Concept Of Jurisdiction Research Articles

‘Between the Devil and Deep-Blue Sea’: Comparing the Extraterritorial Application of the ECHR and the ICCPR in the Protection of Migrants at Sea

The concept of jurisdiction is often said to encapsulate the very essence of human rights “qua normative relationship between rights holders and institutions as dutybearers” (Besson, 2012; 860). Twenty-first century human rights jurisprudence has highlighted one of the most contentious issues in relation to jurisdiction: the limits that human rights place on State behaviour outside national territory. In the context of migration, the extraterritorial application of human rights is a particularly critical concern. Loss of life on the high seas, refoulement at sea, and the striking systematic ineptitude of search and rescue operations by European countries have placed the debate on extraterritoriality at the heart of the human rights discourse on migrants and refugees. This Paper will compare and contrast extraterritoriality at the European Court of Human Rights and the Human Rights Committee (HRCttee), in order to put their jurisprudence into perspective and assess the current state of the law. A functional account of jurisdiction will be supported, whereby the State should protect human rights wherever in the world it operates, and whenever it can reasonably do so. Through a comparative analysis, I will argue that the principles of universality and effectiveness render extraterritorial applicability a necessary doctrine in human rights law. By juxtaposing the ECtHR with the HRCttee, I will illustrate the wide acceptance of extraterritoriality in the migration context, highlight the needs for improvement in future jurisprudence, and justify the functional approach to human rights protection that this Paper advocates.

International experience in regulating of the pre-judicial investigation bodies jurisdictions

The article is devoted to the study of the concept and legal implementation of the institution of the pre-judicial investigation bodies jurisdictions in Ukraine and the legal systems of European countries and the USA.
 Analyzed the approaches to determining responsibility and the peculiarities of the organizational component of responsibility of pre-trial investigation bodies are also described.
 It is noted that the lack of detailed legal regulation of the institution of liability in Ukrainian legislation determines it necessary to search for approaches in scientific doctrine, as well as practical solutions based on the example of existing legal systems of other countries.
 The article analyzes that, similar to the provisions of Ukrainian legislation, the definition of the concept of jurisdiction in various legal systems is quite rare. In addition, the analysis of different jurisdictions indicates the similarity of approaches to understanding the rules of jurisdiction. Similar to the Ukrainian legislation, the aspect of determining and changing responsibility belongs to the powers of the prosecutor’s office.
 It was noted that one of the main differences between pre-trial investigation bodies jurisdiction in Ukraine and in other European countries (Germany, France, and England) and the United States is the presence in Ukraine of institutionally separated subjects, in addition to the police, which are authorized to carry out pre-trial investigations.
 The legal norms that indicate the rules of jurisdiction determine the direction of activity of pre-trial investigation bodies, but unfortunately there is no regulation of the relationship between the investigation and compliance with the relevant jurisdiction. Moreover, the tendency to increase the number of pre- trial investigation bodies requires detailed legal regulation and clear procedural and procedural norms which would provide an opportunity to avoid a conflict of jurisdiction for pre-trial investigation bodies.
 Also was analyzed the European Union experience in solving the problem of the conflict of jurisdictions of bodies that carry out pre-trial investigation of member states. As part of this was described the work of the Eurojust which is authorized to solve problems with the specified conflicts of jurisdictions.
 Separately the article points out the relationship between violations of jurisdiction and the doctrine of «fruits of the poisoned tree» using the case law of the European Court of Human Rights and individual European countries as an example.

