1. Jurisdiction-active
and passive
personality,
protective principle
and universal
jurisdiction
PRESENTED BY
ABSAR AFTAB ABSAR

2. JURISDICTION OF A STATE IN
RELATION TO A CRIME
• State jurisdiction is one of the most important and ongoing topics of
contemporary international law.
• Historically, it is clear that the existence of state jurisdiction in its basic
utilization represented by territoriality was concurrent with the
emergence of international law in its classic concept.
• In the era of globalisation the restriction on states to exercise the
jurisdiction only on their territory proved to be outdated.
• However, this nature of state jurisdiction had to change to meet new
conditions in the international society.
• These kinds of crimes are called transboundary offenses, and it is
impossible to prosecute them by applying territoriality in its basic
concept.
• May give rise to positive and negative conflicts.
• Thus, Nationality , Universality and protective Principles of
Jurisdiction of States evolved.

3. NATIONALITY PRINCIPLE-SCOPE
 Strict application of territoriality could be harmful for the peaceful
existence of international society.
 Therefore states recognized necessity of having an independent basis of
jurisdiction. As a result of it Nationality evolved as a basis of
jurisdiction.
 Principle can be applied on two bases
Active Personality
Passive Personality

4. THE ACTIVE PERSONALITY
(NATIONALITY)
 A state has a fundamental right to apply its laws to prosecute illegal
conduct committed by its citizens overseas.
 It allows State to legislate regulating the conduct of its citizen abroad.
 Although Principle is mostly prevalent in the civil law Jurisdictions , it
is generally recognized in Common Law states.
 In UK , the Principle applies to treason , murder and manslaughter
,and more recently ,conspiring or inciting sexual offences against
children.
 Since 1945 , with awareness in Human Rights the use of nationality
principle has been expanded to cover most of the Human rights aspects
also.
 The principle is used to protect the interest of the state from abroad.
The classic example is of the offence of treason.

5. THE ACTIVE PERSONALITY
(NATIONALITY)(CONTD…)
 In Public Prosecutor v. Antoni , the accused a Sweden national was
involved in a road traffic accident in Germany . One of his defense
when prosecuted in Sweden was that the traffic laws of Sweden were
never intended to be applicable outside Sweden . The Supreme Court
held the Principle that “every crime committed by a Sweden National
may be punished even if committed abroad.
 During the operation of UNPROFOR in former Yugoslavia , the Czech
soldiers killed their captain, the Czech authorities asserted jurisdiction
based on Active Personality Principle.
 Thus , the ambit of Active Personality Principle is extremely wide.

6. PASSIVE PERSONALITY
PRINCIPLE
 Jurisdiction is exercised by the State of the nationality of the victim
where the offence took place outside its territory.
 Common law states opposed it but by the emergence of transnational
crimes approved it.
 The justification is to protect the welfare of the nationals abroad.
 In Cutting case ,a US citizen was arrested in Mexico for a Libel charge
against a Mexican national ,the action for which the alleged libel was
charged had been committed whilst its author was in US ,the arrest of
the author was effectuated during his subsequent visit to Mexico . The
US Government vigorously opposed Mexico’s claim of Jurisdiction and
the case was finally discontinued.
 The Principle again faced the same rejection in Lotus case by the
Permanent Court Of International Justice.

7. PASSIVE PERSONALITY
PRINCIPLE(CONTD…)
 Following the Achille Lauro incident and subsequent murder of a US
citizen , the US congress enacted Omnibus Diplomatic Security and
Anti-Terrorism act,1986 which granted US courts Jurisdictions over
persons charged with the murder of US nationals.
 Similar Provisions are Section 3(4) of UK Taking Of Hostages
Act,1982,Art 689(1) of French Code Of Penal Procedure.
 In US v. Yunis the Principle was unequivocally upheld by the court of
Appeals ,that Passive Personality principle over the accused for
hijacking a Jordanian Airline with two US nationals onboard was
assumed on the basis of Anti Hijacking Act,1974 .
 Treaty based Passive Personality is much more effective than Statute
based Passive Personality.

