Exercise Of Jurisdiction Research Articles

Incentivising change to beneficial ownership and open registers—Holding flag states responsible for their fleets and costs of illegal fishing

AbstractWhile efforts to reduce illegal fishing have been underway for some time, market data suggest the volume of illegal fish in the markets is not decreasing significantly. One issue that may be driving this is the difficulty in imposing meaningful sanctions. We discuss an alternative approach aimed at reducing illegal fishing. A State's open register allows relatively unassociated vessels to purchase entry to that register and fly that State's flag. This relationship between the vessel and the flag State is both a financial and legal one. The licensed vessel must comply with laws of the flag State around operations, safety, fishing access agreements, and other regulatory requirements. The flag State must exercise due diligence in the performance of its responsibility to exercise jurisdiction and control over its vessels. The State(s) which has incurred the cost and damages resulting from pursuit, apprehension, and prosecution of the vessel may have a claim for expenses and damages from the flag State if the flag State fails to exercise due diligence. By shifting the costs and harms associated with illegal fishing from coastal States to flag States that fail to exercise jurisdiction and control over the vessels they flag, such flag States may be incentivised to improve oversight over their vessels and join the international effort to combat illegal fishing.

Colonisation at the Poles: A Story of Ineffective Occupation

Abstract This paper examines the legal concept of occupation of territory and its historic application to the Polar regions, to disclose the fallacies at the heart of the colonial projects at both Poles. It also considers how the increasing recognition of non-use value disrupts positivist accounts of occupation. The colonisation of populated lands was justified by European theories of property that insisted that effective occupation required both a psychological and a physical element. The psychological element of occupation requires the sovereign to engage in a legal fiction that it controls the land and exercises dominion over it but this conceit is not shared by Arctic Indigenous Peoples. The physical element of occupation according to the positivist account requires an owner or sovereign to transform the land in some physical manner. The self-serving European legal theories construed the Indigenous relationship with land as a non-relationship and declared it retrospectively terra nullius. According to their own laws, the colonisers declared their own sovereign authority over Indigenous territories, notwithstanding the existing civilisations. However, in the Polar regions, the colonisers themselves did very little in the way of physical occupation or transformation of the vast majority of the lands that they claimed. Colonisers demonstrated occupation through the naming of places, mapping, taking resources, building basic structures for shelter, and applying laws over their own people. But Indigenous Peoples had long been doing all those things in the Arctic. 20th century courts accepted that in territories remote from the colonising claimant with little or no population, the degree of physical occupation and exercise of jurisdiction could be very limited. However, they refused to consider the much longer and more extensive use and management by Indigenous Peoples. In the Antarctic, the territorial claims of the seven claimant states do not pivot on any real physical occupation or transformation of the land at all. This would have been impossible on any scale of significance, given the size and challenging climate of the continent at the time of European discovery. Today, the principles that govern the Antarctic continent favour non-use and a minimisation of impacts. At both Poles, justifications for the exercise of jurisdiction are increasingly based on promises to protect wilderness by minimising human impacts. Sovereignty is demonstrated through non-occupation in a complete reversal of the classical legal theory.

The Protective Jurisdiction Under the Hong Kong National Security Law: Legitimacy and Impact

Abstract The Hong Kong National Security Law is not only applicable in Hong Kong, it has global reach, applying to any breach of its provisions by anyone, regardless of nationality or location. Article 38 of that law expressly states that it is applicable worldwide for offences committed against Hong Kong “from outside the Region by a person who is not a permanent resident of the Region”. Its legal basis is protective jurisdiction, which permits a State to exercise jurisdiction over aliens who have committed an act abroad jeopardising the vital interests of that State. Protective jurisdiction is justified because a State has the right to defend and protect its vital interests. The protection of such interests cannot be left to other States that do not consider such interests to require the protection of criminal law. For these reasons, international law does not impose limits on a State to prescribe rules to assert such jurisdiction. Despite the justification, it is believed that the impact of Article 38 will be limited in practice. It would be difficult for Hong Kong to obtain international cooperation in enforcing this law, given that there are only 19 countries having extradition agreements with Hong Kong (with nine of them having now suspended their agreements) and that it may also require great effort to overcome the legal hurdles, i.e., the extradition refusal grounds, such as the double criminality requirement, non-extradition of nationals of the requested countries, and the political offence exception contained in these extradition agreements.