Employing the Responsibility to Protect (R2P) to Impose Universal Jurisdiction Regarding Cyber-Terrorism

Objective: the development of wireless technologies and digital infrastructure has radically changed the human habitat, giving rise to a new type of space -a cyberspace. The uniqueness and peculiarities of this environment, including anonymity, boundlessness and problems related to the determination and establishment of jurisdiction, have become a breeding ground for the emergence of a new global threat - cyberterrorism. The latter is characterized by a high level of latency, low detection rate and incomparably greater danger than “real world” crimes. Countering new forms of crime has required the development of universal tools that overcome the limitations of traditional jurisdiction and allow states to prosecute terrorists in cyberspace. Identifying the relevant tools and identifying the political-legal obstacles to their implementation is the objective of this study. Methods: to achieve the set goal the formal-legal method was used to analyze legal sources, including judicial practice, national legislation, and international acts. The doctrinal approach was also used, which allowed, on the basis of scientific works and theoretical constructions, explaining the complexity of the modern phenomena and predicting their future development. This said, the main focus is on criminals to prove their antagonism with humanity in accordance with theoretical views. Finally, the study analyzes the theories of universal and traditional jurisdiction and how they are applied to prosecute terrorists.Results: the paper provides a critical analysis, reviewing and adapting the concept of jurisdiction as applied to a global, borderless and decentralized digital environment (cyberspace) and to the struggle against new forms of terrorism (cyberterrorism). Various jurisdictional models applicable in cyberspace are presented. The author bridges the gap between the main branches of law: international private law and public law by linking, in relation to cyberterrorism, the two theories: the “responsibility to protect” (R2P) theory and the application of universal jurisdiction. The trends of universal jurisdiction development are revealed.Scientific novelty: the study develops the accumulated scientific knowledge while justifying the introduction of foreign jurisdiction in a state territory to prosecute cyberterrorists. It also establishes a link between the theory of universal jurisdiction in private international law and the “responsibility to protect” (R2P) theory in public international law, recognizing the latter as a relevant basis for the introduction of universal jurisdiction over cyberterrorism. Such traditional concepts as sovereignty and jurisdictional independence are reviewed. The gap related to the consideration of cyberterrorism as a crime against humanity in international law is bridged.Practical significance: the implementation of the proposed conclusions will contribute to the strengthening of international prosecution of cyberterrorism and harmonize the international and national legal tools to struggle against this crime.

Territory, Terrain, and Human Rights: Jurisdiction and Border Control Under the European Convention on Human Rights

ABSTRACT In recent years, European states have become creative in developing strategies to curtail international migration while escaping their obligations under human rights law. These strategies aim at stopping migrants before they can enter a state’s jurisdiction, under the argument that states are not bound to their obligations while operating outside their jurisdictional boundaries. This article adopts a geographic perspective to examine the concept of jurisdiction under the European Court of Human Rights (ECtHR), and particularly its nexus with territory. During the last decade, the ECtHR has interpreted jurisdiction to encompass situations where states apprehend migrants outside their borders, thus extending jurisdiction to extraterritorial operations. However, states can circumvent this by manipulating the territorial organisations of their borders to prevent migrants from reaching their territory without directly apprehending them. These strategies include agreements with countries of transit along with other, specific interventions. I take the case of N.D. and N.T. v. Spain as an example of this trend, and of the ECtHR’s failure to make European states accountable. As a solution, I argue that jurisdiction should be interpreted to encompass territoriality as one of its components, and under a definition of territory informed by geographic research, and distinct from its conventional definition under international law.

Exploring pedagogues’ understanding and detection of vulnerability in Danish early childhood education and care

Abstract The conceptualisation of vulnerability among Danish pedagogues in the context of early childhood education and care (ECEC) is framed by both Danish legislation (Dagtilbudsloven, 2020) and key pedagogical concepts such as well-being, learning, development and formation (Ministry of Children and Education, 2020). Employing a phenomenological approach, this study investigated how pedagogues perceive vulnerability through interviews conducted with 15 informants. Drawing on Abbott’s key concepts of jurisdiction, diagnosis, inference and treatment, the collected data are operationalised to discern pedagogues´ different understandings of vulnerability. The findings highlight the inherent ambiguity surrounding pedagogues’ comprehension of vulnerability, closely tied to their primary responsibilities within the ECEC setting, namely, promoting well-being, facilitating learning, fostering development and enabling formation. The implications of the study shed light on the challenges faced by pedagogues in identifying vulnerability within ECEC, which encompasses both “traditional” and “new” understandings. Pedagogues tend to focus on detecting individual factors, such as personality traits and developmental disorders, or contextual factors related to a child’s family background, without considering the institutional context as a potential source of vulnerability production. This study emphasises the importance of re-evaluating current approaches to vulnerability detection in ECEC, particularly with regard to children in vulnerable positions.

