2008).

17  Cf Naim Molvan v AG for Palestine [1948] AC 351.

18  The European approach is notable; as soon as one of the constituent elements of an offence is committed in a state’s territory, the state will ordinarily have jurisdiction: Ryngaert (2009) 9 Int Crim LR 187, 197–202 (review of France, Germany, the Netherlands, and Belgium).

19  (1927) PCIJ Ser A No 10, 23.

20  Ibid, 92 (Judge Moore); Harvard Research (1935) 29 AJIL Supp 519; Jennings (1957) 33 BY 146, 153; Sarkar (1962) 11 ICLQ 446, 456–61. See also United States v Baker, 136 F.Supp 546 (SDNY, 1955); Re Gutierrez (1957) 24 ILR 265; Weiss v Inspector-General (1958) 26 ILR 210; Public Prosecutor v Günther B and Manfred E (1970) 71 ILR 247; Passport Seizure (1972) 73 ILR 372; Greek National Military Service (1973) 73 ILR 606; UKMIL (1986) 57 BY 487, 561; Al-Skeini v Secretary of State for Defence [2008] 1 AC 153. Also Ergec, La Compétence extraterritoriale à la lumiére du contentieux sur le gazoduc Euro-Sibérien (1984) 53–68; Ryngaert (2008) 88–92.

21  E.g. Terrorism Act 2000 (UK), ss63B, 63C.

22  Public Prosecutor v Drechsler (1946) 13 ILR 73; Re Penati (1946) 13 ILR 74; In re Bittner (1949) 16 ILR 95; cf DPP v Joyce [1946] AC 347; Re P (GE)(an infant) [1964] 3 All ER 977.

23  In re Mittermaier (1946) 13 ILR 69; In re SS Member Ahlbrecht (1947) 14 ILR 196, 200–1; Ram Narain v Central Bank of India (1951) 18 ILR 207.

24  Treason Act 1351, sII; further: R v Lynch [1903] 1 KB 444; R v Casement [1917] 1 KB 98; Lew (1978) 27 ICLQ 168.

25  Offences Against the Person Act 1861, s9.

26  Ibid, s57.

27  Football Spectators Act 1989, s22.

28  Sexual Offences Act 2003, s72, Schedule 2.

29  Official Secrets Act 1989, s15.

30  Harvard Research (1935) 29 AJIL Supp 439, 519; Ryngaert (2008) 88–91.

31  E.g. UKMIL (2006) 77 BY 597, 756. See also Ryngaert (2008) 89. Naturally, this will depend on the definition of ‘serious’: cf Misuse of Drugs Act (Singapore) ss8A, 33, 33A, Schedules 2 and 4.

32  Ryngaert (2008) 89. The practice of limiting the use of nationality jurisdiction to serious offences is largely common law in origin, with civil law countries applying a more expansive approach: e.g. Bosnia/ Herzegovina Criminal Code, Art 12(2) (‘The criminal legislation of Bosnia and Herzegovina shall be applied to a citizen of Bosnia and Herzegovina who, outside the territory of Bosnia and Herzegovina, perpetrates a criminal offence’).

33  Antarctic Treaty, 1 December 1959, 402 UNTS 71, Art VIII(1) and e.g. Antarctic Act 1994 (UK), s21. The same situation subsists with respect to criminal jurisdiction on the International Space Station, though the governing instrument also provides for subsidiary territorial and passive personality jurisdiction in certain cases: Agreement Concerning Cooperation on the Civil International Space Station, 29 January 1998, TAIS 12927, Art 22. Further: Sinha (2004) 30 J Space L 85. The position is not replicated with respect to the earlier Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 27 January 1967, 610 UNTS 205: Art 8 provides that when a state party launches an object into outer space, it retains jurisdiction over that object and over any personnel—a species of flag state jurisdiction.

34  O’Keefe (2004) 2 JICJ 735, 742–3.

35  E.g. Swedish Penal Code, ch 2, s2. Further: Harvard Research (1935) 29 AJIL 439, 535; Ryngaert (2008) 88–9.

36  Jennings (1957) 33 BY 146, 154; Sarkar (1962) 11 ICLQ 446, 461; Harvard Research (1953) 29 AJIL Supp 439, 443, 445, 573, 579; Mann (1964) 111 Hague Recueil 1, 40–1; Akehurst (1972–73) 46 BY 145, 162–6; Watson (1993) 28 Texas ILJ 1; Higgins (1994) 65–9; Ryngaert (2008) 92–6. Also United States v Yunis (No 2), 681 F.Supp 896, 901–3 (DDC, 1988).

37  Moore, 2 Digest 228–42; FRUS (1887) 751–867.

38  (1927) PCIJ Ser A No 10, 15.

39  Lauterpacht has stated that in the Lotus the Court ‘declared the exercise of such protective jurisdiction to be consistent with international law’: (1947) 9 CLJ 330, 343. Cf Verzijl, 1 The Jurisprudence of the World Court (1965) 78–80.

40  (1927) PCIJ Ser A No 10, 89–94 (Judge Moore, diss). Also Flatow v Islamic Republic of Iran, 999 F.Supp 1, 15–16 (DDC, 1998). For comment on the extension of US jurisdiction with respect to terrorism: Higgins (1994) 66–7.

41  Donnedieu de Vabres, Les Principes modernes du droit penal international (1928) 170. Also Ryngaert (2008) 92–3.

42  Brierly (1928) 44 LQR 154, 161; Ryngaert (2008) 93–4.

43  E.g. Arrest Warrant, ICJ Report 2002 p 3, 76–7 (Judges Higgins, Kooijmans & Buergenthal): ‘Passive personality jurisdiction, for so long regarded as controversial, is reflected not only in the legislation of various countries…and today meets with relatively little opposition, at least so far as a particular category of offences is concerned’. Also Higgins (1994) 66; Ryngaert (2004) 94.