Preventive measures to ensure the sea fishing regime

Marine areas that contain living resources are subject to international protection; their species, one of which is the maritime economic zone, have a special legal status: they can be marine - fishing and territorial areas of general
 purpose. The legislation of Ukraine actualizes the problem of environmental protection, creation of conditions of inviolability of law enforcement activity of a set of norms of various branches of law.
 The general causes and conditions of environmental crime are in the system of contradictions that arise from the interaction of man, society and nature. Their essence is that society, being part of the biosphere, resists the ecosystem due to limited opportunities for nature.
 The growth of environmental crime is facilitated by the shortcomings of current legislation and its protection by relevant government agencies, the lack of mechanisms for its effective implementation.
 Within the zones of general definition, the laws of Ukraine apply to all offenses. Such a zone is recognized as the territory of the respective state and the laws apply to persons who have committed the relevant offenses. In this case, there may be peculiarities in the application of laws that contain a blanket disposition. An example is environmental offenses, the responsibility for which is based on other regulations. In the conditions of such zones, the corresponding normative acts have specifics which distinguish their application in the territory of other states.
 Within the exclusive (marine) economic zone, coastal states have the right to carry out exploration, development, management of natural resources, to exercise jurisdiction over the conservation of the marine environment, to conduct marine research

Counter-Arguments to the Claims over the Jurisdictional Expansion of UNCLOS Part XV

Recently, the compulsory dispute settlement system of UNCLOS has been at the centre of controversies and debates among academics. Many authors have criticised judicial decisions concerning the rules of Part XV of UNCLOS that the courts and tribunals seised of jurisdiction following the rules of Part XV have vigorously attempted to expand the purview of compulsory jurisdiction beyond those conferred by the Convention. Among many other grounds of the jurisdictional expansion claims, this paper mainly focuses on the arguments based on Part XV tribunals’ case-law of article 293 and the exercise of incidental jurisdiction. Within past proceedings under UNCLOS Part XV, tribunals have addressed the issues that are not directly regulated by the provisions of the Convention by virtue of either article 293 or their incidental jurisdction. As these cases showed the tribunals’ exercise of jurisdiction beyond the four-corners of UNCLOS, the claim of jurisdictional expansion appears to be a correct appraisal of judicial practice under Part XV. However, this paper calls such criticisms into question - What if the case-law of Part XV tribunals turns out that they are not actually ‘expanding’ the purview of their jurisdiction? On this basis, the purpose of this paper is to raise counter-claims to these so-called ‘jurisdictional expansion’ claims. Accordingly, against the recently raised jurisdictional expansion claims, three major counter-arguments will be made – 1) the ambiguity of the criteria for determining whether the jurisdiction has been expanded; 2) the necessity of broadening the viewpoint; and 3) the possibility of different interpretations concerning the role of Part XV tribunals. Hopefully, these counter-arguments may provide a new approach to the study on the role of Part XV tribunals and their contributions to the development of the dispute settlement system of UNCLOS.

The Role of UN Documentation in Shaping Narratives at the International Criminal Court and the Implications for the Rights of the Accused

Abstract The International Criminal Court (icc) is an independent treaty-based international organisation acting in close cooperation with the United Nations (UN). To that end, organs of the Court have extensively relied on UN documentation in proceedings. These materials have been used to support grounds for the exercise of jurisdiction, demonstrate legal elements of crimes, and prove matters of fact. In recent practice, including in the situations of Palestine, Bangladesh/Myanmar, and Mali, UN materials have been used to establish legal and factual matters on the primary basis that they represent the ‘views of the international community’. This paper examines the ways in which Court organs rely on UN documentation in icc proceedings. It assesses the interplay of such information with rights of the accused. The paper concludes that in order to safeguard its credibility and the fairness of the proceedings, the Court should adopt specific guidelines relating to the evaluation of and admissibility of UN materials.

