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International Law Studies - Volume 62 The Use of Force, Human Rights, and General International Legal Issues Richard B. Lillich & John Norton Moore (editors)

JURISDICTION
Myres S. McDougal
In public and private international law, the word "jurisdiction "-in etymological origin, speaking the law-is used to refer to the competence of a state-the authority of a state as recognized by international decision-makers and by other states-to make law for, and to apply law to,particular events or particular controversies. I emphasize the word particular in order to distinguish, as :.will be seen below, the claims to authority with which we are here concerned from other and more comprehensive claims of state officials to continuous control over bases of power, such as territory and people. It is in this sense-in the sense of competence or authority to prescribe and apply law to particular events-that the subject of Jurisdiction is important to Naval Officers and it is in this sense that, with your permission, I propose to explore the subject. It needs no emphasis to this audience that the Naval Officer is both the agent of the authority of one state and a possible object of the application of authority of other states. The authority of any particular officer may not be coextensive with that of his state, depending upon the hierarchy of command and degrees of delegation, but for determining the lawfulness of a controverted exercise of authority by or upon an officer in events involving other states, it is commonly necessary to consider the comprehensive authority of a state as against other states. It has probably already been sensed that this common use of the term "jurisdiction, " which I suggest we adopt, is not simple. The term does in fact refer to certain reciprocal processes of claim and of decision, of assertions of authority by one state against other states and of responding acceptance or rejection by international decisionmakers or other states, which may become quite complex. In parenthesis, and by way of apology, may I say that in order to be both comprehensive and brief I must of necessity make my remarks somewhat abstract. The facts of the controversies with which we deal are, however, often most dramatic. A citizen of the United States shoots a citizen of Brazil on board a Swiss plane in flight from Shannon to Gander. A citizen of the United States seeks to levy upon a warship of Napoleon anchored in an American harbor, claiming the ship as his private property formerly seized by violence. Canadian officials invade New York State and set an American barge adrift over Niagara Falls. The United States shoots an artificial satellite into outer space, which traverses the air space of the Soviet Union as it departs or returns. A beautiful lady from the Soviet Union leaps from an upper floor of the Soviet Consulate in New York

The opinions shared in this paper are those of the author and do not necessarily reflect the views and opinions of the U.S. Naval War College, the Dept. of the Navy, or Dept. of Defense.

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City into the waiting arms of a New York policeman. A soldier of the United States commits all the crimes in the book while on holiday in France. A ship flying the French flag rams a Turkish llhip in the Sea of Marmora, killing citizens of various nationalities. The wife of the Chinese delegate to the United Nations sues him for divorce and alimony in New York City. The United States tests a nuclear weapon in the Pacific, and creates a molten inferno where once there was an inhabited tropical paradise-and so on. May I ask you to recall, as I talk, cases such as these and perhaps other cases from your experience as an officer, or from our directive, in order to give flesh and blood to the very bare remarks I must make? For the purpose of attempting to subdue the complexity of our subject, I propose that we organize our inquiry into three main, though not equally extensive, parts: First, and briefly, an examination of the factual process in which states assert, as against each other, claims to exercise authority with respect to particular even ts. Next, and in somewhat more detail, an exploration of the processes of decision by which the lawfulness of claims, with some being accepted and some rejected, is determined. Finally, and as fully as our time will permit, an examination of the more important trends in decision and established policies with respect to claims relating to the various spatial dO!llains: land, waters, air space, and outer space. This latter inquiry may enable us to identify some of the explanatory factors which have conditioned different decisions and policies with respect to the different spatial domains and, hence, cautiously to project certain possible developments into the future. We begin with brief reference to the factual process in which claims to jurisdiction are asserted. This process includes certilin claimants making, as against each other, certain claims to the exercise of authority, with ,respect to events occurring within different spatial domains, by differing methods, for various general and specific objectives, and under greatly varying conditions. The claimants, who assert as against each other claims to jurisdiction, are the officials of nation-states, of territorially organized communities. As such officials, they have at their disposal certain bases of power, including certain continuous, but varying, control over resources, over people, and over community value processes. The claims to exercise authority we have already described as claims to competence to make and apply law. In conventional terms such competence is sometimes described as legislative, executive, judicial, and administrative. Such conventional terms refer, however, more precisely to institutions rather than to competences or functions. A more comprehensive and scientific d.escription might make reference to intelligence, recommending, prescribing, invoking, applying, appraising and terminating functions. For our immediate purposes, purposes relevant to the more important concerns of the Naval Officer, a focus upon !he prescribing and applying functions, the making and execution of law, will perhaps suffice. It is, however, important to keep clearly in mind the distinction alluded to above between the comprehensive claims by state officials to those continuous controls over resources, people, and value processes which constitute their general and enduring bases of power and the more particular claims to exercise authority with respect to occasional, episodic events which are ordinarily described as claims of jurisdiction. The former claims insist that "this is my territory" or "this is my national" or "these are my value processes" for all purposes; the latter claims insist only that, because of certain factors of