Law as Infrastructure of Colonial Space: Sketches from Turtle Island

Heraclitus's words remind us that law and infrastructure have lived in intimate relation, in practice and thought, for millennia. This intimacy is palpable in the context of settler worldmaking where colonial jurisdiction is enacted by constraining, with an eye to replacing, Indigenous jurisdiction. Here, the authority to have authority is often asserted in practice through violent attempts to control connectivity and movement. To this day, imperial powers assert jurisdiction over space through infrastructures that enhance or inhibit the motion of goods and people, like railroads, pipelines, border walls, and police.2 This Essay investigates the co-production of colonial law and infrastructure on Turtle Island—an Indigenous name for the continent of North America, which already highlights a different conception of jurisdiction and law through its anchor in creation stories. The brief sketches that follow emphasize the co-constitution of law and infrastructure, yet they also propose a relationship that exceeds proximity or metaphor. Law operates through the ordering of extension, and in this sense, can productively be thought of infrastructurally, as “the movement or patterning of social form.”3 This Essay argues that approaching law infrastructurally foregrounds the contingency of seemingly solid structures, including centrally that of settler jurisdiction.

Rethinking ‘Jurisdiction’ in International Human Rights Law in Rescue Operations at Sea in the Light of AS and Others v Italy and AS and Others v Malta: A New Right to be Rescued at Sea?

AbstractIn January 2021 the Human Rights Committee determined that Italy and Malta had both failed to protect the right to life of more than 200 migrants who perished in a shipwreck in 2013. The Committee tackled for the first time the question of extraterritorial application of the International Covenant on Civil and Political Rights to persons in distress at sea. While finding the decision against Malta to be inadmissible, the Committee engaged in a significant analysis of the concept of jurisdiction in both decisions. This article analyses how the decisions interpret the concept of ‘jurisdiction’ and juxtaposes this analysis against the approaches taken in other international legal regimes. The article then theorises on the impact of these two decisions in helping to crystallise a new ‘right to be rescued at sea’.

Features of determining the territorial jurisdiction of court cases under martial law

The article is devoted to the peculiarities of determining the territorial jurisdiction of martial law, because on February 24, 2022 the Law of Ukraine “On Approval of the Decree of the President of Ukraine” On martial law in Ukraine “in connection with the military aggression of the Russian Federation against Ukraine was imposed martial law, which continues today. The issues of determining the territorial jurisdiction of court cases were covered in the works of G. Shershenevich, I. Pobirchenko, V. Shcherbina, V. Belyanevich, D. Prityka, V. Chernadchuk, M. Smokovich, V. Sukhonos, V. Nagrebelny, O. Kharitonova, I. Balyuk, but in the context of martial law, they acquired a new meaning. The purpose of the article is to highlight the peculiarities of determining the territorial jurisdiction of court cases under martial law. Research methods: the following methods are applied. Formal-logical – for the formation of new concepts, their classification; eliminating inaccuracies and contradictions, etc. Formal dogmatic, or legal method, based on the use of rules of formal logic for knowledge of law, is a traditional, inherent in legal science, since it proceeds from its nature. Its essence is in the formulation and disclosure of legal concepts, the construction of legal structures, and clarification of the actual content of the law. At all stages of scientific research the dialectical method is used. This method determines the paths of any scientific study. It helps to explore all the phenomena in the relationship, interdependence. Comparative method involves comparing single-order legal concepts, phenomena and processes to establish similarities and account for differences between them. The article analyzes the provisions of current legislation, the main scientific approaches to defining the concept of jurisdiction of court cases, as well as case law in this area. In addition, bills №7315 on amendments to the Law of Ukraine “On the Judiciary and the Status of Judges” on martial law or state of emergency and №7316 on amendments to the Code of Administrative Procedure of Ukraine, the Civil Procedure Code of Ukraine and the Commercial Procedure Code of Ukraine are considered (concerning the administration of justice in a state of war or emergency). As a result, it is concluded that digitalization issues related to determining the territorial jurisdiction of martial law are relevant and practical, as they promote the implementation and protection of citizens’ rights and establish effective mechanisms for wartime justice. Because the courts are objects of critical infrastructure, and therefore the implementation of justice in our country does not stop and the right of citizens to judicial protection can not be limited. Key words: court proceedings, territorial jurisdiction, martial law