Resolving conflicts: establishing forum non conveniens in a new Hague jurisdiction convention

In 1992, the Hague Conference on Private International Law (HCCH) commenced the Judgments Project with the aim of delivering a convention harmonising rules of jurisdiction and recognition and enforcement of judgments. Despite the ambition and promise the project held, the first major attempt at delivering a convention, the 2001 Interim Text, was unsuccessful after it failed to gain consensus among the Conference’s Member States. The HCCH scaled back the Judgments Project to focus work on the 2005 Convention on Choice of Court Agreements and the 2019 Convention on the Recognition and Enforcement of Foreign Judgments. However, the issue of jurisdiction has not been forgotten, with the Hague having recently established a Working Group to begin drafting provisions for a fresh attempt at the subject which hopefully will succeed where the Interim Text did not. The aim of this article is to explore the issue of how the proposed convention shall address conflicts of jurisdiction in international litigation. A conflict of jurisdiction will typically arise where the same proceedings, or related ones, come before the courts of several fora, or in one forum which considers another forum to be better placed to adjudicate the dispute. One solution to such conflicts is the, originally Scottish, doctrine of forum non conveniens, which allows a court discretion to decline to exercise jurisdiction on the basis that the appropriate forum for the trial is abroad or the local forum is inappropriate. This article argues for the inclusion of a version of forum non conveniens in the proposed jurisdiction convention to settle these conflicts when they arise. However, as there are many interpretations of what makes one forum more or less appropriate to hear a case than another, this article tackles the issue of how such a principle could be drafted to achieve consensus at the Hague Conference. Much of this analysis is based on the original 2001 Interim Text, and upon more modern cross-border agreements which utilise forum non conveniens.

Discretion in the exercise of jurisdiction in conflict cases in Nigeria

This article analyses the jurisprudence of discretionary jurisdiction in conflicts cases in Nigeria to interrogate the considerations of theory and practical policy (or lack thereof) that, in the authors’ view, have influenced the development of the relevant law and procedure. The analysis includes an assessment of whether too much or too little weight has been given to some theories or policies. The article discusses discretionary jurisdiction in three main situations: (1) where the defendant is outside the jurisdiction of the forum court and, therefore, must be served ex juris; (2) when the court is invited to decline jurisdiction based on the doctrine of forum non conveniens; and (3) when there are parallel proceedings in a foreign jurisdiction. A key finding is that discretionary jurisdiction in Nigeria is highly under-theorised in the jurisprudence. Nigerian intellectuals have, for their part, not given the subject adequate consideration. There is, therefore, a dearth of literature to draw on. The article sifts through the rules of court and court decisions to discover the theoretical and practical considerations for the courts’ exercise of discretionary jurisdiction in the three situations mentioned.

Between Consent and Coherence: Incidental Questions in an Imperfect World

International courts and tribunals must maintain a delicate balance between consent and coherence when they consider incidental questions as part of their dispute settlement function. There are compelling reasons, in the contemporary world of unprecedented complexity and interdependence, to instill coherence into dispute settlement procedures, so as to avoid the denial of justice. The exercise of jurisdiction over an “incidental question,” however, must not be forced to the point that it undermines the willingness of states to give their consent to such procedures.

