Chapter 5
Sovereignty inside the State
Why States still matter
Politicians are fond of referring to ‘our way of life’ and to the ‘values’ that underpin the State. Many people would question the idea that there is much in the way of a coherent body of values that are established and pursued across divisions of class, age, gender, religion, language, and ethnicity within a single State—to take only the most obvious social divisions that exist in States all around the world. Nonetheless, we do usually think of the rest of the world in terms of ‘foreign’ States and ‘foreign’ nationalities, and of the facile stereotypes that make nationality such a potent concept.
Increasingly, one might question whether nationality is the grouping that really matters. Governmental powers, economies, cultures, and many other social phenomena exist at local, provincial, national, regional, and continental levels; and it is at least arguable that the devolution of powers from the national to the local level, and the drift of powers from national governments to supranational bodies such as the organs of the European Union, is steadily eroding the practical significance of the nation-State from above and below. Indeed, it is not fanciful to view the EU, NATO, attempts to establish an Islamic caliphate in the Middle East, and attempts to persuade States to stand together to defend ‘western values’ as all being manifestations (among many others) of the same perception: that the nation-State is not the size or kind of social unit that is best suited to each and every one of the agendas and aspirations of its citizens and of those who govern them.
The answer to questions about the continuing utility of nationality obviously depends upon how one tests ‘what matters’. It is probably true that, as a matter of fact, most inhabitants of the planet, most of the time, are not concerned with questions of international affairs or international economic or social policies. Life is generally lived locally, within a local rather than a national or international framework. Nonetheless, when action is required, to alleviate the effects of poverty or disease or flooding or drought, for example, one still looks primarily to national governments. They are the bodies that raise and spend most taxes, and that have most control over armed forces and over the roads and railways, the schools and hospitals, and so on upon which the citizens depend. National governments have the most control over matters such as immigration and emigration and international trade. Even in relation to matters such as policing and power supplies, in which local or regional authorities may be the primary controllers and determiners of policies and priorities, national governments usually have a degree of overarching or residual control that makes them the natural focus of social power and activity.
It is arguably the control of legislatures and taxation that makes national governments pre-eminent among the social institutions whose actions mould the character of everyday life. By stipulating in laws what must and what must not be done, and by exercising its control over the resources necessary to do those things, the national government—and with it, the nation-State—retains its primary importance. When one adds the special position of the national government’s ministry of foreign affairs, which is the accepted contact point with foreign governments, the case for a focus upon the nation-State becomes overwhelming, no matter how active and flourishing informal trade and social links with foreign groups might be.
This is where the legal concepts of territorial sovereignty and of jurisdiction play a crucial role. Each State has the sovereign right to decide upon its social and economic structures, and to lay down laws that will have a major influence on the national character of the State and of life within it. The legal concept of jurisdiction determines the reach and priority of those laws. It sets the limits within which a State has the right to prescribe such rules, and also within which a State has the right to enforce them.
Jurisdiction and the State
The basic principle is that jurisdiction is territorial: that is, the legislature of a State has the primary right to set the laws that apply to everyone within the borders of the territory of that State. It is an aspect of territorial sovereignty, and of the right of self-determination set out in instruments such as the 1966 International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, that States and peoples have the right to pursue their own economic, social, and cultural development, freely choosing the legal structures that support them.
It is this freedom that entitles the government of a State to decide if the burqa may be worn in public places, to choose to prohibit the sale or consumption of alcohol or opium, or the production of graven images or seditious or pornographic material, and to stipulate how many spouses each person may have and how old they must be, and whether citizens must pay for their own education or healthcare or transportation, and so on. The primacy of territorial jurisdiction and the freedom to choose the social structure secures the right of societies to be different.
That freedom is not unlimited: it is constrained by obligations of the State under international law, of which the most significant in practice are those arising from human rights laws and from various trade and economic agreements that provide rights for people to enter and work in the States Parties to them.