636 spatial location or of nationality or of impact upon national interest and so on, the claimant can make law for or apply law to a particular event in controversy. These very different factual claims are governed by very different technical rules which seek quite different policies. The particular events with respect to which jurisdiction is claimed may, of course, occur in anyone of the spatial domains: upon the territory of the claimant state or of another state, upon the high seas, within the air space over the claimant state or another state or the high seas, or in outer space. The complexity in institutional detail and range of spatial impact of such particular events may, as was seen in the cases alluded to above, vary greatly. The actors in such events may be official or non-official, individual or group, corporate or non-corporate, national or nonnational, civilian or military. The values at stake in the interaction may embrace security, power, wealth, enlightenment, respect, rectitude, or others. The changes being contested may have taken place by agreement or by deprivation, by consent or by coercion. The territorial range of the impacts of the significant events may extend to one or several states and mayor may not include the state of the claimant. Resources affected may vary from land to ships and aircraft or spacecraft or other movables, and may be variously located. States other than that of the claimant mayor may not have engaged in "acts of state" with respect to the same contested value changes and, where such acts of state are asserted, they may be legislative, executive, or judicial. The state whose prior acts of state are invoked mayor may not have been recognized by the claimant or other states, and so on. The methods by which claims are asserted are commonly diplomatic in form, ranging from unilateral assertions by a single state through the multiple variations of group or multilateral claim. Yet omnipresent behind the diplomatic forms, and employed in varying combinations and with differing degrees of intensity and overtness, are the other familiar instruments of policy: ideological, economic, and military. The objectives for which officials assert claims to jurisdiction embrace all the objectives characteristic of the nation-state: in the most abstract form, the protection and enhancement of the bases of power of self and of allies, the weakening and disintegration of the bases of power of enemies and potential enemies, and the effectiv~ employment of all available bases of power for maximization of all the values of the territorial body politic. The conditions under which claims are asserted include, again in most abstract statement, all the variables of a global power process, of a world arena in which the territorially organized communities which we call states, and other participants such as transnational political parties, pressure groups, and business associations, continuously engage each other with all instruments of policy. Among the variables, or factors, of greatest significance for our immediate purposes, purposes of accounting for past or projecting future decisions about jurisdiction may be mentioned: the number, spatial location, and relative strength of the participants in the arena; the state of technological development for purposes of communication, transport, production, and destruction; and the degrees of intensity of the participants' expectations of violence. With this brief orientation in the factual process of claim, let us now turn to the other and reciprocal process, the process of decision by which the lawfulness of asserted claims is determined. This second process includes, in comprehensive formulation, certain established decision-makers, seeking certain shared objectives, by the elaboration and application of certain authoritative principles, under certain conditions. The decision-makers established by