Jurisdiction for intellectual property in Nigeria: the Supreme Court may be final but not infallible

Jurisdiction is the fulcrum of any court or legislature. Jurisdiction for statutory intellectual property in Nigeria is vested in the centre in a federal system of government where legislative and adjudicatory powers are shared between federal and constituent governments. Historically, the jurisdiction of the Federal High Court (FHC) and State High Court (SHC) has been notoriously ambivalent in many issues – passing off being one of them. The passing off of intellectual property has been particularly problematic because of its common law origin and nature especially in the absence of a federal statute on it. This article reviews three different decisions of the Nigerian Supreme Court over time and argues that the Supreme Court may not have considered the ramifications of the different constitutions in those cases. It argues the position that the FHC should not exercise jurisdiction over passing off of intellectual property (common law tort) until there is a federal statute creating a substantive law on passing off. The jurisdiction lies with the SHC. It supports this position with the 1999 Constitution, state laws on torts as existing laws and the experience of Canada and the United States, and hopes the Supreme Court will, at the earliest opportunity, overrule or correct itself; or that the legislature will intervene.

Human Trafficking in the Context of Global Migration: Modern Manifestation of De Facto Slavery, Servitude and Forced or Compulsory Labour

Abstract In recent years there has been a significant increase in trafficking in human beings as a global phenomenon. COVID-19 pandemic created conditions that increased the number of persons who were vulnerable to human trafficking and disrupted current and planned anti-trafficking initiatives. Human trafficking treats human beings as commodities to be bought and sold and put to forced labour often for lower or no payment. This constitutes a modern form of de facto slavery, servitude and forced or compulsory labour. This article provides an overview of international law on human trafficking and considers response to human trafficking in Africa. It further considers whether diplomats can be held accountable for exploitation of migrant domestic workers in receiving States. It further examines whether diplomatic immunity can be used as a bar to the exercise of jurisdiction by domestic courts and tribunals of a state which hosts the diplomat (the ‘receiving state’) in cases of employment of a trafficked person by a former or serving diplomat. It ends by considering whether trafficked persons should be held to bear individual criminal responsibility for crimes they have committed (or were compelled to commit) in the course, or as a direct consequence, of having been trafficked. Such crimes may include unlawful entry into, presence or residence in another country of transit or destination, working without a work permit, sex work, and use of false identity/false passport.

Statutory inconsistency and jurisdictional conflict between the Controller of Patents and the Competition Commission of India

The Indian regulatory system has long been plagued with statutory overlaps and jurisdictional conflicts, particularly between Competition Commission of India (CCI) and other sectoral regulators. The Supreme Court in 2018 sought to balance sectoral technical expertise with the mandate of the competition regulator. In doing so, the court developed a novel ‘two-step’ test wherein the sectoral regulator exercises the primary jurisdiction and determines the jurisdictional facts, only after which the competition regulator is allowed to exercise jurisdiction. In the aftermath of this decision, a 2016 judgement which had exhaustively demarcated the powers of the Controller of Patents and the CCI was challenged on the basis of the novel two-step test. In 2020, through this attempt at revision, the Single Judge ruled in favour of the validity of the 2016 judgement and awarded jurisdiction to CCI in preference to the Controller. In this paper, the author examines a series of cases, along with the statutory construction and the legislative history of the Patents Act, 1970 and the Competition Act, 2002 in order to conclude the jurisdictional conflict. The paper concludes that the Controller, within the scope of its powers, is incapable of addressing the anti-competitive conduct of a patent holder. The Patents Act, 1970 was drafted with the cognizance that an independent commission shall be required for the regulation of anti-competitive conduct.

"if other arrangements can reasonably be made": the interior architecture of Children's Courts in New Zealand in the 1930s

In 1925, the Child Welfare Act was passed. The Act introduced the idea of the Children's Court as a space "separate from the premises in which another Court usually exercises jurisdiction" (s28). In 1927, an amendment to the Act provided further elaboration, clarifying that: "persons attending any sittings of a Children's Court shall not be brought into contact with persons in attendance at any other Court." To achieve this the amendment stipulated that: "for this purpose the sittings of the Children's Court shall not, except in cases where no other suitable room is available, be held in any room in which any other Court ordinarily exercises jurisdiction; nor shall a sitting of the Children's Court, if held in the same premises as any other Court, be held at a time when such other Court is sitting, if other arrangements can reasonably be made" (s18(1)). This paper investigates the locations, and interior architectures of Children's Courts in New Zealand in the 1930s. It aims to establish whether or not the interior architecture of Children's Courts, with their legislated requirement to be physically distinct from the rest of the court system, was also distinct, and in what ways children were specifically accommodated for in this interior architecture.