The European Convention on Human Rights (‘ECHR’) is, alongside the similar Inter-American and African conventions, one of the major regional human rights conventions. The States Parties to those conventions have chosen to bind themselves to secure certain fundamental human rights for all people within their jurisdiction—which, in the case of the ECHR, includes not only the territory of a State but also areas and situations abroad that are under the control of the State, as the so-called ‘Turkish Republic of Northern Cyprus’ is under Turkish control and jurisdiction, and British military personnel and the prisons that they operated in Iraq during the second Iraq War were under British control and jurisdiction. The right to life, the prohibitions on torture and arbitrary detention and punishment, the rights to freedom of thought and expression, and the prohibitions on discrimination are among the rights and duties secured by the ECHR and other human rights instruments; and the list has been greatly augmented by the adoption of protocols adding to the basic convention rights and, above all, by the exegetical decisions of the European Court of Human Rights and its equivalents elsewhere.
Like all treaty obligations, States’ obligations under the ECHR are self-imposed. They bind only those States that have chosen to become Parties to the ECHR; and it is wrong to suggest that they are somehow foisted upon Member States—though it must be admitted that it is unlikely that all States foresaw the extent to which the ECtHR would apply the broad principles of the ECHR’s fundamental rights to the minutiae of everyday life. Moreover, even if the ECtHR (which is a Council of Europe body, quite separate from the European Union) declares that a particular decision or law of a Member State is incompatible with the ECHR, that ruling does not automatically override national law. A State in breach of the ECHR is obliged as a matter of international law to take steps to bring itself into conformity with its ECHR obligations: but if the State does not do so, the State’s own courts and authorities will comply with national law. Only if the State’s own national law directs its courts and authorities to give precedence to the ECHR (or any other international obligation) over inconsistent national laws will they give the ECHR such precedence. And if the ECHR is thought to be too intrusive in its intervention into national legal systems, the Member States have it in their power to amend it—though it is well to remember that the ECHR rights were defined by those who fought in and survived the Second World War as a bulwark against the slide into State terror: it is not lightly to be put aside. But for as long as States choose to remain Parties to the ECHR, it will undeniably constrain the States’ freedom to legislate as they choose.
This is not only true of human rights obligations: all treaty obligations constrain the States Parties to some extent. To take another example, Bilateral Investment Treaties (‘BITs’), of which there are between two and three thousand worldwide, are very significant restrictions on what the States Parties can do in relation to investors from the other State. BITs typically prohibit discrimination against the foreign investors and require that they be accorded ‘fair and equitable treatment’. The latter requirement is particularly trenchant: even if an investor is treated in a non-discriminatory manner in accordance with the host State’s laws, it will be entitled to a remedy if it suffers loss as a result of some action which, though lawful, is unfair. An example would be the abandonment by a State of a commitment to maintain a particular tax regime, made to an investor who relied upon it in deciding to make the investment.
Accession to bodies such as the World Trade Organization (‘WTO’) and the International Monetary Fund (‘IMF’) have similar consequences. States may find themselves bound under international law not to provide subsidies to domestic industries, even indirectly through mechanisms such as tax breaks or subsidized energy supplies, and not to impose currency controls; and such constraints may have a considerable impact upon the government’s freedom to choose its own economic policies. The point is well illustrated by the mass of international disputes that arose from the Latin American debt crises around the turn of the millennium, when investors and creditors invoked their rights against the governments of the States concerned. Scores of cases were brought against Latin American States by foreign investors before arbitration tribunals, as they were entitled to do under the terms of applicable BITs.
The sovereignty of a State is accordingly a central concept. Externally, with the aspect facing out to the rest of the world, it establishes the right of the State in principle to legislate as it chooses, and to build its own chosen kind of social, economic, and political order. But it also gives the legal capacity to enter into the very binding agreements which constrain the State’s freedom of action. And internally, with the aspect of sovereignty that faces inwards to a State’s citizens and courts and authorities, it gives the State the legal power to do what it chooses, consistently with the constitutional law of the State, even if that involves acting contrary to the State’s international obligations.
Jurisdiction and territory
Every State has jurisdiction over its territory. That is obvious, and practically tautological given the concept of Statehood with which international law operates. The territory of the State is the whole of the area within its borders, and also the adjacent territorial sea, up to 12 miles from the coast. It includes the airspace above and the subsoil below. A State’s airspace, in this context, is usually reckoned to extend up to the edge of the atmosphere, around 100 kilometres above the earth, beyond which is Outer Space, an area where international law (as understood by earthlings, at least) does not recognize that any State may gain exclusive rights. By a long-established legal fiction, ships and aircraft are also treated for jurisdictional purposes as if they are part of the territory of the State in which they are registered—the flag State—which may extend its laws to them as it chooses.