The Legality and Scope of Universal Jurisdiction in Criminal Matters

Abstract Universal jurisdiction in criminal matters has been a hot topic for many decades already. In discussions on its legality and scope, waters are usually muddied by the inclusion of unrelated issues or by the use of inappropriate methodologies. The purpose of this article is to discuss the legality and scope of universal jurisdiction, mainly by clarifying the concept and addressing the main misunderstandings characterising the discussions on its legality. The main claim is that objections to the legality and to the extended (unlimited) scope of universal jurisdiction in criminal matters are based on two confusions/conflations of notions. Firstly, this paper demonstrates that the so-called conflicts between the exercise of universal jurisdiction and general norms of international law are only imaginable in a framework that misrepresents/misunderstands the concept of jurisdiction itself by conflating the notions of jurisdiction to prescribe and jurisdiction to enforce. Secondly, it argues that the view which limits the scope of universal jurisdiction to a few crimes fails to clearly distinguish states’ international duties and rights in criminal law matters. In terms of methods, the paper takes the (traditional) view that states are allowed to do everything international law does not prohibit.

Health social work with migrants: Constructing a specialist profession

In 2016–2017, a large Swedish hospital introduced a mobile team of asylum social workers to work with asylum-seeking and undocumented patients. Based on interviews with the asylum social workers and the theoretical concepts of jurisdiction and professional discretion, this study explores how they experienced their work and developed their specialist competence and strategies for health social work with migrants. The findings show that they not only relieved staff and supported patients and relatives but also systemised the knowledge about health social work with migrants and created a professional specialty with a socially, rather than medically, defined group of patients.

DETERMINING THE APPROPRIATE FORUM BY THE APPLICABLE LAW

AbstractThe concepts of jurisdiction and applicable law have been traditionally regarded as separate inquiries in private international law: a court only considers the applicable law once it has decided to adjudicate a matter. While such an approach still generally applies in civil law jurisdictions, in common law countries the concepts are increasingly intertwined. This article examines the relationship between jurisdiction and applicable law in two key areas: applications to stay proceedings on the ground of forum non conveniens and to enforce foreign exclusive jurisdiction agreements. While courts generally apply the principle that jurisdiction and applicable law should coincide where possible, there are circumstances where a court may retain jurisdiction despite a foreign governing law or may ‘trust’ a foreign tribunal to apply the law of the forum. This article seeks to establish a framework by which courts may assess the role of the applicable law in forum determinations.