Methodology of the National Maritime Potential Quantitative Assessment

This article analyses methodological issues which emerge in case someone attempts to make a comparative quantitative analysis of the overall maritime potential possessed by various countries. The author suggests possible solutions for those problems and also proposes a system, which can help to make an assessment of countries’ capabilities to have control of the sea, to exercise jurisdiction over the sea zones and to use the sea for a variety of their purposes. This system forms the index of maritime power of a nation, which is an overall quantitative expression of these capabilities. The overall index is based on four sub-indexes: maritime resources, maritime instruments, navy, maritime activities.

Contesting immunities in the International Criminal Court: an analysis of the rulings of the Pre-Trial Chambers and the Appeals Chamber in Bashir Case and its outcomes

This article examines the rulings from International Criminal Court’s Pre-Trial Chambers and Appeals Chamber regarding the relationship between the law of immunities, in particular heads of state immunity, and the exercise of jurisdiction by international criminal courts in the context of the Bashir Case. It does an analysis of these decisions, highlighting the manner through which the chambers engaged with the legal reasonings presented especially by states. The goal is to identify the different forms of contestation from the actors in the field of international criminal law that were triggered by these rulings in a way that it is possible to make a correlation amongst the degree of engagement of the Chamber with outside arguments and the reaction it provoked. The article concludes that the different ways the Court deals with external actors and their reasonings will generate distinct kinds of responses, meaning that if these actors feel that the rulings are disregarding their arguments a more productive type of contestation can become an objection to the authority or legitimacy of the Court.

The ICC, Self-created Challenges and Missed Opportunities to Legitimize Authority over Non-states Parties

Abstract The Prosecutor of the International Criminal Court (ICC) has consistently embroiled the Court in situations involving allegations of the commission of crimes by non-state party nationals on the territory of states parties. For the most part, the Prosecutor has assumed the jurisdiction of the Court over non-state party nationals is well-founded by reference to the provisions of the Rome Statute, without any examination as to why or how those provisions bind non-states parties nationals. Where the Prosecutor has specifically sought a legal ruling from the Chambers on the exercise of jurisdiction over non-state party nationals, the Chambers have failed to address the legal issues in a consistent, persuasive and coherent manner. Notably, the Chambers have seen fit to ignore the legal issues as non-issues, sought to sidestep properly addressing non-states parties’ objections by grounding jurisdictional authority in an asserted objective legal personality and further relied upon a conceptualization of the Court as an institution that acts on behalf of the international community as a whole to expansively interpret its scope of jurisdiction, without addressing the potential legal consequences for non-states parties. In so doing, the Chambers have significantly infringed the legal rights of non-states parties without persuasively establishing the legal authority to do so. The import of this failure on the part of Chambers has had detrimental consequences for the Court. The lack of legal clarity surrounding the Court’s relationship with non-state party nationals has emboldened non-states parties’ objections of illegitimacy and muted the effectiveness of the Court’s responses to those objections. The Court is unable to reference persuasive judicial rationales in response.