Jurisdiction at sea is a little more complicated. The territorial sea of a State (together with its seabed and the airspace above it) is regarded as being as much a part of its territory as is its land, though foreign ships have a limited right of navigation (innocent passage) through it; but beyond the 12-mile limit at sea matters are rather different. Until the late 20th century all the waters beyond the territorial sea were treated as high seas, free for use by ships of any State for fishing, navigation, overflight or any other lawful purpose. (Some States claimed 3-mile territorial seas with jurisdiction in a contiguous zone in respect of customs and fishing for a few miles beyond that; others claimed a 6- or 12-mile territorial sea; but there were no serious claims to a coastal belt wider than 12 miles.) There was thus a stark contrast between the territorial sea, in which a coastal State could exercise jurisdiction over all ships, regardless of their nationality, and the high seas, where (with the exception of ships engaged in piracy) ships were subject to the jurisdiction of their flag State alone.
In the 1940s States, recognizing the strategic importance of offshore oil supplies, began to claim exclusive rights over the continental shelf—the relatively shallow seabed beyond the limits of the territorial sea that is the seaward extension of the land mass of continents and islands, as distinct from the deep ocean floor. The USA, which led that move, has an extensive continental shelf; and the shallow waters of the Gulf of Mexico were an early target of the petroleum industry. The US lead was followed by other States, each unilaterally asserting its ownership of the resources of the continental shelf, and because of the generality of that practice and the absence of any significant opposition to it a new rule of customary international law swiftly emerged. States in areas such as the west coast of South America, however, have very narrow shelves and stood to gain little from the appropriation of the seabed resources. A parallel trend began in which those States asserted rights not only over the seabed resources, but also over the whole of the water column out to 200 miles measured from their coasts. Those claims were opposed by the traditional naval States, including the victorious allied powers in the Second World War (which were also major colonial powers), in particular because the claims were seen to threaten the high seas freedoms such as navigation and fishing from which they benefited greatly, and the opposition precluded the general acceptance of the practice that was necessary to generate new customary international law.
During the 1970s, however, the re-emergence into independent Statehood of many former colonies, coupled with the growing realization that the free-for-all high seas regime was leading to the serious over-fishing of commercial fish stocks, and that other interests in the seas (such as rights of navigation and overflight) could in fact be reconciled with the coastal State ownership of marine resources that was in practice necessary if rational resource management regimes were to be put in place, led to a radical change in the law. Following clear signs of a generally accepted change in State practice, the 1982 UN Convention on the Law of the Sea, which provides a comprehensive legal framework for the use of the seas, reflected this change by providing that each coastal State is entitled to exercise jurisdiction over the living resources (fish, whales, etc.) and non-living resources (oil, gas, gravel, placer deposits, etc.) of the sea and seabed, and over certain other matters including pollution, scientific research, and artificial islands and other installations (such as oil rigs, offshore waste disposal plants, and wind turbines), in a 200-mile exclusive economic zone (‘EEZ’) adjacent to its coasts. As part of the package deal that rendered this move acceptable to the traditional naval States, freedom of navigation and overflight was expressly preserved, in particular through key strategic straits such as the Straits of Gibraltar.
These developments regarding marine resources have a spatial aspect: they gave to coastal States new and extended maritime zones. But in essence they were jurisdictional, rather than territorial, developments. The EEZ is not actually a part of the territory of a State: it is an (admittedly, geographically defined) area within which the coastal State has a limited jurisdictional competence, tied to the resources (hence the name ‘economic’ zone) of the zone, including what may at first sight not seem like resources at all—economic goods such as wind power, and the cleanliness of the seas. The jurisdiction of the coastal State in its EEZ does, however, give it the ability to control and legislate for the exploration and exploitation of those resources.
The jurisdiction of a State means that it may regulate the conduct of all persons, regardless of their nationality, within its territory. The idea of conduct ‘within the territory’ of a State is more elusive than might be supposed. Sometimes States seek to extend their legislative jurisdiction over activities abroad that produce consequences within their territory. There is no significant problem with the archetypal examples of crimes that are partly located outside the territory of a State, such as cross-frontier shootings or postal crimes. If a person in Switzerland shoots someone across the border in France, or posts a blackmailing letter to that person, both Switzerland (as the State where the crime is initiated) and France (as the place where the crime is completed) would be entitled to exercise jurisdiction: they have concurrent jurisdiction over the whole crime, elements of which were committed in the territory of each of them. But the position with non-physical consequences is much less easy. What if the consequences are intangible and abstract?
