Document Type

Article

Publication Date

1982

Abstract

The term jurisdiction may be defined as the authority to affect legal interests -- to prescribe rules of law (legislative jurisdiction), to adjudicate legal questions (judicial jurisdiction) and to enforce judgments the judiciary made (enforcement jurisdiction). The definition, nature and scope of jurisdiction vary depending on the context in which it is to be applied. United States domestic law, for example, defines and applies notions of jurisdiction pursuant to the United States constitutional provisions relating to the separation of powers. Within the United States, jurisdiction is defined and applied in a variegated fashion depending on whether a legal problem is within the federal or the state sphere. Among the states, the definition and scope of jurisdiction also vary.

The international setting gives rise to another set of definitions and applications of the notion of jurisdiction. International law has failed to develop jurisdictional rules that are as comprehensive or precise as the domestic jurisdictional laws of individual nations. Indeed, international law has tended to focus on penal rather than civil jurisdiction. Moreover, the set of rules relating to criminal legislative, judicial and enforcement jurisdiction in the international setting is not as well developed as the parallel domestic laws of the various nations. Generally, this article will discuss the problem of jurisdiction over extraterritorial crime by analyzing the interaction between United States domestic and international law relating to jurisdiction. In 1935, Harvard Research on International Law (Harvard Research) identified five theories of criminal jurisdiction: territorial; protective; nationality; universal; and passive personality. These theories, representing the possible bases for a state to claim jurisdiction over actions committed abroad and proscribed by its criminal law, provide the organizational format for this article.

Publication Citation

73 J. Crim. L. & Criminology 1109 (1982).