8. THE PROTECTIVE PRINCIPLE
 It is unequivocally accepted that every country is competent to take any
measures that are compatible with the law of nations in order to
safeguard its national security interests.
 Above provided implication is the basis for the Protective or Security
Principle.
 The necessity of the Principle arose by the lack of municipal
legislations to criminalize or to prosecute the person though committing
an act abroad but is directed against the security of a Foreign State.
 The State shall have the Jurisdiction over the conduct meeting the
requisites whether committed by a national or a Foreigner.
 Under US law this principle is relevant when an extraterritorial offence
has or could have an adverse effect on the internal security ,Sovereignty
,Integrity , treasury or other governmental functions.

9. THE PROTECTIVE
PRINCIPLE(CONTD…)
 The focus of this Principle is the nature of interest which is or may be
harmed rather than the place where it occurs.
 In United States v. Layton , the defendant Larry Layton was charged
with conspiracy to murder Leo Ryan , a representative of US Congress ,
the US District Court found that it had subject matter jurisdiction over
all counts . The court applied several bases of jurisdiction included the
protective Principle . The Court held that killing a representative
impaired an important governmental function . The killing of
representative amounted to an extraterritorial act of terrorism and
generally met the requisites of Protective Principle.
 It is unclear whether the Protective Principle of Germany is expansive
in nature than U.S. or not.
 Basic premise of German Protective Principle is that the State will
subject “offences committed abroad by Foreigners(as well as Citizens)

10. THE PROTECTIVE
PRINCIPLE(CONTD…)
to its punitive power if thereby if domestic interests are endangered or
violated”.
 German concept of Protective Principle is broader in application than
the one prevalent in U.S. as it covers a number of interests violating
which the punitive sanctions can be taken.

11. UNIVERSAL JURISDICTION
 Any State may assert its authority over offences that are subject to
universal jurisdiction.
 Crimes under International Law have customarily attracted universal
jurisdiction in two independent way: (a)heinous , repugnant nature and
scale of the offence.(b) inadequacy of national legislation to deal with
such offence effectively.
 In Re Rohrig, a Dutch Special Cassation Court wrongly assimilated the
basis for asserting universal Jurisdiction over War crimes to that of
Piracy.
 In Re Pinochet , Millet argued that international crimes attract
universal jurisdiction where they violate a rule of Jus Cogen and at the
same time are so serious and perpetrated on such a large scale that they
can be regarded as an attack against International Legal Order.

12. UNIVERSAL
JURISDICTION(CONTD…)
 The most important ingredient lacking in the proposition of Millet is
Consent of the state to subject an offence to universal jurisdiction
Through Treaty or custom.
 In Art 105 of UNCLOS universal jurisdiction is given to any state in
case of Piracy(pirate ships or aircrafts) whether taking place on high
seas or on no man’s land . On the contrary in Art 99 of UNCLOS , every
state shall take effective measures to punish and prevent the transport
of slaves in ships authorized to fly its flag and to prevent the unlawful
use of its flag for this purpose.
 The repugnant nature of an offence may determine its subjection to
universal jurisdiction but this also requires unequivocal consent of the
international community , thus , it is not an automatic process.

13. UNIVERSAL
JURISDICTION(CONTD…)
 Non parties to UNCLOS and 1949 Geneva Convention , the Jus Cogens
character of the offences involved precludes even persistent objection.
 In Jones and Others v. Kingdom of Saudi Arabia , the House of lords
took a narrow view and held , no evidence exist whereby state
recognize an international obligation to exercise universal jurisdiction
over claims arising from breaches of Jus Cogens.
 The fact that an international crime does not attract universal
jurisdiction under international law does not necessarily mean that it
may not attract broad extra territorial jurisdiction(similar to universal)
under domestic law . For example Article 5(1) and 5(2),(3) of UN
Torture Convention 1948.
 In Austrian Universal Jurisdiction case , accused , native of Yugoslavia
committed crime there then went to Austria . Yugoslavia wanted the
accused to be extradited but Austria refused and claimed universal

14. UNIVERSAL
JURISDICTION(CONTD…)
Jurisdiction to try the accused for the offences committed in Yugoslavia as
the crimes committed were punishable under Austrian Code if had been
committed in Austria.
 In similar manner , national courts have upheld the universality
principle with regards to crimes defined under municipal criminal
statutes ,for a number of offences.

15. CONCLUSION
 The principles of Jurisdiction are aimed not to spare any person who is
threat to the entire national order.
 The Universality Principle is an apt technique to tackle with the
modern day crime i.e. cyber crime ,piracy.
 In Universality Principle much emphasis should be given to the consent
of the States related to the subjection of a particular offence under the
said principle either by way of treaties or custom.