Custom, Power, and the Power of Rules: International Relations and Customary International Law

By Michael Byers | Go to book overview

4
The principle of jurisdiction

Jurisdiction may be defined generally as the authority to engage in activities of control or regulation within a certain geographic area. In international law, jurisdiction appears always to be linked to territory in some way. It is a defining characteristic of statehood and an important point of State interaction.1 As Huber explained in his judgment as sole arbitrator in the 1928 Island of Palmas Case:

The development of the national organisation of States during the last few centuries and, as a corollary, the development of international law, have established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations.2

More recently, Higgins has commented:

There is no more important way to avoid conflict than by providing clear norms as to which state can exercise authority over whom, and in what circumstances. Without that allocation of competences, all is rancour and chaos.3

Initially, it might appear that jurisdiction is not so much a principle of international law which may qualify applications of power, as a principle which recognises, and is therefore dependent on, applications of power that result from the absolute control that each State has over its own territory. Yet such an analysis does not explain how jurisdiction and a lack of State control may co-exist in certain situations, such as during civil wars4

____________________
1
See generally: Mann (1964); Akehurst (1972–73); Bowett (1982a); Mann (1984); and pp. 10–13 above. It should, however, be noted that traditional conceptions of 'territorial' jurisdiction are currently under some challenge, not least by developments in international environmental law. See generally: Kiss and Shelton (1991) 115–54; Raul and Hagen (1993); Schwartz (1993); and the discussion of An Act to Amend the Coastal Fisheries Protection Act (SC 1994, c. 14, reproduced in (1994) 33 ILM 1383) at pp. 97–101 below.
2
Island of Palmas Case (1928) 2 Reports of International Arbitral Awards 829, 838.
3
Higgins (1994) 56.
4
See Akehurst (1992); and Nolte (1993) 621–6.

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