44  E.g. Convention on Offences Committed on Board Aircraft, 14 September 1963, 704 UNTS 219, Art 4(b); Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 10 March 1988, 1678 UNTS 221; Convention Against Torture, 10 December 1984, 1485 UNTS 85, Art 5(1)(c).

45  Bourquin (1927) 16 Hague Recueil 117, 121–89; Harvard Research (1935) 29 AJIL Supp 439, 543; Sarkar (1962) 11 ILCQ 446, 462–6; Garcia-Mora (1957–58) 19 U Pitt LR 567; van Hecke (1962) 106 Hague Recueil 253, 317–18; Ryngaert (2008) 96–100.

46  Nusselein v Belgian State (1950) 17 ILR 136; Public Prosecutor v L (1951) 18 ILR 206; Re van den Plas (1955) 22 ILR 205; Rocha v United States, 288 F.2d 545 (9th Cir, 1961); Italian South Tyrol Terrorism Case(2) (1970) 71 ILR 242; Arrest Warrant, ICJ Reports 2002 p 3, 37 (President Guillaume), 92 (Judge Rezek).

47  Naim Molvan v AG for Palestine [1948] AC 531; Giles v Tumminello (1969) 38 ILR 120.

48  [1946] AC 347 (on which see Lauterpacht, 3 International Law (1977), 221). Also Board of Trade v Owen [1957] AC 602, 634 (Lord Tucker). Further: the US Anti-Smuggling Act of 1935 (19 USC §§1701–11); Preuss (1944) 30 GST 184; Sarkar (1962) 11 ICLQ 446, 453–6.

49  (1962) 36 ILR 5, 18, 54–7 (Dist Ct), 304 (Sup Ct).

50  Lasok (1962) 11 ICLQ 355, 364. Notwithstanding this, the District Court of Jerusalem felt able to say that the law under which Eichmann was prosecuted ‘conforms to the best traditions of the law of nations’: (1962) 36 ILR 5, 18, 25. Also the statement of the Supreme Court, ibid, 287.

51  E.g. the US asserts jurisdiction over foreigners on the high seas on the basis of the protective principle, arguing that the illegal trade in narcotics is sufficiently prejudicial to its national interest: United States v Gonzalez, 776 F.2d 931 (11th Cir, 1985); United States v Davis, 905 F.2d 245 (1st Cir, 1990); Maritime Drug Law Enforcement Act 1986; Murphy (2003) 97 AJIL 183.

52  Jacobellis v Ohio, 378 US 184, 197 (1964) (Justice Stewart).

53  O’Keefe (2004) 2 JICJ 735, 739. The doctrine focuses on the deleterious effects of extra-territorial acts to the state. It is therefore primarily manifested in the criminal and regulatory spheres. Although civil manifestations are possible, it is presented here for the sake of convenience.

54  E.g. in respect of inchoate conspiracies to murder or import illegal narcotics, where these offences are almost certainly illegal in those countries in which the plotting took place. In other areas, notably the fields of antitrust/competition law, such illegality cannot be assumed, and the validity of the doctrine remains uncertain: ibid, 739.

55  (1927) PCIJ Ser A No 10, 23.

56  ICJ Reports 2002 p 3, 77 (Judges Higgins, Kooijmans & Buergenthal).

57  E.g. Case T-102/96, Gencor Ltd v Commission [1999] ECR II-753. Further: Agreement between the European Communities and the Government of the United States on the Application of Positive Comity Principles in the Enforcement of their Competition Laws, 4 June 1998 [1998] OJEU L 173/28.

58  United States v Aluminium Co of America, 149 F.2d 416, 443 (2nd Cir, 1945).

59  Generally: Raymond (1967) 61 AJIL 558; Metzger (1967) 61 AJIL 1015; Norton (1979) 28 ICLQ 575; Kelley (1991) 23 U Miami IA LR 195. Further Basedow, ‘Antitrust or Competition Law, International’ (2009) MPEPIL.

60  Lowe & Staker, in Evans (ed), International Law (3rd edn, 2010) 322–3.

61  Shipping Contracts and Commercial Documents Act 1964 (UK).

62  Lowe (1984) 27 GYIL 54; Kuyper, ibid, 72; Meessen, ibid, 97.

63  Cf the Note dated 12 August 1982 and comments, Lowe (1983) 197.

64  Note dated 18 October 1982, UKMIL (1982) 53 BY 337, 453; Lowe (1983) 212.

65  On the German position: Gerber (1983) 77 AJIL 756; Steinberger, in Olmstead (ed), Extra-territorial Application of Laws and Responses Thereto (1984) 77.

66  ICI v EEC Commission (1972) 48 ILR 106, 121–3.

67  (1988) 96 ILR 174. However, the Court based its decision on ‘the territoriality principle as universally recognized in public international law’: (1988) 96 ILR 193, 196–7. Further: Waelbroeck, in Olmstead (ed), Extra-territorial application of laws and responses thereto (1984) 74; Akehurst (1988) 59 BY 408, 415–19.

68  E.g. UKMIL (1992) 63 BY 615, 724–9; UKMIL (1993) 64 BY 579, 643–5; UKMIL (1995) 66 BY 583, 669–71; UKMIL (1996) 67 BY 683, 763–5; UKMIL (1998) 69 BY 433, 534; UKMIL (2001) 72 BY 551, 627, 631.

69  22 USC §6001.

70  Iran and Libya Sanctions Act, 110 Stat 1541.

71  Cuban Liberty and Democratic Solidarity (Libertad) Act, 22 USC §6021.

72  Gidel, 2 Le Droit international public de la mer (1932) 39–252; Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927) 144–208; Harvard Research (1929) 23 AJIL Supp 241, 307–28; Harvard Research (1935) 29 AJIL Supp 508; McDougal & Burke, The Public Order of the Oceans (1962) 161–73; Churchill & Lowe, The Law of the Sea(3rd edn, 1999) 65–9; Molenaar, ‘Port State Jurisdiction’ (2009) MPEPIL; Rothwell & Stephens, The International Law of the Sea (2010) 56–7. For analogous cases of concurrence: Beale (1922–23) 36 Harv LR 241, 247–51; Lauterpacht (1960) 9 ICLQ 208, 231–2.

