Generally, international laws and treaties provide agreements which nations agree to be bound to. Such agreements are not always established or maintained. The exercise of extraterritorial jurisdiction by three principles outlined in the UN charter. These are equality of states, territorial sovereignty and non-intervention. This raises the question 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. 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.
Supranational organizations provide mechanisms whereby disputes between nations may be resolved through arbitration or mediation. When a country is recognized as de jure, it is an acknowledgment by the other de jure 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 each nation.
International and municipal
The fact that international organizations, courts and tribunals have been created raises the difficult question of how to co-ordinate 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.
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:
- 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.
- 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 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) and, 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)).
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 forum non conveniens.
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.
Under international law there are different principles that are recognized to establish a States ability to exercise criminal jurisdiction when it comes a person. There is no hierarchy when it comes to any of the principle and does require that States 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: The principle states that the State where the crime has been committed may exercise jurisdiction. This is one of the most straight forward and least controversial of the principles. This is also the only principle that is territorial in nature, all other forms are extraterritorial.
Nationality Principle: This principle is based around a person nationality and allows States to exercise jurisdiction when it comes to their nationality, both within and outside the State’s territory. Seeing as the territoriality principle already gives the State the right to exercise jurisdiction, this principle is primarily used as a justification when prosecuting crimes committed abroad by their people.
Passive Personality Principle: This principle allows States to exercise jurisdiction against foreign nationals that effects their own nationals. Similar in style to the nationality principle, except that the idea is to protect your nationals (the victim) from others.
Protective Principle: This principle allows States to exercise jurisdiction when it comes to foreign nationals for acts committed outside their territory that have or intended to have a prejudicial impact upon the State. It is especially used when it comes to matters of national security.
Universality Principle: This is the broadest of the principles. The bases is that a State has the right, and sometimes even an obligation, to exercise jurisdiction when it comes to criminal law. The principle goes even further then the other principles as there is attached to it the obligation to prosecute the accused or extradite to a State that will, known as aut dedere aut judicare.
At a supranational level, countries have adopted a range of treaty and convention obligations to relate the right of individual litigants to invoke the jurisdiction of national courts and to enforce the judgments obtained. For example, the member nations of the signed the Brussels Convention in 1968 and, subject to amendments as new nations joined, it represents the default law for all twenty-seven Member States of what is now termed the European Union on the relationships between the courts in the different countries. In addition, the Lugano Convention (1988) binds the European Union and the European Free Trade Association.
In effect from 1 March 2002, all the member states of the EU except Denmark accepted Council Regulation (EC) 44/2001, which makes major changes to the Brussels Convention and is directly effective in the member nations. Council Regulation (EC) 44/2001 now also applies as between the rest of the EU Member States and Denmark due to an agreement reached between the European Community and Denmark. In some legal areas, at least, the CACA enforcement of foreign judgments is now more straightforward. At a national level, the traditional rules still determine jurisdiction over persons who are not domiciled or habitually resident in the European Union or the Lugano area.
Many nations are subdivided into states or provinces (i.e. a subnational "state"). In a federation — as can be found in Australia, Brazil, India, Mexico and the United States) — such subunits will exercise jurisdiction through the court systems as defined by the executives and legislatures.
When the jurisdictions of government entities overlap one another—for example between a state and the federation to which it belongs—their jurisdiction is a shared or concurrent jurisdiction.
Otherwise, one government entity will have exclusive jurisdiction over the shared area. When jurisdiction is concurrent, one government entity may have supreme jurisdiction over the other entity if their laws conflict. If the executive or legislative powers within the jurisdiction are not restricted, or have only limited restrictions, these government branches have plenary power such as a national policing power.
Otherwise, an enabling act grants only limited or enumerated powers.
Child custody cases in the U.S. are a prime example of jurisdictional dilemmas caused by different states under a federal alignment. When parents and children are in different states, there is the possibility of different state court orders over-ruling each other. The U.S. solved this problem by adopting the Uniform Child Custody Jurisdiction and Enforcement Act. The act established criteria for determining which state has primary jurisdiction which allows courts to defer the hearing of a case if an appropriate administrative agency determines so.