The United States was particularly active in asserting jurisdiction on the basis of non-physical consequences affecting US territory or interests. For example, it penalized under its antitrust laws the organization of cartels outside the USA by non-US businesses, if the cartel had an effect upon competition in US markets. Such extensions of jurisdiction have often proved controversial. What may appear in New York to be an attempt by, say, a group of European companies to cartelize the US market may appear in Europe to be rational cooperation in order to compete successfully in US markets. Which view should prevail?
One might try to divide the situation up along territorial lines, and say that companies can cooperate in Europe, but that the USA retains the right to penalize any adverse effects of that cooperation that are proved actually to have been sustained on US territory without, however, ordering the cooperation to cease. But the problem is that in many situations the location of the ‘effects’ cannot be pinpointed, and that it is not possible to isolate the parts of an offence that occur within a State’s territory and allow it to regulate them but not conduct outside the territory. For example, the effect of a cartel upon competition in foreign markets is a diffuse economic force. Even if the members of the cartel, in fixing standard conditions of supply or in carving up sales territories between them, had, say, the USA primarily in mind, the economic results of the cooperation between them might well have affected the markets in, say, Canada and Mexico and Russia, too. Can each of them penalize the cartel? And what if (as is not uncommon) some of the States, including their home States in Europe, actually encourage commercial cooperation in respect of foreign markets, in order to boost exports? Can the USA prohibit European companies from doing things in Europe that are actually encouraged by the EU itself?
Such problems are far from uncommon. Similar difficulties arise from the fact that so many transactions now involve electronic transmissions routed through servers in different countries. Many large international banking transactions pass through the computers of the US-based Clearing House Interbank Payments System (‘CHIPS’). Is the shuffling of electrons in a computer in New York (or wherever the servers in the network of computers may be located) sufficient to found US territorial jurisdiction over the transaction that it helps to execute? If the USA imposes sanctions on a State or individual who is the intended recipient of a transfer from an account in a British bank, and that transfer would routinely pass through the CHIPS system, would it be caught by US sanctions legislation? What if the UK had adopted no such sanctions, and neither the transferor nor the transferee had any contact with the United States and had no reason to suppose that US law might impede the making of the payment?
Those problems arise from the fact that a particular activity may involve elements occurring in several different States. Differences in the attitudes of those States to the activity can cause jurisdictional conflicts. Such conflicts can also arise because States assert jurisdiction not only on the basis of territoriality, but on the basis of other links between the State and the regulated conduct. The longest and most firmly established such link is between the State and the persons who have its nationality.
Jurisdiction and persons
These days we naturally think of the duty to conform in territorial terms: ‘when in Rome, do as the Romans do.’ In most early societies, however, social organization was based on the tribe or family rather than on particular geographical locations. The duty of obedience to ‘the law’ was personal: each individual was bound loyally to obey the commands of his overlord and king, wherever the king and his courtiers might wander. That deeply rooted human convention survives in the international legal system.
As a matter of international law, each State is entitled to make laws that its citizens must obey whether they are at home or abroad; and some crimes have a gravity that is considered by lawmakers to demand the prosecution of their perpetrators wherever they may have been committed. For instance, some States make it a criminal offence for their nationals to travel abroad in order to engage in the sexual exploitation of children, whether or not a particular activity is a crime in the foreign State where it is actually carried out. Treason, bigamy, and murder also fell into this category. More recently, narcotics trafficking, money laundering, piracy, and terrorism laws have also commonly been given what is known as ‘extraterritorial’ effect—that is, they apply to nationals of the State even when they are outside the territory of the State—reflecting the practical need to approach at least some forms of criminal activity on the basis that they are frequently international by nature, and do not have the localized focus of crimes such as theft and assault. A few States have also asserted jurisdiction over crimes committed abroad whenever the victims (rather than the perpetrators) have the nationality of the State; but such assertions have tended to attract widespread support only in respect of certain terrorist offences, such as hostage-taking.