73  Also Lauritzen v Larsen, 345 US 571, 584–6 (1953); Churchill & Lowe (3rd edn, 1999) 66–7.

74  Further: UNCLOS, 10 December 1982, 1833 UNTS 3, Arts 91–4; UN Convention on the Conditions of Registration of Ships, 7 February 1986, 26 ILM 1229; M/V Saiga (No 2) (1999) 120 ILR 143.

75  Molenaar, Coastal State Jurisdiction over Vessel Source Pollution (1998) 187; Churchill & Lowe (3rd edn, 1999) 68; Rothwell & Stephens (2010) 56.

76  United States v Flores, 289 US 137 (1933); Re Bianchi (1957) 24 ILR 173.

77  2 Gidel (1932) 204, 246; Churchill & Lowe (3rd edn, 1999) 65–6.

78  McNair, 2 Opinions 194.

79  Churchill & Lowe (3rd edn, 1999) 66–7.

80  Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 August 1995, 2167 UNTS 3.

81  2 November 2001, 41 ILM 40. Further: Rau (2006) 6 MPUNYB 387.

82  E.g. Shubber, Jurisdiction over Crimes on Board Aircraft (1973).

83  R v Martin [1956] 2 QB 272, 285–6 (Devlin J); R v Naylor [1962] 2 QB 527.

84  In R v Martin [1956] 2 QB 272 it was decided that s62 of the Civil Aviation Act 1949 (UK) has procedural effect and confers jurisdiction only if a substantive rule makes the act concerned criminal when committed on board a British aircraft; that case involved the Dangerous Drugs Regulations 1953 (UK). Generally: Cheng (1959) 12 CLP 177.

85  14 September 1963, 704 UNTS 219. Further: Mendelsohn (1967) 53 Va LR 509; and, for the UK, the Tokyo Convention Act 1967; comment by Samuels (1967) 42 BY 271.

86  Convention for the Suppression of Unlawful Seizure of Aircraft, 16 December 1970, 860 UNTS 105; Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 23 September 1971, 974 UNTS 178; Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation, 10 September 2010, available at www.icao.int/DCAS2010/restr/docs/beijing_convention_multi.pdf; the Aviation Security Act 1982 (UK).

87  Harvard Research (1935) 29 AJIL Supp 439, 563; Jennings (1957) 33 BY 146, 156; Bishop (1965) 115 Hague Recueil 147, 323–4; Bowett (1982) 53 BY 1, 11–14; Brown (2001) 35 NELR 383; Higgins (1994) 56–65; The Princeton Principles on Universal Jurisdiction (2001); Reydams, Universal Jurisdiction (2003); Ryngaert (2008) ch 5; and esp O’Keefe (2004) 2 JICJ 735.

88  O’Keefe (2004) 2 JICJ 735, 745. Cf Reydams (2003) 5. Also la Pradelle, in Ascensio, Decaux & Pellet (eds), Droit International Pénal (2005) 905.

89  O’Keefe (2004) 2 JICJ 735, 745.

90  Brand (1949) 26 BY 414; Baxter (1951) 28 BY 382. Cf Röling (1960) 100 Hague Recueil 323, 357–62. Also Re Sharon and Yaron (2003) 127 ILR 110; Javor and Others (1996) 127 ILR 126; Munyeshyaka (1998) 127 ILR 134.

91  Higgins (1994) 58. See also Arrest Warrant, ICJ Reports 2002 p 3, 81 (Judges Higgins, Kooijmans & Buergenthal).

92  (1968) 36 ILR 18, 26.

93  This can be explained by the fact that no state could exercise territorial jurisdiction: e.g Lotus (1927) PCIJ Ser A No 10, 51 (Judge Finlay, diss), 70–1 (Judge Moore, diss), 95 (Judge Altamira, diss); Arrest Warrant, ICJ Reports 2002 p 3, 37–8, 42 (President Guillaume), 55–6 (Judge Ranjeva), 78–9, 81 (Judges Higgins, Kooijmans & Buergenthal). On piracy: UNCLOS, Art 105, and chapter 13.

94  E.g. Lotus (1927) PCIJ Ser A No 10, 95 (Judge Altamira, diss); Arrest Warrant, ICJ Reports 2002 p 3, 61–2 (Judge Koroma).

95  Ryngaert (2008) 110–15.

96  Jorgic v Germany[1997] ECtHR 74614/01, §69. Institut de Droit International, Seventeenth Commission, Universal Jurisdiction Over Genocide, Crimes Against Humanity and War Crimes (2005) 2. Generally: Kreß (2006) 4 JICJ 561; Reydams (2003) 1 JICJ 428; cf Reydams (2003) 1 JICJ 679. This has become the position despite the fact that the Genocide Convention, 9 December 1948, 78 UNTS 277, Art VI reserves universal jurisdiction in case of genocide for an international court: cf In re Koch (1966) 30 ILR 496; Jorgic v Germany [1997] ECtHR 74614/01 (alternate interpretation of Genocide Convention, Art VI, which permits universal jurisdiction for states); Schabas (2003) 1 JICJ 39.

97  Higgins (1994) 61.

98  R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147, 275 (Lord Millett); Furundžija (2002) 121 ILR 213, 262; Cassese, International Criminal Law (2nd edn, 2008) 338.

99  ICC Doc RC/Res.6, 16 June 2010; ICC Statute, 17 July 1998, 2187 UNTS 3, Arts 8bis, 15bis, 15ter.

100  An attempt to persuade German authorities to prosecute for aggression with respect to the US invasion of Iraq failed: Kreß (2004) 2 JICJ 245; Kreß (2004) 2 JICJ 347.

