Territory, jurisdiction and immunity

International Law · Subjects and territory. The idea in plain words, the rules to remember, the mistake to avoid and a worked example, written and checked by Mega Lecture.

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The idea

A state may gain title to territory in five traditional ways: occupation of land belonging to no one, cession by treaty, prescription through long and peaceful possession, accretion by the slow work of nature, and conquest. Conquest gave title in the past, but since the ban on the use of force it is no longer a lawful mode.

Jurisdiction is a state's power to make and enforce law. It rests mainly on territory, but also on nationality, the protection of vital state interests, and, for a few crimes such as piracy, universal concern.

State immunity means one state is not sued in the courts of another for its sovereign acts.

Rules to remember

Occupation: effective control of terra nullius. Island of Palmas (1928): discovery gives only an inchoate title; what counts is the continuous and peaceful display of authority. Eastern Greenland (1933): in a thinly peopled area very little actual exercise of authority is needed.
Cession: transfer by treaty, e.g. Alaska sold by Russia to the United States in 1867.
Prescription: long, peaceful, uninterrupted authority without protest. Accretion: gradual natural addition; a sudden change (avulsion) leaves the boundary where it was.
Stimson Doctrine (1932): no recognition of territorial changes made by force.
Bases of jurisdiction: territorial, nationality (active personality), passive personality (victim's nationality), protective, universal.
Lotus case (1927): a state may exercise jurisdiction unless a rule of international law forbids it.
Restrictive immunity: immunity for sovereign acts (acta jure imperii), none for commercial acts (acta jure gestionis).

Common mistake

Students confuse the protective principle with passive personality. Protective jurisdiction guards the state's own vital interests, such as its currency or security; passive personality is based on the nationality of the victim.

Worked example

A group of foreigners in State B plan and print false passports of State A, to be sold in State C. None of them has ever entered A. On what basis may A's courts try them?

The act was done outside A, so the territorial principle does not help.
The accused are not A's nationals, so the nationality principle fails, and no individual national of A is the victim, so passive personality does not fit.
Forging a state's official documents attacks an essential interest of that state itself.

Answer: The protective principle.

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