Выбор компетентного суда как предпосылка права на обращение в арбитражный суд

The choice of a court whose competence includes the consideration of an economic dispute is one of the prerequisites, in the presence of which the subjects of business relations are granted judicial protection. The purpose of this study is to establish general and additional criteria by which the competent court is determined. As a result of the conducted research, it was found that in connection with the adoption of Federal Law No. 451-FZ dated 28.11.2018 "On Amendments to Certain Legislative Acts of the Russian Federation", the concept of jurisdiction was excluded from the agro-industrial Complex of the Russian Federation. Chapter 4 of the APC RF on competence contains rules defining the general and special competence of the arbitration court. The rules on general competence contain the main and additional criteria for the competence of the arbitration court. The rules on special competence determine the jurisdiction of an economic dispute. To achieve this goal, the views of scientists on the criteria for attributing an economic dispute to the jurisdiction of an arbitration court have been studied. The article analyzes the amendments made in 2019 to the Arbitration Procedure Code of the Russian Federation, the legal positions of the Supreme Court of the Russian Federation and the Supreme Arbitration Court regarding the competence of the arbitration court, the practice of the arbitration courts of the Russian Federation. As a result of the conducted research, it was found that in connection with the adoption of Federal Law No. 451-FZ dated 28.11.2018 "On Amendments to Certain Legislative Acts of the Russian Federation", the concept of jurisdiction was excluded from the agro-industrial Complex of the Russian Federation. Chapter 4 of the APC RF on competence contains rules defining the general and special competence of the arbitration court. The rules on general competence contain the main and additional criteria for the competence of the arbitration court. The rules on special competence determine the jurisdiction of an economic dispute.

THE WRIT OF PROTECTION: FROM PROCEDURAL TO SUBSTANTIVE RIGHTS AND BETWEEN CIVIL AND COMMON LAW

The article aims to deal with important aspects regarding special instruments used to vindicate fundamental rights and guarantees (called writ of protection ). In Brazil, this writ is usually called mandado de segurança. However, there also are other possible tools with similar objectives (not only in Brazil but in all of Iberian America). Despite the variations between the denominations found in different countries, such instruments usually seek similar objectives. As it will be demonstrated, all the species of the writ of protection can be related to an extended concept of jurisdiction and due process of law. In addition to that, these instruments can facilitate the implementation of rights counterbalancing formal inefficiencies and moderating a rigid civil law , as we will see in the present paper

The international law of jurisdiction: A TWAIL perspective

AbstractThe concept of jurisdiction is a relatively undertheorized category of international law. Mainstream international law scholarship advances an ahistorical and asocial account of the rules of jurisdiction in international law. The present article contends that any serious understanding of the categories and rules of jurisdiction, in particular that of extraterritorial jurisdiction, calls for deep appreciation of the evolving material structures over time. It argues that the key factors that have influenced the evolution and development of the doctrine, rules, and practices of jurisdiction are the emergence of the modern state, capitalism, and imperialism. In order to appreciate this contention there is a need to undertake on the one hand a genealogical analysis of modern state and capitalism and on the other hand problematize the categories ‘territory’ and ‘extraterritorial’. The internal relationship between capitalism and imperialism has meant that, despite the territorial organization of the international system, a process of harmonization of legal rules has taken place across geographical spaces in both colonial and postcolonial eras. The outcome is a critical loss of policy and legal space for nations of the Global South. In the colonial era the outcome was achieved through legislation in the instance of colonized nations and through capitulation regimes in the case of semi-colonies. The strategy of advanced capitalist states in the postcolonial era for achieving harmonization of laws has been multi-layered and multi-dimensional. The article concludes by touching on two models of reform of the rules and practices of jurisdiction viz., liberal and subaltern internationalism.

Rules of jurisdiction in the new Hungarian private international law

AbstractOn 1 January 2018, a new act entered into force in Hungary. This act is the new code of private international law in Hungary. The basic purpose of this article is to present the jurisdictional rules of the new law. In the description I discuss how the new act differs from the rules of the old code. In addition, I focus on international and European trends in private international law. I also examine the extent to which the new Hungarian code complies with these trends, as well as discussing the peculiarities of the Hungarian regulation. The new Code uses the concept of jurisdiction as a rule for the ‘international distribution’ of cases and in the sense of public international law. Therefore, I also address in this article the definition of jurisdiction and other conceptual issues, the doctrines of immunity and the description of the jurisdictional system of the Code. I present the relationship between international, European and Hungarian rules which are relevant in private international law. In addition, I provide an overview of the novel system of jurisdictional rules in the Code.