101  Ryngaert (2008) 113–15.

102  Generally: Winants (2003) 16 LJIL 491; O’Keefe (2004) 2 JICJ 735; Goldmann, ‘Arrest Warrant Case (Democratic Republic of Congo v Belgium)’ (2009) MPEPIL.

103  Cf also the dissenting opinion of Judge Oda: ICJ Reports 2002 p 3, 51.

104  President Guillaume took an extremely conservative stance on universal jurisdiction holding that under customary international law it only applied with respect to piracy and within the confines of certain sui generis treaty regimes: ibid, 37–8.

105  Ibid, 94.

106  Ibid, 55–7 (Judge Ranjeva), 121–6 (Judge ad hoc Bula-Bula).

107  Reydams (2003) 55, 74, 88–9, 156, 177, 222, 224, 226–7; Cassese (2nd edn, 2008) 338.

108  O’Keefe (2004) 2 JICJ 735, 750.

109  Ibid, 751.

110  Generally: Reydams (2003) ch 3; Ryngaert (2008) 100–27; Scharf, ‘Aut dedere aut iudicare’ (2008) MPEPIL.

111  The concept again comes from Grotius, who found the notion of a fugitive arriving on the territory of a state and there remaining to enjoy the fruits of his iniquity offensive: Grotius, De Iure Belli ac Pacis (1625, Tuck 2005) II.xxi.§4.1. The position was later reversed by Enlightenment philosophers who sought to restrict the prescriptive jurisdiction of states to territorial concerns alone: e.g, Beccaria, Traité des délits et des peines (1764) §21. Further: Arrest Warrant, ICJ Reports 2002 p 3, 36–40 (President Guillaume).

112  In the modern era, the concept first appeared in the International Convention for the Suppression of Counterfeiting Currency, 20 April 1929, 112 LNTS 371, Art 9.

113  16 December 1970, 860 UNTS 105, Art 4(1).

114  E.g Convention for the Suppression of Unlawful Acts Against the Safety of Civilian Aviation, 23 September 1971, 974 UNTS 117, Art 5(1)(c), (2) and (2bis); Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 14 December 1973, 1035 UNTS 167, Art 3(2); International Convention Against the Taking of Hostages, 17 December 1979, 1316 UNTS 205, Art 5(2); Convention on the Physical Protection of Nuclear Material, 3 March 1980, 1456 UNTS 124, Art 8(2); Convention Against Torture, 10 December 1984, 1465 UNTS 85, Art 5(2); Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 20 March 1988, 1678 UNTS 221, Art 6(4); Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, 10 March 1988, 1678 UNTS 304, Art 3(2), Convention against the Recruitment, Use, Financing and Training of Mercenaries, 4 December 1989, 2163 UNTS 96, 9(2); Convention on the Safety of United Nations and Associated Personnel, 9 December 1994, 2051 UNTS 363, Art 10(4); International Convention for the Suppression of Terrorist Bombings, 15 December 1997, 2149 UNTS 256, Art 6(4); International Convention for the Suppression of the Financing of Terrorism, 9 December 1999, A/RES/54/109, Art 7(4); Convention against Transnational Organized Crime, 15 November 2000, 2225 UNTS 209, Art 15(4); International Convention for the Suppression of Acts of Nuclear Terrorism, 13 April 2005, 2445 UNTS 89, Art 9(4); Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, A/RES/61/177, Art 9(2); Convention on the Suppression of Unlawful Acts relating to International Civil Aviation, 10 September 2010, Art 8(3), available at www.icao.int/DCAS2010/.

115  Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31, Art 49; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85, Art 50; Geneva Convention Relative to the Treatment of Prisoners of War, 75 UNTS 135, Art 129; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 85 UNTS 287, Art 146.

116  Generally: Saul (2005) 52 NILJ 57; Saul, Defining Terrorism in International Law (2006); cf Cassese (2nd edn, 2008) ch 8.

117  Higgins (1994) 64 (‘Although these treaties seek to provide wide alternative bases of jurisdiction, they are not examples of universal jurisdiction. Universal jurisdiction, properly called, allows any state to assert jurisdiction over an offence’).

118  Ryngaert (2008) 105. Also Lowe & Staker, in Evans (3rd edn, 2010) 313, 318–35.

119  E.g. United States v Rezaq, 899 F.Supp 697 (DDC, 1995); United States v Rezaq, 134 F.3d 1121 (DC Cir, 1998); United States v Wang Kun Lue, 134 F.3d 79 (2nd Cir, 1997); United States v Lin, 101 F.3d 760 (DC Cir, 1996); United States v Ni Fa Yi, 951 F.Supp 42 (SDNY, 1997); United States v Chen De Yian, 905 F.Supp 160 (SDNY, 1995).

120  United States v Yunis (No 2), 681 F.Supp 896, 901 (DDC, 1988).

121  There are many specialized areas, e.g. those relating to conscription and taxation. On the former: Parry (1954) 31 BY 437; 8 Whiteman 540–72. On the latter: Mann (1964) 111 Hague Recueil 1, 109–19; Martha, The Jurisdiction to Tax in International Law (1989).

122  Ryngaert (2008) 76–8. Also Ryngaert, Jurisdiction over Antitrust Violations in International Law (2008).

123  On the relations of public and private international law: Mann (1964) 111 Hague Recueil 9, 10–22, 54–62; Akehurst (1972–73) 46 BY 145, 216–31, Mills, The Confluence of Public and Private International Law (2009).

124  Beale (1922–23) 36 Harv LR 241. For a different view see Akehurst (1972–73) 46 BY 145, 170–7; and see Derby & Co Ltd v Larsson [1976] 1 WLR 202; Crawford (1976–77) 48 BY 333, 352. Also Thai-Europe Tapioca Service v Government of Pakistan [1975] 1 WLR 1485, 1491–2 (Lord Denning).