It is often said that some crimes are regarded as so serious that, as a matter of international law, any State may prosecute a suspected perpetrator, wherever the offence was allegedly committed and even if the alleged perpetrator is not a national of that State. This ‘universal’ jurisdiction attached to piracy and slavery, both of them offences now enjoying something of a renaissance, and various ‘crimes against humanity’ such as genocide, grave breaches of the laws of war, and torture. In truth, it is hard to see that the ‘seriousness’ of these crimes explains universal jurisdiction over them. For example, piracy is not necessarily any more serious than any other form of armed robbery; and it is hard to explain why only the acts overseen by public officials count as torture, and not similar acts carried out by the enforcers of drug cartels and other criminal groups (although it is likely that quasi-governmental gangs imposing their own species of ‘order’ upon territories where there is no effective regular government will be assimilated to public officials in this context).
The main reason that certain crimes came to be subject to universal jurisdiction under customary international law is opportunistic. There are many crimes that are appalling and universally condemned; but in a much smaller category of cases it is common for the alleged perpetrators to have a considerable freedom to travel, whether because they operate (like pirates and the slave traders of old) at sea or because they have enjoyed the fruits of power and corruption within—and the practical ability to leave—the States where they have committed their crimes. In such cases the perpetrators often escape prosecution at home. These have been the kinds of people singled out for assertions of universal jurisdiction in the past. Indeed, they still are. There have been quite a number of attempts to arrest alleged ‘war criminals’, for example, when they have been on trips to London or New York or Paris or some other city where swift justice is open to all, including vigilant groups of political and human rights activists.
These days, it is much more common for extraterritorial jurisdiction over persons to arise by treaty than under customary international law. States will try to fabricate an international consensus and to adopt an international convention on the repression of certain defined crimes. The States Parties to such treaties, which apply to offences such as torture, corruption, and genocide, typically agree that any of them may prosecute offences committed in another State, unless they extradite the accused person to face prosecution abroad—usually in the State where the alleged offence was committed. The principle known as aut dedere, aut judicare—either hand over the person to another State that wants him or put his case to the prosecuting authorities of the State where he is found—has done much to encourage States to initiate inquiries into crimes that in the past may well have escaped investigation.
Jurisdiction and property
There have been occasional attempts to extend jurisdiction over other ‘things’ which are in essence treated as if they are property rights. Rights under the law of the sea over the EEZ resources might be looked upon as one example. Another is the rule of international law that has long permitted States to criminalize the counterfeiting of their currency by aliens abroad, as if there were some kind of intellectual property right that each State is entitled to protect in its currency. But when the USA attempted to extend its jurisdiction over goods incorporating significant proportions of US technology, prohibiting anyone, anywhere from selling such goods without US government permission to certain proscribed destinations as part of its sanctions programme, other States objected. To order a research establishment in Oxford not to sell to London University a super-computer bought from a US supplier without US permission, and to make that permission conditional upon students of certain nationalities not being allowed access to the computer, was a step too far. Plugging leaks in sanctions regimes is a classic role for international cooperation, not something that can be achieved unilaterally without treading on the toes—without invading the sovereign independence—of other States. The jurisdiction of States remains overwhelmingly territorial in its focus, although the duties of citizenship may tie individuals to their national laws as they travel around the world.
Enforcing the law
It is one thing to prescribe laws, another to enforce them. Enforcement jurisdiction is strictly territorial. While a State may make it an offence for one of its nationals to participate abroad in the planning of terrorist attacks, for example, the State cannot send its police into the foreign country to arrest that national. If it did send them in, without the permission of the foreign State, it would violate the sovereignty of the foreign State. Indeed, that sometimes happens: there are infamous examples of US drug enforcement officers crossing the border to seize wanted persons in Mexico, and taking them back surreptitiously to the USA, on occasion drugged and concealed in crates. Usually, however, States observe the proprieties of international law and if a State wants to prosecute someone for an offence committed abroad (or even for an offence committed within its own territory, if the suspected offender has fled abroad), it will request the return of that person. If the suspect does not return voluntarily, he may be arrested by the authorities in the State in which he is living and extradited to the State that wishes to prosecute him.
