The Evolving Nature of the Jurisdiction of the Security Council

This chapter studies the original conception of the Security Council’s jurisdiction and contrasts it with the way its jurisdiction has developed and expanded in practice since the end of the Cold War. The Security Council’s jurisdiction—which is principally political and informed primarily by political rather than legal considerations—rests on a limited legal framework consisting of provisions in the UN Charter and of the Council’s own provisional rules of procedure. Nevertheless, the Security Council’s jurisdiction has expanded considerably since the end of the Cold War and has expanded into areas beyond international security. One notable area in which the Council’s competence has increased in this period is that of sanctions. These jurisdiction-related developments in the Council’s practice reflect a world in which the line between national and international jurisdiction are no longer clear or desirable. At the same time, the Council has also increased its interaction with UN Member States and with civil society.

Jurisdictional Pluralism

This chapter offers a theoretical framework for the reconceptualization of jurisdiction, one which recognizes the extent to which contemporary social conditions—which are increasingly experienced across different jurisdictions—and changes in regulatory authority are visibly supplanting the exclusive notion of jurisdiction favoured by classical international law, with its preoccupation with sovereignty and territory. Viewing the concept of jurisdiction through the lens of legal pluralism opens up a wide range of inquiries that tend to be ignored or suppressed in most legal discussions of jurisdiction. Indeed, jurisdictional pluralism is both a descriptive reality, a theoretical framework, and a potentially productive institutional design choice. The chapter then argues that jurisdictional contestation is an inherent feature of living in a world with multiple overlapping communities.

Navigating Diffuse Jurisdictions

This chapter studies the jurisdictional boundaries between state and non-state law with specific reference to religious, or customary, law. The determination of these regulatory forms as state law depends on the extent to which they perform prescriptive, adjudicative, or enforcement functions. Indeed, the boundaries between state and non-state law are not as stable as they may appear, as they are liable to shift according to circumstances and over time. The chapter then argues that the issue of classification acquires resonance in cases where legal pluralism occurs as the character and scope of a state’s exercise of jurisdiction becomes far more ambiguous in such situations. This can create uncertainty about the jurisdiction of the respective systems, the status of norms from one system that are given effect in another, and how these norms should be interpreted and applied given their concurrent existence within more than one legal system.

Introduction

This introductory chapter provides an overview of the role of jurisdiction in international law. Jurisdiction becomes an issue in international law once a state adopts laws that govern matters which are not purely of domestic concern. In this case, the extension of jurisdiction to regulate the activities of a state’s nationals abroad under the so-called active personality principle draws on the conception of a state as more than just territory, namely as a group of persons, wherever located, who are subject to a common authority that accompanies nationality. This type of jurisdiction is exercised to protect a state’s reputation from being tarnished by the conduct of its nationals abroad. Meanwhile, the question of nationality is determined by domestic law, although international law ascertains whether such a claim of nationality by one state must be accepted by another on the basis of the ‘genuine link’ test.

Private Interests and Private Law Regulation in Public International Law Jurisdiction

This chapter focuses on private interests and private law regulation in public international law jurisdiction, and discusses how questions of private law are generally marginalized in favour of a focus on public law, particularly criminal law. This is surprising and unfortunate for two main reasons. The first is that private law issues played a central role in the development of public international law jurisdictional principles. The second is that public international lawyers have, in a range of other contexts, increasingly recognized the significance of private law regulation, and the ‘public’ function which it can play in pursuing particular state interests. Recognizing the significance of private law jurisdiction presents, however, some important challenges to the way in which public international law jurisdiction has become to be understood.

International Criminal Jurisdiction

This chapter examines the theoretical foundations and the genealogy of international criminal jurisdiction in international law. While it is clear that international criminal jurisdiction cuts into national jurisdiction to a certain extent, the question concerning the proper foundation of international criminal jurisdiction—whether it rests on state consent or a mandate by the international community—remains more nuanced and more debated. The chapter also explores judicial perspectives on the jurisdiction of international courts and tribunals. It argues that, where the Security Council has been involved in establishing a court or tribunal, jurisprudence supports the position that international criminal jurisdiction is exercised on behalf of the international community. In the case of the International Criminal Court (ICC), however, the picture becomes more complex, due to the role of domestic criminal jurisdiction and the difficulty in identifying a single international community.

Critical Approaches to Jurisdiction and International Law

This chapter addresses the ways in which critical jurists have grappled with the character and transmission of forms of authority in a variety of settings. Specifically, it describes and comments on two aspects of critical approaches to jurisdiction and international law: one emphasizing the place of jurisdiction within critical discourse and the other thinking critically with jurisdictional forms, arrangements, and practices. In both accounts, holding on to the prudential character of jurisdiction has drawn attention to the conduct of office and relations of law. In doing this, the chapter sets the concern with jurisdiction in the office of jurisprudence and treats critical approaches as, at least in part, a training in office. This training has been characterized in terms of an ethic of responsibility, although what this might mean varies considerably amongst the critical approaches considered in the chapter.

The European Concept of Jurisdiction in the Colonies

This chapter explores the European concept of jurisdiction in the colonies. European concepts of jurisdiction were varied during the nineteenth century. One thing was for sure: the idea of territorial jurisdiction was imposed throughout the world as a handmaiden to colonialism. Jurisdictions were declared unilaterally and sometimes arbitrarily by colonial powers over huge swathes of territory. Moreover, territorial boundaries became more reified as cartography projects and imperial expeditions delineated borders, and colonial authorities enforced these border controls. The chapter looks at the pluralism that resulted from colonial powers imposing new administrative structures on colonial subjects. It highlights the significance of territorial jurisdiction as a tool to further the expansion of colonial rule and how the use of jurisdiction in this manner resulted in the subjugation of pre-existing legal frameworks.

Cosmopolitan Jurisdiction and the National Interest

This chapter explores the exercise of jurisdiction in the common interest. Drawing on realism and actual practice, it is posited that the exercise of jurisdiction in the common interest is unlikely unless the state has a nexus to the situation subject to regulation. The presence of a nexus may in fact serve to allocate jurisdictional authority and responsibility and encourage action in the common interest. In practice, cosmopolitan jurisdiction is hardly exercised. Scarce resources, fear of retaliation or reciprocity, and lack of local interest in global issues may cause states to forego assertions of cosmopolitan jurisdiction, unless a ‘national interest’ can be identified. The chapter then considers the actual practice of universal criminal jurisdiction.

Jurisdiction and International Territorial Administration

This concluding chapter discusses jurisdiction and international territorial administration. Such territorial administration regimes have been created where international organizations or states collectively have had to step in to stabilize or reconstruct a particular country or region, and this kind of administration creates a very distinctive and complex environment for jurisdiction. The chapter then explores five different aspects of jurisdiction in relation to these administrations. First, it looks at the basis on which these bodies might assert jurisdiction over a territory and its people. Second, it examines how this jurisdiction can be exercised within the domestic legal systems of these territories. Third, it investigates jurisdiction over international crimes, which may be shared between different international bodies. Fourth, it considers the impact of international organizations’ immunities on jurisdiction, including, fifth, their significance for human rights jurisdiction.