Ekstrateritorijalna nadležnost u praksi evropskog suda za ljudska prava i savremeni izazovi

The paper analyses the concept of extra-territorial jurisdiction as envisaged by the Euroepan Convention on Human Rights (ECHR). This concept of jurisdiction implies an answer to the question whether a person outside the territory of a state can be considered to be under its jurisdiction, and thus whether the ECHR Party can violate any of their proclaimed rights. Initially, the author briefly discusses the concept of extra-territorial jurisdiction in The European Court of Human Rights case law (ECtHR). The author comes to the conclusion that the Court's jurisprudence is not clear or consistent. As a result, the article examines three alternative approaches to extra-territorial jurisdiction that are clear, reality-based, and human rights friendly. These three approaches involve the test of negative and positive obligations, the functionality test, and the control of rights test. In addition, the author considers three contemporary challenges that the ECtHR may face in the fields of migration, 'green' issues, and the use of modern technologies. The author claims that the ECtHR's understanding of jurisdiction is insufficient for modern challenges. The alternative approaches could be a viable answer to such issues.

The Norms of Roman Law and the Concept of Jurisdiction in the French Coutumiers of the 13th Century

The article is devoted to the analysis of the earliest North French collections of customary law of the 13th century: the “Coutume de Touraine-Anjou”, the “Usage d’Orlenois”, the “Conseil à un ami” of Pierre de Fontaines and the “Livre de jostice et de plet”. These codes practically did not attract the attention of modern researchers, but they differ in one curious feature: they have an impressive number of borrowings from the Roman law, or rather from the legislation of Justinian (483—565). The main task of the article was an attempt to understand what purpose these inserts served, how the authors and the compilers of the coutumiers worked with this material and, finally, what relation the Roman legal norms had to the territory to which the customary law of a particular area of the French Kingdom applied. According to the author of the article, the references to Roman law appeared in the texts of the Northern French coutumiers precisely because these latter were compiled during the grandiose judicial transformations of Louis IX the Saint and served primarily to settle the relations of the crown with local lords in the sphere of jurisdiction. The norms of the Roman law not only filled in the gaps in the knowledge of the lawyers of the 13th century regarding local legal customs, they also turned out to be extremely useful in order to build a clear “vertical of power” in the French Kingdom, which was entering the era of genuine centralization.

To the Question of Use of the "Jurisdiction" Concept in the International Criminal Law Discourse

On the basis of specific cases of the use of the term jurisdiction in the Russian-language legal discourse and metadiscourse and its equivalents in the English-language and French-language legal discourses and metadiscourses, the meaning of this term in the framework of international criminal law is revealed. The importance of a clear definition of the concept of jurisdiction in resolving matters governed by international criminal law is substantiated, and a definition of the conflict of criminal jurisdictions is given in the light of an appropriate approach to understanding jurisdiction.

António Manuel Hespanha (1945–2019)

António Manuel Hespanha (1945–2019)

Digital technology and changing roles: a management accountant\u2019s dream or nightmare?

Recent developments in digital technology have revitalized interest in the relationship between technology and management accounting. Yet, few empirical in-depth studies have assessed how digital technologies influence the roles of management accountants. This paper builds on the concept of jurisdiction to illuminate the relationship between management accountants, expert knowledge and digital technology. The study identifies and describes competition over jurisdiction between management accountants and other groups of employees. The study describes a shift for divisional management accountants towards narrower roles in their tasks and expectations, while business-oriented roles at group level are found to entail expanding tasks and expectations. In doing so, management accountants are divided into two divergent categories facing different expectations: divisional and group level management accountants. Through a case study in the technology-oriented finance sector, the paper contributes to the debate on the roles of management accountants in a number of ways. First, it describes how digital technology can contribute to narrower and more specialized roles. Second, it describes how digital technology can contribute to competition between professions. Third, it elucidates how digital technology contributes to changes in the behaviour of decision makers, and in their expectations toward, and the involvement of, management accountants. Fourth, it details how the changes contributed by digital technology in the roles of management accountants can act as mediators in the identity-work of management accountants. Finally, it empirically describes the relationships between digital technology and management accountants’ roles.