Most States will only extradite wanted persons if there is an extradition treaty in force between the requesting and the requested State. Such treaties, which may be bilateral or multilateral, or regional arrangements such as the European Arrest Warrant, typically only provide for extradition in relation to relatively serious offences, punishable by imprisonment for a certain minimum period. Some States refuse to extradite their own nationals under any circumstances; and most States refuse to extradite people who can show that they are being prosecuted for ‘political’ reasons such as opposition to the requesting regime.
Though the rules are quite distinct, the non-extradition of political offenders complements the principles of international law relating to refugees—that is, people who fear persecution in their national State because of their ‘race, religion, nationality, membership of a particular social group or political opinion’. The Convention on the Status of Refugees, adopted in 1951 in the wake of the horrors of the Second World War and broadened in scope by a Protocol adopted in 1967, does not actually give refugees the right to enter another State in order to seek asylum. It says only that if they are in another State and do seek asylum, the authorities there may not return the asylum seeker to the frontiers of territories where his life or freedom would be threatened on account of any of the listed characteristics. The paradox of making what is widely, if inaccurately, thought of as the ‘right to asylum’ dependent upon what will often be an irregular entry into, or stay in, the State where asylum is sought is one (but not the only) factor that underlies the appalling trade in human misery and desperation which passes under the name of ‘migrant smuggling’.
When laws collide
What happens when laws collide—when, say, State A legislates on the basis of territoriality and State B on the basis of nationality, and a person is caught between conflicting demands (see Figure 7)? Who has the power to decide if women must, or must not, wear a full-face veil—the burqa—in France, or may choose whether or not to do so? What if the French legislature enacts a law that forbids the wearing of the burqa, but some other State or other body (such as a religious authority) says that wearing a burqa is mandatory, and perhaps imposes penalties on those women who do not wear them? May any individual be punished by the respective authorities both for wearing and for not wearing a burqa (see Figure 7)? Does it make a difference if the ban attaches not to clothing but to alcohol, or to illegal narcotics, or to the possession of components of nuclear or biological weapons?
International law has traditionally given the primacy to the right of a State to regulate conduct within its own territory. This is, of course, a solution driven largely by common sense and expediency. The practicalities are obvious. The person concerned, the people most directly affected by the person’s conduct, the evidence of any crime, and the physical presence of the police and other authorities will all be in the territorial location of the conduct. Because law enforcement is necessarily local, it is impractical not to allow the law of the place where the conduct occurs to have immediate priority. But it is also a matter of principle: to let the national law of the individual govern the matter within the State where the conduct occurs would contradict the principle of the sovereign equality of States, upon which the international order is built. Subject to limitations imposed by human rights law, each State has the right to choose to prohibit certain kinds of conduct, no matter what other States may think. Of course, the question whether it is wise or even justifiable to do so is an entirely different matter. International law sets the limits to a State’s jurisdiction, but it does not stipulate how the State must exercise that jurisdiction.
7. When municipal laws collide.
When an individual returns, his national State may take steps to prosecute in respect of conduct in which he engaged abroad, even if that conduct was lawful where it occurred. Treason and similar offences are becoming topical examples again: persons who have participated in terrorist activities or training abroad may be prosecuted on their return.
There are conflicts of policy that can cause difficulty to individuals caught between conflicting legal demands, or even caught in situations where one law forbids them to do something that they have a legal right or a freedom to do under another law which is applicable to them. The US antitrust laws and other trade laws that conflict with the legal regime in other parts of the world have already been mentioned as examples. When such situations arise the tendency is to deal with them initially on a pragmatic basis, by consultation between the authorities in the States concerned. Prosecutions and the imposition of regulatory controls are discretionary steps, and if State A can give a good reason for asking State B to refrain from penalizing conduct—for example, that most of the evidence relating to the offence is in State A and that State A intends to prosecute the suspected offenders—the authorities in State B will often decide not to exercise their jurisdiction, unless there is some particular reason for insisting that State B will pursue the matter. Such steps may not resolve the issue of principle, but they may at least limit the enforcement of contradictory laws to cases where the States concerned consider that it is imperative that they act.