125  Russell& Co v Cayzer, Irvine Ltd [1916] 2 AC 298, 302.

126  E.g. Maharanee of Baroda v Wildenstein [1972] 2 QB 283.

127  E.g. Dunlop Ltd v Cudell& Co [1902] 1 KB 342; Cleveland Museum of Art v Capricorn International SA [1990] 2 Lloyd’s Rep 166.

128  E.g. Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460; Airbus Industrie GIE v Patel [1999] 1 AC 119; Lubbe v Cape plc [2000] 1 WLR 1545. Where the defendant has a territorial connection with England sufficient to allow the writ to be served directly, the court may decline jurisdiction on the basis that England is forum non conveniens. Generally: Fentiman, International Commercial Litigation (2010) chs 8–9, 12.

129  E.g. Ehrenzweig (1956) 65 Yale LJ 289. Relations between common law and civil law countries on the service of process have been a source of difficulty: e.g. Decision of 7 December 1994 concerning Service of Punitive Damage Claims (1995) 34 ILM 975.

130  The unfortunate corollary of which is that the onus is then on the defendant to disprove jurisdiction: Fentiman (2010) 230.

131  International Shoe Co v Washington, 326 US 310, 316 (1945). Also World-Wide Volkswagen Corp v Woodson, 444 US 286, 297 (1980); Helicopteros Nacionales de Columbia v Hall, 466 US 408, 415–16 (1984); Burger King v Rudzewicz, 471 US 462, 473 (1985); In the Matter of an Application to Enforce Admin Subpoenas Deces Tecum of the SEC v Knowles, 87 F.3d 413, 417 (10th Cir, 1996); Goodyear Dunlop Tyres Operations SA v Brown, 131 SC 2846 (2011).

132  Ryngaert (2008) 12.

133  E.g. Boryk v de Havilland Aircraft Co, 341 F.2d 666 (2nd Cir, 1965); cf also Lakah Group v Al Jazeera Satellite Channel [2002] EWHC 1297 (QB); aff’d [2003] EWCA Civ 1781.

134  [2001] OJEU L 12/1, an elaboration on the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, Brussels, 27 September 1968, 1262 UNTS 153 As an EU member, the UK is bound by the terms of the Brussels 1 Regulation. To the extent that the Regulation does not apply, however, the common law rules of jurisdiction will have residual effect: Brussels 1 Regulation, Art 4. Also of note is EC Regulation 593/2008 on the law applicable to contractual relations: [2008] OJEU L 177/6 (Rome 1 Regulation).

135  The Brussels 1 Regulation permits certain exceptions to this principle based on questions of subject-matter and the relationship between the parties: e.g. Arts 5(1) (matters relating to a contract), 5(3) (matters relating to a tort or delict), 5(5) (matters relating to a dispute arising from the activities of a branch, agent or other establishment); 22 (exclusive jurisdiction), 23 (jurisdiction agreements), and 27 and 28 (lis pendens and related actions).

136  Further: Fentiman (2010) 384–96.

137  Cf Brussels 1 Regulation, Art 28.

138  E.g. because the court second seised is the beneficiary of an exclusive jurisdiction agreement between the parties (Art 23) or the subject-matter of the dispute is something within the exclusive jurisdiction of the court second seised (Art 22).

139  Case C-281/02, Owusu v Jackson [2005] ECR I-1383 (ECJ). Also Case C-159/02, Turner v Grovit [2005] ECR I-3565 (ECJ); Case C-116/02, Erich Gasser GmbH v MISAT srl [2003] ECR I-14693 (ECJ); Case C-185/07, Allianz SpA v West Tankers Inc [2009] ECR I-663.

140  Ryngaert (2008) ch 1; Mills (2009).

141  Mills (2009) 298 and generally: chs 1–3.

142  E.g. Timberland Lumber Co v Bank of America, 549 F.2d 597 (9th Cir, 1976).

143  Dodge (1996) 19 Hastings ICLR 221; Steinhardt & D’Amato (eds), The Alien Tort Claims Act (1999); Paust (2004) 16 Fla JIL 249; Ryngaert (2007) 38 NYIL 3; Ryngaert (2008) 126–7; Seibert-Fohr, ‘United States Alien Tort Statute’ (2008) MPEPIL.

144  Reydams (2008) 126–7.

145  28 USC §1350. After the ‘rediscovery’ of the Alien Tort Claims Act, the Torture Victims Protection Act of 1991 was passed: it provides a cause of action for any victim of torture or extrajudicial killing wherever committed: 106 Stat 73.

146  These are the offences against the law of nations described by Blackstone as addressed by the criminal law of England: Sosa v Alvarez-Machain, 542 US 692, 725 (2004). The origins of the original statute are obscure: Paust (2004) 16 Fla JIL 249; Seibert-Fohr, ‘United States Alien Tort Statute’ (2008) MPEPIL.

147  630 F.2d 876 (2nd Cir, 1980).

148  There is no nationality requirement imposed on the defendant by the ATS; accordingly, US companies are named as defendants in most ATS cases, converting the statute into a corporate social responsibility tool: e.g. Doe v Unocal, 249 F.3d 915 (9th Cir, 2001). That said, a determination by the Supreme Court as to whether corporations can be held liable under the ATS has not yet been made: cf Presbyterian Church of Sudan v Talisman Energy Inc, 582 F.3d 244 (2nd Cir, 2009); Kiobel v Royal Dutch Petroleum, 621 F.3d 111 (9th Cir, 2010); and Crook (2010) 104 AJIL 119. The Supreme Court has ordered a rehearing of the Kiobel appeal on grounds related to the scope of jurisdiction under the ATS.

149  Ryngaert (2008) 126.

150  542 US 692, 749 (2004).

151  Ryngaert (2003) 38 NYIL 3, 35–8.

152  E.g. Arrest Warrant, ICJ Reports 2002 p 3, 77 (Judges Higgins, Kooijmans & Buergenthal) (‘[w]hile this unilateral exercise of the function of guardian of international values has been much commented on, it has not attracted the approbation of States generally’). Cf Ramsay (2009) 50 Harv ILJ 271.

