Jurisdiction (from Latin 'law' and 'speech' or 'declaration') is the legal term for the legal authority held by a legal entity to enact justice. Jurisdiction is rarely claimed to be complete: rather it is limited for example by geography, subject matter, or other factor. It is only within the scope (inside the limits) of such jurisdiction that, for example, the parties to a dispute have standing to bring the matter (a legal question) before a judge, who has power (or 'jurisdiction') to decide it authoritatively.
A "jurisdiction" can also be understood as a category name for any separate polity legally constituted as such — for any government with legislative and other legal power over a particular territory, whether that area is a nation state or some smaller region. Thus, Australia, Arizona, North Yorkshire and New York City are each "a jurisdiction". In federations like the United States, jurisdiction in this polity sense applies at multiple levels (e.g., local, state, and national/federal).
Jurisdiction draws its substance from international law, conflict of laws, constitutional law, and is often thought to include the powers of the executive and legislative branches of government to pursue policies and allocate resources so as to best serve the needs of society.
International dimension Generally, international laws and treaties provide agreements which nations agree to be bound to. Such agreements are not always established or maintained. Extraterritorial jurisdiction is exercised through three principles outlined in the UN Charter. These are equality of states, territorial sovereignty and non-intervention. This raises questions of when can many states prescribe or enforce jurisdiction. The Lotus case establishes two key rules to the prescription and enforcement of jurisdiction. The case outlines that jurisdiction is territorial and that a state may not exercise its jurisdiction in the territory of another state unless there is a rule that permits this.SS Lotus (France v Turkey), 1927 PCIJ series A No.10, para 19. On that same note, states enjoy a wide measure of discretion to prescribe jurisdiction over persons, property and acts within their own territory unless there was a rule that prohibits this.
Political issue Supranational organizations provide mechanisms whereby disputes between nations may be resolved through arbitration or mediation. When a country is recognized as , it is an acknowledgment by the other nations that the country has sovereignty and the right to exist.
However, it is often at the discretion of each nation whether to co-operate or participate. If a nation does agree to participate in activities of the supranational bodies and accept decisions, the nation is giving up its sovereign authority and thereby allocating power to these bodies.
Insofar as these bodies or nominated individuals may resolve disputes through judicial or quasi-judicial means, or promote treaty obligations in the nature of laws, the power ceded to these bodies cumulatively represents its own jurisdiction. But no matter how powerful each body may appear to be, the extent to which any of their judgments may be enforced, or proposed treaties and conventions may become, or remain, effective within the territorial boundaries of each nation is a political matter under the sovereign control of each nation.
International and municipal The fact that international organizations, courts and tribunals have been created raises the difficult question of how to coordinate their activities with those of national courts. If the two sets of bodies do not have concurrent jurisdiction but, as in the case of the International Criminal Court (ICC), the relationship is expressly based on the principle of complementarity, i.e., the international court is subsidiary or complementary to national courts, the difficulty is avoided. But if the jurisdiction claimed is concurrent or, as in the case of International Criminal Tribunal for the former Yugoslavia (ICTY), the international tribunal is to prevail over national courts, the problems are more difficult to resolve politically.
The idea of universal jurisdiction is fundamental to the operation of global organizations such as the United Nations and the International Court of Justice (ICJ), which jointly assert the benefit of maintaining legal entities with jurisdiction over a wide range of matters of significance to nations (the ICJ should not be confused with the ICC and this version of "universal jurisdiction" is not the same as that enacted in the War Crimes Law (Belgium), which is an assertion of extraterritorial jurisdiction that will fail to gain implementation in any other state under the standard provisions of public policy). Under Article 34 Statute of the ICJ only nations may be parties in cases before the Court and, under Article 36, the jurisdiction comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. But, to invoke the jurisdiction in any given case, all the parties have to accept the prospective judgment as binding. This reduces the risk of wasting the Court's time.
Despite the safeguards built into the constitutions of most of these organizations, courts and tribunals, the concept of universal jurisdiction is controversial among those nations which prefer unilateral to multilateral solutions through the use of executive or military authority, sometimes described as realpolitik-based diplomacy.
