JURISDICTION jurisdiction by a State. Further, the principle of ne isin iderm may help to resolve ‘concurring jurisdiction claims. The ‘Effects Doctrine’ ‘The ‘effects doctrine’, which derives from the principle of objective teritonatty. At Trex developed in the US to deal with juriscictional problems in competion law. wijer the doctrine US courts have jurisdiction to apply US antitrust law to ‘conduct which: © occurred outside the US territory; sees intended to, and did infact, harm competition in the US: and Aes atGirect, substantial and reasonably foreseeable adverse effect on us ‘commerce of US export. The European Community (EC) has endorsed the ‘effects doctrine” inthe Wood Pulp cases, Jurisdiction to Adjudicate In common law countries due process guarantees require thet in criminal proceed- ings the accused must be present within the jurisdiction, Tals absentia are, ings the towed in some chi lw countries, The position of international aw on Criminal universal jurisdiction in absentia is unclear. Jurisdiction to Enforce international lw prohibits a State from exercising sovereign functions jn fhe fet toy of another State without that State's consent. The llega! seit of foreign ane the territory of another Stat, although it violates internation! aot 0 sper states, such as the US and Isael, does not prevent municipal cours from exercising criminal jurisdiction. a1 __ Introduction “The term jurisdiction has many meanings but in the contest of pubic ‘international ot re fon tothe legal competence ofa State 1 make, apply. and enforce res swith regard to postons, property and stations /events outside i territory, and 1¢ the Limits of that arpetence, Professor Mann described the tem ‘jurisdiction’ 35 "= State's right under comPeional law to regulate conduct in matters not exclusively of domestic concern! 1 paatan, "he Dorn furl in ema Law (1964 111 READE 2INTRODUCTION Described in these terms, jurisdiction is fondamental to the concept of sovereignty. It ‘concerns both the extent of sovereign powers and the scope or limitation of those powers, atthe international level, ‘Three types of jurisdiction can be distinguished. The best description of each is con- tained in the Restatement (Third) of the Foreign Relations Law of the United States of which the major aspects are set out in the following three points: + Jurisdiction to prescribe, ‘i.e. co make its [a State's] law applicable to the activites, relations, or status of persons, or the interests of persons in things, whether by legislation, by executive act or order, by administrative rule or regulation, or by determination of a court’ (s 401 (2). Jurisdiction to adjudicate under which a State has authority ‘to subject persons or things to the process of its courts or administrative tribunals, whether in civil oor criminal proceedings, whether or not the state is a party to the proceedings 4010). Jurisdiction to enforce under which 2 State is empowered to ‘induce or compel compliance or to punish noncompliance with its laws or regulations, whether tdirough courts or by use of executive, administrative, police or other non-judicial action’ (s 401(6)) Jurisdiction is an aspect of State sovereignty which relates to the legislative, executive and judicial competence of a State. The distinction between these three types of competence is of importance when determining the limit of 2 State's jurisdiction. The governing principle with regard to the jurisdiction is that one State cannot take measures on the territory of another State by way of enforcement ofits national laws without the consent of that other State, For example, a person may comunit an offence in England and then escape to Brazil. The English courts have jurisdiction to try him, but the English police cannot enter Brazilian territory and arrest him. If they did, this would be contrary to the well established rule of international law that one State may not commit acts of sovereignty on the territory of another State, So persons may not be arrested, police investigations may not bbe mounted and summonses may not be served on the territory of another State except ‘with consent of that other State or under the terms of a treat. However, under customary law of the sea a State has the right of hot pursuit, ie. the right to pursue a fleeing foreign ship on the high seas if that State has good reason to believe that the foreign ship has violated its laws and regulations in the circumstances ‘where the hot pursuit commences when the foreign ship, or one of its boats, is within the internal waters or the territorial sea of the pursuing State and continues uninterrupted conto the high seas? Under Article 111 of the 1982 UN Convention on the Law of the Sea (LOCS) the right of hot pursuit has been maintained and extended in that pursuits may Degin not only in internal waters or the territorial sea but aso in the contiguous zone, the ‘Exclusive Economie Zone (FEZ), archipelagic waters or waters above the continental shelf. ‘The right co undertake hot pursuit is given to warships or military aircraft or specially authorised governmental ships and planes but is subject to the condition that prior to the chase a visual or auditory signal to stop has been given to the foreiga ship, ata distance 2 het Ae’ Ca (1948) 3 RIAA 1609 3 1802 UNTE 396,JURISDICTION czabling the signal to be seen or heard. The right of hot purslt ends when the fleeing ship ‘enters the territorial waters of its own State or ofa third State The necessity of exercising jurisdiction in an international context arose when the intemational community of States had to deal with troublesome problems of penal Jurisdiction. In 1935 the Harvard Law School conducted an extensive study on jurisdiction in the light of, on the one hand, the increasing need for co-operation between States and, (on the other hand, problems arising from conflicts between different States which wanted to exercise their jurisdiction to prosecute the same criminals 36 each other* The Study resulted in the Draft Convention on Jurisdiction with Respect to Crime which has been accorded high standing in doctrine. It identified five traditional bases upon which a State 55 allowed to regulate an individual's conduct occurring wholly or partially beyond its borders, They are: the territoriality principle; the nationality principle; the protective principle the passive personality principle; the universality principle, Of these, according to the Harvard Draft Convention, the principles most widely accepted ‘were territoriality and nationality. The Harvard researchers also found evidence in Sate practice for the protective and universality principles. Although some evidence of passive Personality was apparent, the researchers were of the opinion that this was insufficient to bring it within the ambit of customary law. ‘This chapter deals mainly with jurisdiction to prescribe, Le. concerning the geo graphical reach of national laws. Jurisdiction to prescribe must fit within one of the five Principles of jurisdiction set out in the 1935 Harvard Draft Convention, Obviously, State may rely on more than one of these principles and usually does this when asserting jurisdiction in any particular case. Tes important to note that despite the fact that jurisdiction is mainly concemed with criminal matters, ome States have extended it to other matters. n particular, the US, using slobalisaton as & pretext, has extended its right to exercise jurisdiction outside the 2ational territory to defend its economic interests and national security, With regards to cconomic matters the US now exercises jurisdiction over antitrust cases and transnational securities transactions (in particular transnational securities fraud, such as insider trading) Further, in respect of obtaining documents or evidence which is located abroad, bat relevant to proceedings taking place in the US, the US courts (instead of relying on international co-operation based on the Hague Convention on Taking of Evidenice Abroed { Civil and Commercial Maters), believing that international co-operation based on {international treaties is insufficient to protect the rights ofthe plaintiff, order the defendant to produce evidence under threat of ubpe. Aggressive assertion of jurisdiction by the US to defend its national security is exemplified by its so-called secondary boycotts. These are ‘ffected by US legislation probibiting foreign companies which operate outside the US, 4 The Rese io nematona Lew of th Hard ta School.rstion wth Respect o Came (1998) 29 AL (Spec Supplement 5 Duis Cas & Manon tem Ler London: Soe & Maxwell th en, 2004, 266