637 the authoritative perspectives of the participants in the world arena include, of course, the officials of international tribunals and organizations and of specially constituted arbitral tribunals. But by far the most important decisionmakers, important both in the quantitative terms of the number of decisions made and in the qualitative terms of the significance of the issues determined, are those same nation-state officials who in another capacity are mere claimants. The decisions of these officials are taken in countless interactions in foreign offices, special conferences, national courts, national legislatures, and so on. It may perhaps bear emphasis, because so much misconception prevails upon the point, that this does not mean that there are no objective decision-makers for questions of jurisdiction, or of international law generally. Though any particular official of a state may on occasion be a claimant for his state, on multiple other occasions he is among the officials of the seventy-nine odd states who in a given instance are passing upon the lawfulness of the claims of the officials of the eightieth state. In this latter capacity the state official may be just as objective, and just as much moved by perspectives shared in the whole community of statcs, as a municipal decision-maker upon internal problems is objective and is moved by perspectives shared in the territorial community which he represents. The duality in function of nationstate officials does not represent a lack of internationalization and objectivity in function, but rather a lack of specialization and of centralization. The shared objectives of the established decion-makers of the world arena include, of course, the characteristic objectives of nation-states mentioned above, both of protecting bases of power and of promoting employment of such bases in the maximum production of all values. Beyond these, however, are certain other objectives which are a function of the fact that a number of such territorially organized communities must interact in a common world arena. Among the objectives of this second type perhaps the most important is that of creating a certain stability in the expectations of all decision-makers that the aggregate flow of cases will be handled in certain agreed ways, with a minimum assertion of raw, effective power-a stability of expectation of uniformity in decision which will, in other words, permit rational power and other value calculations with a minimum disruption from unrestrained coercion and violence. Still another such objective is that of promoting efficiency not only in the disposition of controversies but also in all value interactions across boundaries and in the exploitation of world resources best enjoyed in common. It may be recalled that in the Hydrogen Bomb article the major policy purpose which we found to inspire the whole regime of the law of the sea was "not merely the negation of restrictions upon navigation and fishing but also the· promotion of the most advantageousthat is, the most conserving and fully utilizing-peaceful use and development by all peoples of a great common resource covering two-thirds of the world's surface, for all contemporary values. " The principles which established decision-makers elaborate and apply, for achievement of all these shared objectives, are of manifold reference and varying degrees of generality. For brief indication, they may be described as of three different types. The first type is composed of those principles sometimes called the "bases" of jurisdiction-the principle of territoriality, the principle of nationality, the protective theory, the principle of passive personality, and the principle of universality in the name of which a state, which has acquired some effective control over persons or resources, asserts its authority and is in fact authorized by external decision-

638 makers to exercise such authority to make and apply its law to certain particular events in which such persons or resources have been involved. 'fhe second type of principle is composed of those principles by which a state, though it has acquired such effective control over persons or resources, decides, or is required to decide, that it will yield its effective power in deference to the "acts of state" or the "immunities" of another state and permit that state to make and apply its law to the events in question. The third type of principle is constituted by those principles which individualize both sets of complementary principles indicated above, both those embodying the primary assertions of authority and those embodying deferences to others, to take into account the special characteristics of the various spatial domains: territory, the high seas, air space, and outer space. The point which commonly requires most emphasis to non-lawyers is that these various principles are not designed as precise and rigid commands, arbitrarily dictating preordained conclusions, but rather as flexible and malleable guides to rational and reasonable decision. A little work with the actual decisions quickly makes it clear, first, that the major principles, asserting authority and yielding deference, are complementary in form, permitting decision in any direction; and, secondly, that within anyone set of principles the major concepts are so vaguely defined as to permit the ascription of an infinite variety of concrete meaning, and hence, the justification of a considerable number of alternatives in decision. The function of the various principles is, accordingly, not dogmatically to dictate decision but rather to focus the attention of the decision-maker upon all the significant features of a context in controversy, and, hence, to assist the decision-maker in assessing the relevance of such features in relation to each other. Thus, the territoriality principle points to the locus of events in controversy, and the range of their territorial impact, and emphasizes the importance of the resource base in the community process in which people apply institutions to resources for the production of values. The "territorial" principle is, in other words, but an elliptical expression of a "community" principle. Similarly, the nationality principle points to the primary community allegiance of the actors in an event and emphasizes the importance of manpower and membership in community value processes. The protective principle, similarly, in authorizing a state to take measures against direct attack upon its security and other values, though the events occur abroad, constitutes an explicit recognition of the major policy framework which we have suggested for the whole subject of jurisdiction. The passive personality theory that the state of the nationality of an injured party has jurisdiction wherever events occur, and equivalent theories permitting the diplomatic protection of citizens abroad, again emphasizes the importance of community membership. The universality principle, similarly, emphasizes the common interest of all states in repressing unauthorized violence upon the high seas, war crimes, slave trading, and comparable deprivations of human dignity. The doctrine of deference to the "acts of state" of another government, to turn to some of the complementary principles, is a clear expression of the recognized need for reciprocal tolerance and of the sanctioning fear of retaliation. The principles embodying immunity for state officials and organs, for ambassadors and warships, are, finally, expressions of concession to mutual dignity and efficiency in indispensable intercourse. _ The function of all such principles might perhaps be said, in sum, to be to authorize the decision-makers of the state most affected by any particular events to decide the law for that event, upon