153  Ryngaert (2008) 126.

154  The Brussels 1 Regulation and the Rome I Regulation are the characteristic examples of this, but cf also the results of the Organization of American States Specialized Conferences on Private International Law: www.oas.org/dil/privateintlaw_interamericanconferences.htm.

155  Cf the list of conventions at www.hcch.net/index_en.php.

156  E.g. Janković, Decision on Art 11bisreferral (ICTY Appeals Chamber, Case No IT-96–23/2-AR11bis.2, 15 November 2005), §34 (‘In this context, the Appeals Chamber notes that attempts among States to establish a hierarchy of criteria for determining the most appropriate jurisdiction for a criminal case, where there are concurrent jurisdictions on a horizontal level (i.e. among States), have failed thus far’). Availabl e at www.icty.org/x/cases/stankovic/acdec/en/051115.htm.

157  E.g. Eichmann (1962) 36 ILR 277, 302; Arrest Warrant, ICJ Reports 2002 p 3, 80 (Judges Higgins, Kooijmans & Buergenthal) (arguing that universal jurisdiction can only be exercised once the territorial state has declined to take action).

158  Further: Ryngaert (2008) ch 5.

159  Mann (1964) 111 Hague Recueil 9, 43–51, 82–126; Sarkar (1962) 11 ICLQ 446, 466–70; Fawcett (1962) 38 BY 181, 188–90; Steinberger, in Olmstead (1984) 77, 91–3. Cf Fitzmaurice (1957) 92 Hague Recueil 1, 215–17.

160  Ryngaert (2008) ch 2; Kamminga, ‘Extraterritoriality’ (2008) MPEPIL.

161  (1927) PCIJ Ser A No 10, 19.

162  ICJ Reports 2002 p 3, 78 (Judges Higgins, Kooijmans & Buergenthal), 169 (Judge ad hoc van den Wyngaert). Further: Barcelona Traction, Light and Power Co Ltd (Belgium v Spain), Second Phase, ICJ Reports 1970 p 3, 105 (Judge Fitzmaurice).

163  Ryngaert (2008) 22–6; cf Higgins (1994) 162–3.

164  E.g. Mann (1964) 111 Hague Recueil 1, Higgins (1994) 77; Ryngaert (2008) 21–6; Arrest Warrant, ICJ Reports 2002 p 3, 140–1 (Judge ad hoc van den Wyngaert).

165  Cf Ryngaert (2008) 26–41.

166  O’Keefe (2004) 2 JICJ 735, 741.

167  Ryngaert (2008) 24–5.

168  E.g. Protection of Trading Interests Act 1980 (UK) (which has however been little used). Also EC Regulation 2271/96, enacted in response to the Helms-Burton and D’Amato-Kennedy Acts. Further: the 1982 comments of the European Community regarding the so-called ‘pipeline dispute’: Lowe (1984) 33 ICLQ 515.

169  Mann (1964) 111 Hague Recueil 9, 126–58; Mann (1964) 13 ICLQ 1460; Jennings (1957) 33 BY 146; 6 Whiteman 118–83; Verzijl (1961) 8 NILR 3; van Hecke (1962) 106 Hague Recueil 253, 257–356; Akehurst (1972–73) 46 BY 145, 179–212; Rosenthal & Knighton, National Laws and International Commerce (1982); Meessen (ed), Extra-territorial Jurisdiction in Theory and Practice (1996).

170  (1927) PCIJ Ser A No 10, 18.

171  E.g. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005 p 168, 196–9.

172  Lotus (1927) PCIJ Ser A No 10, 18; Service of Summons (1961) 38 ILR 133; 2 Répertoire suisse de droit international public, 986–1017.

173  E.g. Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces, 19 June 1951, 199 UNTS 67, Art VII; Agreement between the Democratic Republic of East Timor and the United Nations concerning the Status of the United Nations Mission of Support in East Timor, 20 May 2002, 2185 UNTS 368, Arts 43–4. Further: chapter 22.

174  United States v Aluminium Co of America, 148 F.2d 416 (1945).

175  United States v Watchmakers of Switzerland Information Center Inc, 133 F.Supp 40 (SDNY, 1955); 134 F.Supp 710 (SDNY, 1955).

176  Intention was not a prominent requirement in United States v ICI, 100 F.Supp 504 (SDNY, 1951); 105 F.Supp 215 (SDNY, 1952), and in many circumstances it can be inferred.

177  Timberlane Lumber Company v Bank of America, 549 F.2d 597 (9th Cir, 1976); Mannington Mills Inc v Congoleum Corporation, 595 F.2d 1287 (3rd Cir, 1979). The ‘balancing’ approach was criticized in Laker Airways Ltd v Sabena, 731 F.2d 909 (DC Cir, 1984). Also Meessen (1984) 78 AJIL 783. Hartford Fire Insurance v California, 509 US 764 (1993) ignored almost all the balancing factors and held that US courts should exercise jurisdiction where there is a substantial effect within the US and there is no conflict, i.e. no foreign law requires that a party act or not act in a certain manner contrary to US laws.

178  6 Whiteman 133, 159, 164.

179  Barcelona Traction, Second Phase, ICJ Reports 1970 p 3, 103–6 (Judge Fitzmaurice); ICJ Pleadings, Barcelona Traction, Belgian Memorial, 114; ICJ Pleadings, 1 Barcelona Traction (New Application: 1962), Belgian Memorial, 165, 167–8.

180  The Attorney-General, Sir John Hobson, 15 July 1964; British Practice (1964) 146, 153.

181  (1957) 33 BY 146, 151. Also British Nylon Spinners Ltd v ICI Ltd [1952] 2 All ER 780; [1954] 3 All ER 88; Kahn-Freund (1955) 18 MLR 65.

