Week 5 - Jurisdiction and immunities
Assignment 1
Claire, a national of Alfuria, is a political activist, highly critical of the
Government of Bullia. She sets up a website which soon becomes a major
platform for criticising Bullia’s policies. The Website is also followed by the
activists in Bullia. On the website, she calls for an uprising in Bullia, if necessary
by armed force, and claims that Bullia’s President, Mr Bully, is a dictator, a
murderer, and involved in international drug trafficking. Bullia’s State
Prosecutor charges Claire with (i) taking subversive action against the State of
Bullia; and (ii) making defamatory statements about the President. These are
both crimes under the Penal Code of Bullia.
a) Claire plans to travel to Bullia and is seeking your advice on whether
Bullia could rightfully put her on trial for the alleged crimes. Claire
wishes to specifically reiterate that she is not a national of Bullia and
that the website in question has never been moderated from the
territory of Bullia.
Possibility of concurrent jurisdiction => more than one state ensure
jurisdiction over an offence
Treaty => First, check existence of extradition agreement between States
(bilateral or multilateral)
Extradition request => need of double criminality
Territorial jurisdiction => land and maritime
Lotus case Subjective: where offence commenced
Objective: where offence consummated
Nationality principle => prosecution own nationals abroad (Joyce case) not
possible since Claire not national
Passive personality principle => defends possibility of judging individual
foreigner offender on national court (Cutting + Yunis case). Pretty
controversial except regarding terrorism cases
Protective principle => protection of vital interests of States (also Joyce case
+ Eichmann case [even Israel did not exist, it damaged its country])
Universal principle => no link required for worst crimes, BUT only recognised
for piracy (high seas owned by all and no one, although defenders of Lotus
would apply expansive interpretation). Belgium only State that seeks it but
was asked to refrain from it.
Effects doctrine => economic harm caused by the breach of reliability of
State security (Alcoa case)
b) Is Claire safe from prosecution if she never travels to Bullia?
No, be careful with
succeeding of mentioned principles + possibility of ‘kidnapping’ or being
tricked (Yunis case) but would lately depend on the domestic procedural
law
Extradition request => need of double criminality
Assignment 1
Claire, a national of Alfuria, is a political activist, highly critical of the
Government of Bullia. She sets up a website which soon becomes a major
platform for criticising Bullia’s policies. The Website is also followed by the
activists in Bullia. On the website, she calls for an uprising in Bullia, if necessary
by armed force, and claims that Bullia’s President, Mr Bully, is a dictator, a
murderer, and involved in international drug trafficking. Bullia’s State
Prosecutor charges Claire with (i) taking subversive action against the State of
Bullia; and (ii) making defamatory statements about the President. These are
both crimes under the Penal Code of Bullia.
a) Claire plans to travel to Bullia and is seeking your advice on whether
Bullia could rightfully put her on trial for the alleged crimes. Claire
wishes to specifically reiterate that she is not a national of Bullia and
that the website in question has never been moderated from the
territory of Bullia.
Possibility of concurrent jurisdiction => more than one state ensure
jurisdiction over an offence
Treaty => First, check existence of extradition agreement between States
(bilateral or multilateral)
Extradition request => need of double criminality
Territorial jurisdiction => land and maritime
Lotus case Subjective: where offence commenced
Objective: where offence consummated
Nationality principle => prosecution own nationals abroad (Joyce case) not
possible since Claire not national
Passive personality principle => defends possibility of judging individual
foreigner offender on national court (Cutting + Yunis case). Pretty
controversial except regarding terrorism cases
Protective principle => protection of vital interests of States (also Joyce case
+ Eichmann case [even Israel did not exist, it damaged its country])
Universal principle => no link required for worst crimes, BUT only recognised
for piracy (high seas owned by all and no one, although defenders of Lotus
would apply expansive interpretation). Belgium only State that seeks it but
was asked to refrain from it.
Effects doctrine => economic harm caused by the breach of reliability of
State security (Alcoa case)
b) Is Claire safe from prosecution if she never travels to Bullia?
No, be careful with
succeeding of mentioned principles + possibility of ‘kidnapping’ or being
tricked (Yunis case) but would lately depend on the domestic procedural
law
Extradition request => need of double criminality