639 condition that it take into account the degrees of involvement of the values of other states in such, and other comparable, events. The conditions in the context of which established decision-makers must operate are, in most general formulation, of course, the same as for claimants. Among the factors most significant for trend in decision may be mentioned, however, both the degree of interdependence in fact between states for the achievement of demanded values and the degree to which decision-makers have knowledge of whatever interdependence in fact exists. Such factors may vitally affect both trends in decision and the sanctions which are available for making decisions effective. With orientation now in both the factual process of claim and the authoritative process of decision, let·us tum, finally, to the promised examination of the more important trends in decision and established policies with respect to the various spatial domains. We begin with the land-base of a state, and will talk of "territory, " though territory is a legalistic concept which embraces, as is well known, not merely land but certain waters and air space as well. It is a commonplace, today, of both public and private international law that the territorial principle of jurisdiction remains the most basic organizing principle in a world order constituted primarily of, and by, territorially organized states. It is this principle which, first, authorizes the decision-makers of any particular territorial community in which resources are located and events occur, as representatives of the community most concerned with such resources and most affected by such events, to prescribe and apply law with respect to such resources and events; and, second, permits the decisionmakers of all such territorial communities, considered as a larger global community, to order, by the process of mutual deference and tolerance indicated above in application of this principle, the larger affairs transcending the boundaries of any single community with the highest degree of economy and fairness and the highest degree of stability in common expectation. One of the clearest expositions of this principle, with indication of its roots and function, is that of Professor AIf Ross of Denmark. I quote: It is a historical fact that the various states are separated from each other and bounded territorially. This of course is not fortuitous but deeply rooted in the nature of the case. The states are prirriarily an organization of power. Each of them claims to be, within a certain territory separated from others, the supreme power in relation to its subjects (a self-governing community). The simplest principle, almost a matter of course, for the individualization and separation of these competing instruments of power is the spatial or territorial. 1 Professor Ross adds: In conformity herewith the fundamental international legal norm of the distribution of competence is to the effect that every state is competent, and exclusively competent, within its own territory to perform acts whichactually or potentially-consist in the working of the compulsory apparatus of the state (the maxim of territorial supremacy).2 The most important aspect, the hallmark, of this principle is, as Professor Ross indicates, in its prescription of exclusivity for the territorial sovereign. The principle serves not merely as an expression of the comprehensive power of the territorial sovereign to exercise its authority over all resources, persons, and activities located, acting, or occurring within its domain but also as a prohibition addressed to the officials of

