Research Handbook on Jurisdiction and Immunities in International Law

Research Handbook on Jurisdiction and Immunities in International Law

Research Handbooks in International Law series

Edited by Alexander Orakhelashvili

This Research Handbook provides a comprehensive and up-to-date analysis of the international law of jurisdiction and immunities, illustrating those aspects in which the law of jurisdiction and law of immunities are mutually interdependent, as well as shedding light on the implications of that interdependence. With authoritative contributions from recognized experts, it offers an impartial perspective on the applicable international law, independent from any positions held in governmental or other institutional circles.

Chapter 1: State jurisdiction in international law: complexities of a basic concept

Alexander Orakhelashvili

Subjects: law - academic, public international law

Extract

Jurisdiction is the principal tool of the assertion by states of their public and sovereign authority, possessing which distinguishes the state from the entities that operate under private law. Any exercise of public authority by the state, whether prosecuting a crime, expropriation of property, regulation of trade or taxation, or anything else, and whether lawful or unlawful under international law, involves the exercise of state jurisdiction. The exercise of state jurisdiction takes place in the context that rights may be acquired by individuals and other private entities outside the forum state’s boundaries, which is a matter that could fall within the jurisdiction of more than one state. Similarly, the interest of individuals and corporations could also vary: some national legal systems could provide a better procedural standing, more effective remedies, or better access to the object of the relevant litigation, or otherwise confer advantages attractive to litigants and influence their choice as to in which legal system they should pursue litigation. Under public international law, states are independent from, and unsubordinated to, each other. Absent special agreements, there is no centralized mechanism or arrangement for distributing jurisdictional entitlements among states, or determining their priority. Instead, jurisdictional relations operate, as it were, on an inter-state interactional plane. In the first place, there is an initial entitlement of, or claim by, the state to exercise jurisdiction over a particular person or matter.