182  Carron Iron Co v Maclaren (1855) 5 HLC 416, 442 (Lord Cranworth); The Tropaioforos (1962) 1 Lloyd’s List LR 410; Mann (1964) 111 Hague Recueil 1, 149–50.

183  Generally: McClean, International Co-operation in Civil and Criminal Matters (2002).

184  E.g. police officials of various nationalities were permitted to enter Indonesia in the wake of the Bali bombings (2002), UK police were permitted to operate in Germany during the soccer World Cup in order to regulate football hooliganism (2006), and French forces were permitted to enter Somali territory in order to capture the pirates responsible for the seizure of the French yacht Le Ponant (2008).

185  Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders [2000] OJEU L 239/19.

186  [2001] OJEU C 197/1. Also: Convention on the Establishment of a European Police Office [1995] OJEU C 316/2. Further: McClean (2002) 167–8, 224–37.

187  The UN has concluded a series of model and actual treaties designed to secure greater co-operation in criminal matters: UN Model Treaty on Mutual Assistance in Criminal Matters, 14 December 1990, A/ RES/45/117, amended by A/RES/53/112, 20 January 1999; Model Treaty on the Transfer of Proceedings in Criminal Matters, 14 December 1990, A/RES/45/118; UN Convention Against Transnational Organized Crime, 15 November 2000, A/RES/55/25 (Annex I). Further: McClean (2002) 213–20; Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France), ICJ Reports 2008 p 117.

188  Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of the Netherlands concerning a Scottish trial in the Netherlands, 18 September 1998, 2062 UNTS 81. This approach was approved in SC Res 1192 (1998). Further: Scharf (1999–2000) 6 ILSA JICL 355; Elegab (2000) 34 Int Lawyer 289; Aust (2000) 49 ICLQ 278; Plachta (2001) 12 EJIL 125. Also: Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of New Zealand concerning trials under Pitcairn law in New Zealand and related matters, 11 October 2002, 2219 UNTS 57; Pitcairn Trials Act 2002 (NZ); R v Seven Named Accused (2004) 127 ILR 232; Christian & Ors v R [2007] 2 WLR 120.

189  E.g. Wisconsin v Pelican Insurance Co, 127 US 265 (1887); Huntington v Attrill [1893] AC 150; United States v Inkley [1989] QB 255 (CA).

190  28 May 1970, ETS No 70. Further: McClean (2002), 367–78.

191  Generally: Shearer, Extradition in International Law (1971); Stanbrook & Stanbrook, Extradition Law and Practice (2nd edn, 2000); Sambei & Jones, Extradition Law Handbook (2005); Nicholls & Montgomery, The Law of Extradition and Mutual Assistance (2nd edn, 2007); Stein, ‘Extradition’ (2006) MPEPIL. On reciprocity as a basis for extradition: Rezek (1981) 52 BY 171.

192  E.g. Extradition Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America, 31 March 2003, Cm 5821.

193  13 December 1957, 359 UNTS 273. Also: Additional Protocol to the European Convention on Extradition, 15 October 1975, CETS No 86; Second Additional Protocol to the European Convention on Extradition, 17 March 1978, CETS No 98.

194  Cf EC Framework Decision of 13 June 2002 on the European arrest warrant and surrender procedures between Member States [2002] OJEU L 190/1; and see Assange v Swedish Prosecution Authority [2012] UKSC 22. A similar though voluntary scheme persists between Commonwealth nations: London Scheme for Extradition within the Commonwealth (incorporated agreed amendments at Kingstown, November 2002), in Commonwealth Secretariat, 2002Meeting of Commonwealth Law Ministers and Senior Officials (2003) Annex B.

195  14 December 1990, A/RES/45/116. The Model Treaty has been supplemented by a UN Model Law on Extradition, issued by the UN Office on Drugs and Crime: 10 May 2004, E/EN.15/2004/CRP.10.

196  E.g. UNMTE, Art 2. Older treaties phrased this requirement in terms of an exhaustive list of offences for which extradition could be requested: ECE, Art 2, but cf Art 2(4). The EAW does away with this entirely with respect to certain serious offences, including those deemed to be crimes under the ICC Statute: EAW, Art 2(2).

197  E.g. UNMTE, Art 3(a), ECE, Art 3. Also the European Convention on Extradition, 13 December 1957, 359 UNTS 273, Art 3, supplemented by Additional Protocol, 15 October 1975, 1161 UNTS 450, Art 1.

198  E.g. UNMTE, Art 14, ECE, Art 14.

199  E.g. UNMTE, Art 3(d), ECE, Arts 8–9. EAW, Art 4(5), extends the principle to situations where third states have given judgment against the accused, subject to the treaty in question.

200  E.g. UNMTE, Art 3(f). Additionally, the European Court of Human Rights held that all parties to the ECHR could not knowingly extradite an individual where that individual would be in danger of torture: Soering v United Kingdom (1989) 98 ILR 270. Cf Netherlands v Short (1990) 29 ILM 1375; Ng v Canada (1993) 98 ILR 497; Aylor (1993) 100 ILR 664; US v Burns and Rafay (2001) 124 ILR 298; Mamatkulov and Askarov v Turkey (2005) 134 ILR 230.

201  E.g. UNMTE, Art 3(d), ECE, Art 11.

202  Cf notoriously, Eichmann (1962) 36 ILR 5. There, the accused was abducted from Argentina, drugged, and dressed as a flight attendant for rendition to Israel. Further: Fawcett (1962) 38 BY 181.

203  Including human rights standards: Öcalan v Turkey [2005] ECtHR 46221/99 (irregular rendition not automatically contrary to ECHR Art 5(1)).