640 all other states requiring them to keep hands off and out. It is, further, by this principle that the territorial sovereign is authorized to subordinate to its effective power all the various functional groups; parties, pressure groups, and private associations, domestic or foreign, which operate within its boundaries. This notion of the supremacy of the territorial sovereign over all nonterritorial representatives is, indeed, basic to the very conception of the territorially organized state and its emergence was undoubtedly conditioned by the same factors which conditioned the emergence of the nationstate. In days when the strategy of attack was by horizontal encirclement and with primitive weapons, spatial contiguity, walls, and moats, and fixed boundaries were perhaps found to be an indispensable asset in defense; and security and the greater production of demanded values were found to depend upon the monopolization of territorial authority and control and not in its common enjoyment with functional or other nonterritorial competitors. It is familiar learning that certain internal waters, a still debated extent of air space, and in certain measure a narrow belt of the oceans, called the "territorial sea," are universally comprehended within the concept of "territory" for purposes of jurisdiction. The degree of exclusivity in authority which is claimed with respect to internal waters and the territorial sea is, however, commonly somewhat less than with respect to land. The officials of states other than the territorial state are under certain conditions permitted to exercise authority with respect to events occurring upon ships which fly their flag even when such ships are in internal waters. Still greater generosity is commonly accorded when such ships are tr aversing the territorial sea; this generosity is, of course, summed up in the much discussed right of innocent passage. The broad scope of the jurisdiction which state officials claim under the territorial principle of jurisdiction may perhaps best be demonstrated by reference to one subordinate application of the principle which is known as the doctrine of "impact territoriality." The tenor of this doctrine is that even though certain events occur beyond the boundaries of the claimant state, perhaps even within the domain of another state, if such events have important consequences to the value processes of the claimant state, the latter may lawfully apply whatever effective control it may have over the actors in such events, or the resources of such actors, for the reasonable protection of its interests. Thus, the United States has, under this doctrine, justified the application of its antitrust statutes to agreements, made abroad between nonnationals, and contemplating performance only abroad, when such agreements were clearly intended to affect prices and production within the United States. Some other states, as well as a number of American lawyers, have contested this application by the United States of the doctrine of impact territoriality, contending that the doctrine is only applicable to such simple matters as the shooting of guns across boundaries, but the practice of the United States would'seem to be well within the compass of a broad policy authorizing decision by the territorial community most importantly affected by particular events. For purposes of dispelling a common misconception, it may be desirable to mention also a doctrine converse to that of impact territoriality. The import of this doctrine is that when a state exercises its jurisdiction by application of its authority to persons or resources actually physically present within its territorial domain-that is, controlling persons or resources located within the spatial sphere of its exclusive sovereignty-the mere fact that the exercise of such jurisdiction may have factual

641 consequences, factual effects, beyond the boundaries of the acting state, whether upon the high seas or in the domain of another state, is legally irrele: vant In our contemporary interdependent world, in which everybody's activities affect those of everybody else, no other conclusion could be tolerable. If a state's laws were invalid merely because their application has effects upon the interests and activities of people beyond its boundaries, government could not go on. The application by the United States of its antitrust laws, for example, to persons within its domain obviously affects business activities over all the world; and what is true of antitrust laws is no less true of commercial laws generally, immigration laws, maritime laws, monetary controls, and so on. It is, of course, from their territorial base that state officials project all the controls they assert over their nationals abroad and over nonnationals, through the protective, passive personality, and universality theories, for activities beyond the territorial domain of the claimant state. The details of all these important claims to authority, fully sanctioned in most part by international law, we must perforce leave to others or for another day. It may, however, be noted that the nationality principle extends not only to individuals but also to ships, aircraft and corporations, and perhaps even to spacecraft, and that under the nationality principle the United States has asserted authority to control its citizens in almost every aspect of life, from taxes through the gamut of crime and regulation of business activity to death for treason. It should be remembered, also, in final consideration of the territorial principle, that state officials, even when they have effective control over persons and resources, may on occasion be required by certain principles of "act of state" and "immunity," completely complementary to the various principles which we 'have been considering, to forego the exercise of their own authority and to yield control to others. The details of these principles ramify through various requirements with respect to what constitutes appropriate legislative, executive, and judicial acts of state which must be honored by other states, and through a lot of relatively uninteresting, though not entirely unimportant, niceties with respect to the various exemptions of heads of state, diplomats, public ships, and public corporations and agencies. From dull, dry land, let us now turn, after much too long, to the oceans of the world. Here, as you all know, we find a completely different development Because of various historical conditions, including most notably perhaps the fact of a multipolar arena, exhibiting a number of relatively equal participants, and a state of technological and industrial development in which nobody was able to chase everybody else off, emphasis in the law of the sea for some centuries has not been upon exclusivity in use but upon use in common. The experience of 150 years at least has shown that the oceans of the world can be used concurrently by all, without any special injury to anyone, for the great common advantage. By that elaborate set of complementary doctrines, known as the customary law of the sea, it has been possible effectively to internationalize the oceans of the world, without the establishment of much special international machinery. One set of these doctrines, generally referred to under the label of "freedom of the seas," was formulated, and is commonly invoked, to protect unilateral claims to ,navigati