Within other international contexts, there are intergovernmental organizations such as the World Trade Organization (WTO) that have socially and economically significant dispute resolution functions but, again, even though their jurisdiction may be invoked to hear the cases, the power to enforce their decisions is at the will of the nations affected, save that the WTO is permitted to allow retaliatory action by successful nations against those nations found to be in breach of international trade law. At a regional level, groups of nations can create political and legal bodies with sometimes complicated patchworks of overlapping provisions detailing the jurisdictional relationships between the member states and providing for some degree of harmonization between their national legislative and judicial functions, for example, the European Union and African Union both have the potential to become federated nations although the political barriers to such unification in the face of entrenched nationalism will be very difficult to overcome. Each such group may form transnational institutions with declared legislative or judicial powers. For example, in Europe, the European Court of Justice has been given jurisdiction as the ultimate appellate court to the member states on issues of European law. This jurisdiction is entrenched, and its authority could only be denied by a member nation if that member nation asserts its sovereignty and withdraws from the union.
Law The standard treaties and conventions leave the issue of implementation to each nation, i.e. there is no general rule in international law that treaties have direct effect in municipal law, but some nations, by virtue of their membership of supranational bodies, allow the direct incorporation of rights or enact legislation to honor their international commitments. Hence, citizens in those nations can invoke the jurisdiction of local courts to enforce rights granted under international law wherever there is incorporation. If there is no direct effect or legislation, there are two theories to justify the courts incorporating international into municipal law: Monism This theory characterizes international and municipal law as a single legal system with municipal law subordinate to international law. Hence, in the Netherlands, all treaties and the orders of international organizations are effective without any action being required to convert international into municipal law. This has an interesting consequence because treaties that limit or extend the powers of the Dutch government are automatically considered a part of their constitutional law, for example, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights. In nations adopting this theory, the local courts automatically accept jurisdiction to adjudicate on lawsuits relying on international law principles. Dualism This theory regards international and municipal law as separate systems so that the municipal courts can only apply international law either when it has been incorporated into municipal law or when the courts incorporate international law on their own motion. In the United Kingdom, for example, a treaty is not effective until it has been incorporated, at which time it becomes enforceable in the courts by any private citizen, where appropriate, even against the UK Government. Otherwise the courts have a discretion to apply international law where it does not conflict with statute or the common law. The constitutional principle of parliamentary supremacy permits the legislature to enact any law inconsistent with any international treaty obligations even though the government is a signatory to those treaties.
In the United States, the Supremacy Clause of the United States Constitution makes all treaties that have been ratified under the authority of the United States and customary international law to be a part of the "Supreme Law of the Land" (along with the Constitution itself and acts of Congress passed pursuant to it) (U.S. Const. art. VI Cl. 2) As such, the law of the land is binding on the federal government as well as on state and local governments. According to the Supreme Court of the United States, the treaty power authorizes Congress to legislate under the Necessary and Proper Clause in areas beyond those specifically conferred on Congress (Missouri v. Holland, 252 U.S. 416 (1920)).
International This concerns the relationships both between courts in different jurisdictions, and between courts within the same jurisdiction. The usual legal doctrine under which questions of jurisdiction are decided is termed .
To deal with the issue of forum shopping, nations are urged to adopt more positive rules on conflict of laws. The Hague Conference and other international bodies have made recommendations on jurisdictional matters, but litigants with the encouragement of lawyers on a contingent fee continue to shop for forums.
Jurisdictional principles
Under international law there are different principles that are recognized to establish a state's ability to exercise criminal jurisdiction when it comes to a person. There is no hierarchy when it comes to any of the principles. States must therefore work together to solve issues of who may exercise their jurisdiction when it comes to issues of multiple principles being allowed. The principles are Territorial Principle, Nationality Principle, Passive Personality Principle, Protective Principle, Universality Principle.
Territorial principle: This principle states that the State where the crime has been committed may exercise jurisdiction. This is one of the most straightforward and least controversial of the principles. This is also the only principle that is territorial in nature; all other forms are extraterritorial.Gideon Boas, Public International Law: Contemporary Principle and Perspectives (Edward Elgar 2012) pp. 251–254.Malcolm Shaw, International Law (6th edition, Cambridge University Press 2008) pp. 652–659.