204  E.g. Opinion of the Inter-American Jurisdiction Committee on the International Legality of SCOTUS Case 91–712 (1993) 4 CLF 119; Stocké v Germany (1991) 95 ILR 327. Further: Parry (2005) 6 Melb JIL 516; Sadat (2005) 37 Case WRJIL 309; Weissbrodt & Bergquist (2006) 19 Harv HRJ 123; Sands, in Mélanges Salmon (2007) 1074; Satterthwaite (2007) 75 G Wash LR 1333; Winkler (2008) 30 Loyola LA ICLR 33; Messineo (2009) 7 JICJ 1023; Jensen & Jenks (2010) 1 Harv NSJ 171. Cf also the reports of the Council of Europe on rendition: EC Docs 10957, 12 June 2006, 11302 rev, 11 June 2007.

205  This is so in the US: United States v Alvarez-Machain, 504 US 655 (1992). But cf R v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42; S v Ebrahim (1991) 95 ILR 417. Traditionally European jurisdictions would ordinarily accept jurisdiction in exorbitant circumstances, but this has changed with the ECtHR: Re Argoud (1964) 45 ILR 90; cf Stockë v Germany (1991) 95 ILR 350. Further: El-Masri v Macedonia, al Nasheri v Poland & Abu Zubaydaf v Lithuania, pending before the ECtHR.

206  Generally: Brussels 1 Regulation, Ch III; Kennett, The Enforcement of Judgments in Europe (2000); Fentiman (2010) ch 18.

207  Brussels 1 Regulation, Arts 34, 35.

208  Mareva Compania Naviera SA v International Bulkcarriers SA [1975] 2 Lloyd’s Rep 509; and cf generally: Fentiman (2010) 642–90. Also: Senior Courts Act 1981 (UK) s37(1) and (3); Civil Jurisdiction and Judgments Act 1982 (UK) s25.

209  Ashtiani v Kashi [1987] QB 888.

210  Babanaft International Co v Bassatne [1990] Ch 13, 37–9 (Kerr LJ), 41–2 (Nicholls LJ).

211  E.g. Babanaft International Co v Bassatne [1990] Ch 13; Derby & Co Ltd v Weldon [1990] Ch 48 (CA).

212  Where compliance with the freezing injunction would prevent the third party complying with what it reasonably believes to be its obligations under the law of the jurisdiction in which the assets are located, it need not comply with the order: Babanaft International Co v Bassatne [1990] Ch 13; Baltic Shipping v Translink [1995] 1 Lloyd’s Rep 673; Bank of China v NMB LLC [2002] 1 WLR 844.

213  E.g. Credit Suisse Fides Trust SA v Coughi [1998] QB 818; Republic of Haiti v Duvalier [1990] 1 QB 202; Refco v Eastern Trading Co [1999] 1 Lloyd’s Rep 159 (CA); Ryan v Friction Dynamics [2001] CP Rep 75; Motorola Credit Corporation v Uzan [2004] 1 WLR 113.

214  Castanho v Brown & Root [1981] AC 557, 573; Airbus Industrie GIE v Patel [1999] 1 AC 119, 133; Amchem Products Inc v British Columbia Workers Compensation Board (1993) 102 DLR (4th) 96, 119; Turner v Grovit [2002] 1 WLR 107. Generally: Fentiman (2010) ch 15; Senior Courts Act 1981 (UK) s27.

215  Masri v Consolidated Contractors International (UK) Ltd (No 3) [2009] QB 503, 533. This also includes cases where the foreign claimant is prevented from re-litigating previous proceedings: e.g. Royal Bank of Scotland plc v Hicks & Gillette [2010] EWHC 2579 (Ch).

216  E.g. Midland Bank plc v Laker Airways Ltd [1986] QB 689; cf Siskina (Owners of cargo lately laden on board) v Distos Compania Naviera SA [1979] AC 210.

217  Notably where the parties have concluded an exclusive jurisdiction agreement in favour of the injuncting court: e.g. Donohue v Armco Ltd [2002] 1 Lloyd’s Rep 425.

218  As was the case in Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC).

219  Generally: Maier (1982) 76 AJIL 280; Paul (1991) 32 Harv JIL 1; Collins, in Fawcett (ed), Reform and Development of Private International Law (2002) 89.

220  [1990] 3 SCR 1077, 1096.

221  159 US 113, 164 (1895).

222  E.g. in relation to anti-suit injunctions, Turner v Grovit [2002] 1 WLR 107, §28 (Lord Hobhouse). Further: Hartley (1987) 35 AJCL 487; Peel (1998) 114 LQR 543; Fentiman (1998) 57 CLJ 467; Fentiman (2010) 579–85. In relation to freezing injunctions: Credit Suisse Fides Trust SA v Cuoghi [1998] QB 818; Refco v Eastern Trading Co [1999] 1 Lloyd’s Rep 159.

223  E.g. Case C-150/02, Turner v Grovit [2005] ECR I-3565; Case C-116/02, Erich Gasser GmbH v MISAT srl [2003] ECR I-14693 (ECJ); Case C-185/08, Allianz SpA v West Tankers Inc [2009] ECR I-663.

224  The various principles of criminal jurisdiction overlap and could be synthesized in this way. Further: Mann (1964) 111 Hague Recueil 1, 44–51, 126; Survey of International Law, 23 April 1971, A/CN.4/245, §§80–90; Barcelona Traction, Second Phase, ICJ Reports 1970 p 3, 248–50, 262–3 (Judge Padilla Nervo). Cf ibid, 103–6 (Judge Fitzmaurice).

225  E.g. Buck v Attorney-General [1965] Ch 745, 770–2 (Diplock LJ); Lauritzen v Larsen, 345 US 571, 584–6 (1953); Rio Tinto Zinc Corporation v Westinghouse [1978] AC 547, 607ff (Lord Wilberforce), 618ff (Lord Dilhorne). For the view of the Federal Cartel Office, German Federal Republic, and the Constitutional Court: Gelber (1983) 77 AJIL 756, 776–7. Further: UKMIL (1978) 49 BY 329, 388–90; (1984) 55 BY 405, 540; (1985) 56 BY 363, 385–6. Cf Aérospatiale v District Court, 482 US 522, 554–61 (1987) (Justice Blackmun, diss).