In a growing range of areas, however, there is sufficient commonality of interest for States to agree upon principles allocating jurisdiction. No State is likely to declare publicly that it wishes to protect the interests of narcotic traders or terrorists, for instance: all will say that they wish those activities to be controlled. Thus, there are treaties concerning certain types of terrorist activity, such as hijacking of ships and aircraft, hostage-taking, indiscriminate attacks, and the financing of terrorist operations, which require that the States Parties establish their jurisdiction over specified offences and take steps to enforce their laws in defined circumstances. Many such treaties utilize the aut dedere, aut judicare principle. Similarly, there is a slow move towards agreement upon basic policies and principles in areas such as environmental law and economic law. Where all States (or all States Parties to the treaties in question) apply essentially the same rules, it matters much less which of them actually applies its laws in any given case.
Beyond, but not above, the law
Bookstores in Washington DC used to sell a Diplomatic Licence Plate Decoder, which enabled concerned residents, enraged at illegally parked diplomatic cars, to direct their anger in an appropriate direction. Most capital cities have residents suffering similar frustrations. The immunity enjoyed by foreign diplomats, and the more restricted immunities enjoyed by their staff and families, are designed to ensure that diplomats are not harassed by local authorities and to facilitate the discharge of their official functions; but that does not extinguish a widespread belief that diplomats are effectively above the law. That belief is compounded by the fact that local police have no right to enter or enforce the law within the embassies of foreign States. Thus it is that London police were stationed for years outside the Embassy of Ecuador, where WikiLeaks founder Julian Assange took refuge in June 2012. Mr Assange, who is not a diplomat, faced immediate arrest and extradition to Sweden if he stepped outside the inviolable premises of the Embassy.
Foreign diplomats and consuls are not above the law; but they are beyond the reach of the police. Under the Vienna Convention on Diplomatic Relations they enjoy specific exemptions from taxation and municipal dues—and the dispute over whether the London Congestion Charge is, as some foreign embassies maintain, a tax or, as Transport for London maintains, a permissible charge for services rendered, led to £82 million in unpaid fines on diplomatic cars during the first decade of the daily charge. But apart from such specific exemptions they are subject to the law and obliged to obey it like all others. What they are not subject to is the enforcement of the law. Diplomats may not be arrested or detained; diplomatic premises may not be entered; and diplomatic property may not be seized. If a diplomat is accused of committing a crime, the solution is to expel him or her, by declaring them persona non grata. In practice, miscreants are often sent home by their own authorities in order to avoid embarrassment.
A similar immunity from the enforcement of the law is enjoyed by States. States cannot be compelled to appear in national courts; their property cannot be seized, in the way that the property of private individuals can be seized to satisfy debts; and States cannot be fined or subjected to court injunctions. At a time when governments confined themselves to politics and government, and were essentially the instruments of the power of the sovereign, notions of the equality of sovereigns (and later, the sovereign equality of States) provided a reason for not forcing any State to comply with the laws of another.
State immunity used to be absolute, so that a State could not be sued for anything; but over the past century States have increasingly engaged in what is in fact plainly commercial activity. If a company supplies cement for the building of houses or factories, it seems unfair that they should be able to sue on their unpaid invoices if the supplies were bought by a private contractor but not if the concrete was purchased for the same project by the government. If a shipping line or airline damages goods that it has contracted to transport, why should it be immune from being sued if it is State-owned but not if it is privately owned? This question became more significant with the rise of the centrally planned economies in States such as the USSR and China, many of whose industries competed in world markets. Western States began to adopt legislation withdrawing immunity in cases arising from commercial transactions, preserving it only for the ‘public’, governmental acts of the State. Though difficult questions remain, such as the classification of transactions that have a commercial character but a ‘public’ purpose (the buying of boots for the army is commonly given as an example), the international consensus now supports this notion of ‘restrictive immunity’. It has become the general rule of customary international law, reflected in a Convention on the Jurisdictional Immunities of States adopted by the UN in 2004.
Jurisdiction: a major tool of international law
Jurisdiction is the conceptual framework within which States get things done. It marks out the limits of each government’s authority and legal power to regulate behaviour and to rule; and it enables governments to construct arrangements by which they can cooperate in achieving common goals. It secures their right to independence, and is the vehicle of their interdependence. It divides all, and unites all.
Chapters 6 and 7 address the question of the limitations on what States can achieve by using this framework. Just because a particular goal is good, it does not follow that it is useful to try to enforce that goal by making a law obliging people to pursue it; and just because there is a law, it does not means that it is useful to try to enforce it on every possible occasion. Law does some things well and some things badly, and the lawyer, like other craftsmen, is wise to work with the grain.