A Satisfactory Answer? The Enrica Lexie Award and the Jurisdiction Over Incidental Questions

This article situates the Enrica Lexie award’s stance on the Tribunal’s jurisdiction over the marines’ immunity within the broader debate on the scope of the jurisdiction of international courts and tribunals over incidental questions. After illustrating the Tribunal’s approach to the question at hand, the paper appraises those instances where an international tribunal with limited jurisdiction can decide issues and apply rules that are “external” to its principal jurisdiction. It then focuses on the question of the jurisdiction over incidental issues, which is the most debated avenue for an international tribunal to engage with substantive matters falling outside the scope of the tribunal’s ratione materiae jurisdiction. Finally, the Tribunal’s approach in the Enrica Lexie award is critically assessed against the above debate. It is submitted that, although the award arguably put an end to the longstanding dispute between India and Italy, the Tribunal’s reasoning does not seem to be in line with the conditions for the exercise of jurisdiction over incidental questions as roughly sketched in relevant case law.

The Enrica Lexie Incident and the Status of Anti-Piracy Security Personnel on Board

Abstract This article focuses on a specific issue that emerged in the Arbitral Award on the Enrica Lexie case delivered in May 2020. The dispute involved Italy and India in relation to the killings of Indian fishermen by Italian marines in the waters outside India. The incident raised several legal issues concerning the application of the law of the sea, the legal determination of anti-piracy actions by States and jurisdictional immunities. The purpose of this article is to focus on one specific issue that emerges from this case: the uncertain legal status of security personnel deployed on private vessels in relation to anti-piracy protection. The first part of the article shall consider the status of military personnel deployed on merchant ships for anti-piracy protection. The problem is central to the matter because, depending on the definition of their status, limitations on the exercise of jurisdiction by other States may emerge. The second part of this article discusses more broadly the status of military and private security personnel in actions that could be defined as ‘international policing or security’ activities, which should be better clarified through better international cooperation, exchange of information and clear rules. A more defined legal setting for anti-piracy activities would prevent possible future disputes in similar cases. Furthermore, it would be useful to have clearer rules that could be applied also to face other types of crimes that occur on the sea.

Immunities of State Officials and the “Fundamentally Different Nature” of International Courts: the Appeals Chamber Decision in the Jordan Referral re Al-Bashir

On 6 May 2019, the Appeals Chamber of the ICC found that Al Bashir could not benefit from head of State immunity because such rule had never emerged in customary law in relation to international courts, which are of a “fundamentally different nature” as opposed to domestic courts. This article investigates the merits of this argument for the determination of the customary rule of immunities applicable to international jurisdictions. To this end, it analyzes the precedents of the international criminal tribunals, the Arrest Warrant case and the rationale behind immunities of state officials. It argues that a distinction must be made between those international courts that exercise jurisdiction on behalf of the international community and those that constitute a mere pooling of national jurisdictions, and that only in relation to the former the immunities enjoyed before domestic courts are not transferable. The intervention of the Security Council in its creation and the subject-matter jurisdiction can be relevant factors in establishing the nature of a court. Regrettably, the Appeals Chamber has not engaged with this distinction and, as such, has failed to demonstrate that the ICC is itself an international court of a fundamentally different nature, a question that remains controversial.

THE INTERNATIONAL CRIMINAL COURT AS A VERITABLE TOOL FOR THE PROTECTION OF THE RIGHTS OF ETHNIC MINORITIES: EXAMINING THE ICC’S DECISIONS REGARDING THE PEOPLE OF ROHINGYA

Notwithstanding obstacles to the power and jurisdiction of the ICC, the judges’ posture is that the court is ever ready to protect ethnic minorities against any form of violations. Regarding the situation of the Rohingya people in Myanmar, the Pre-Trial Chamber 1 and III of the ICC held that the ICC could exercise jurisdiction over Myanmar, a non-party State to the Rome Statute, for the deportation of the Rohingya people to Bangladesh. With these decisions, international observers hope for accountability for those responsible for the crimes committed against the Rohingya people. It examines the applicable law and history of discrimination of the Rohingya people using the descriptive method and then examines the jurisprudence behind these rulings using the analytical method. Finally, this article suggests that the Rome Statute should be consistently interpreted by the ICC judges to advance the Rome Statute’s intention, especially when ethnic minority groups are involved.