The If, How, and When of Criminal Jurisdiction – What is Criminal Jurisdiction Anyway?

Dan Helenius

doi:10.15845/bjclcj.v3i1.831

Abstract

This article analyses the legal phenomenon of criminal jurisdiction. This is done by examining the concept of criminal jurisdiction on different levels and by posing different questions. Criminal jurisdiction first and foremost entails a claim on the right to punish by the state, which can be expressed as a claim on penal authority. When a state claims penal authority, it claims a right to penalize and punish certain behaviour not only in relation to individuals, but also in relation to other states. Since a state’s claim on criminal jurisdiction brings the sovereign interests of other states to the fore, this claim must be in accordance with standards of international law. As a general rule, the state establishes its penal authority through the scope of application of its national criminal law. However, it is also conceivable that a state lays claim to penal authority through the use of other than national criminal law, e.g. foreign or supranational criminal law. The fact that a certain act falls within the penal authority of a state does not, however, categorically imply that the state must or should enforce its penal authority. Since the penal authority of states frequently overlap, the question of whether or not a state actually should attempt to enforce its penal authority in practice always requires further deliberation and balancing of interests.

Highlights

Most lawyers and laymen alike would probably claim to have at least some idea as to the meaning of the concept of jurisdiction
I have argued that criminal jurisdiction first and foremost entails a claim on the right to punish by the state, which can be expressed as a claim on penal authority
Since a state’s claim on criminal jurisdiction brings the sovereign interests of other states to the fore, this claim must be in accordance with standards of international law

Summary

Introduction

Most lawyers and laymen alike would probably claim to have at least some idea as to the meaning of the concept of jurisdiction. If we accept that jurisdiction is a question that in some way falls within a normative framework regulated by international law, every national claim to jurisdiction must accord with standards of international law.[11] In other words, on the international level, penal authority entails a subjective right to punish (ius puniendi) in the sense. Executive jurisdiction in its turn concerns the activities of authorities when exercising their powers to enforce and ensure observance of the law, e.g. through the use of coercive measures.[19] Contrasting these aspects by the character of law they touch upon, the first component addresses an issue of substantive criminal law while the second and third components address issues of procedural law.[20] On the legislative level, the state establishes its claim to penal authority through prescriptive jurisdiction.

The national level

The international level

Principles of jurisdiction

Conclusion