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Jurisdiction (from Latin juris]] 'law' and dictio]] 'speech' or 'declaration') is the legal term for the Right granted to a legal entity to enact justice. In like the United States, the concept of jurisdiction applies at multiple levels (e.g., local, Federated state, and federal).
Jurisdiction draws its substance from international law, conflict of laws, constitutional law, and the powers of the executive and Legislature of government to allocate resources to best serve the needs of society.
However, it is often at the discretion of each nation whether to co-operate or participate. If a nation does agree to participate in activities of the supranational bodies and accept decisions, the nation is giving up its sovereign authority and thereby allocating power to these bodies.
Insofar as these bodies or nominated individuals may resolve disputes through judicial or quasi-judicial means, or promote treaty obligations in the nature of laws, the power ceded to these bodies cumulatively represents its own jurisdiction. But no matter how powerful each body may appear to be, the extent to which any of their Legal judgment may be enforced, or proposed treaties and conventions may become, or remain, effective within the territorial boundaries of each nation is a political matter under the sovereign control of each nation.
The idea of universal jurisdiction is fundamental to the operation of global organizations such as the United Nations and the International Court of Justice (ICJ), which jointly assert the benefit of maintaining legal entities with jurisdiction over a wide range of matters of significance to nations (the ICJ should not be confused with the ICC and this version of "universal jurisdiction" is not the same as that enacted in the War Crimes Law (Belgium), which is an assertion of extraterritorial jurisdiction that will fail to gain implementation in any other state under the standard provisions of public policy). Under Article 34 Statute of the ICJ only nations may be parties in cases before the Court and, under Article 36, the jurisdiction comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. But, to invoke the jurisdiction in any given case, all the parties have to accept the prospective judgment as binding. This reduces the risk of wasting the Court's time.
Despite the safeguards built into the constitutions of most of these organizations, courts and tribunals, the concept of universal jurisdiction is controversial among those nations which prefer unilateral to multilateral solutions through the use of executive or military authority, sometimes described as realpolitik-based diplomacy.
Within other international contexts, there are intergovernmental organizations such as the World Trade Organization (WTO) that have socially and economically significant dispute resolution functions but, again, even though their jurisdiction may be invoked to hear the cases, the power to enforce their decisions is at the will of the nations affected, save that the WTO is permitted to allow retaliatory action by successful nations against those nations found to be in breach of international trade law. At a regional level, groups of nations can create political and legal bodies with sometimes complicated patchworks of overlapping provisions detailing the jurisdictional relationships between the member states and providing for some degree of harmonization between their national legislative and judicial functions, for example, the European Union and African Union both have the potential to become federated nations although the political barriers to such unification in the face of entrenched nationalism will be very difficult to overcome. Each such group may form transnational institutions with declared legislative or judicial powers. For example, in Europe, the European Court of Justice has been given jurisdiction as the ultimate appellate court to the member states on issues of European law. This jurisdiction is entrenched, and its authority could only be denied by a member nation if that member nation asserts its sovereignty and withdraws from the union.
In the United States, the Supremacy Clause of the United States Constitution makes all treaties that have been ratified under the authority of the United States and customary international law to be a part of the "Supreme Law of the Land" (along with the Constitution itself and acts of Congress passed pursuant to it) (U.S. Const.art. VI Cl. 2) As such, the law of the land is binding on the federal government as well as on state and local governments. According to the Supreme Court of the United States, the treaty power authorizes Congress to legislate under the Necessary and Proper Clause in areas beyond those specifically conferred on Congress ( Missouri v. Holland, 252 U.S. 416 (1920)).
To deal with the issue of forum shopping, nations are urged to adopt more positive rules on conflict of laws. The Hague Conference and other international bodies have made recommendations on jurisdictional matters, but with the encouragement of on a contingent fee continue to shop for forums.
Territorial principle: This principle states that the State where the crime has been committed may exercise jurisdiction. This is one of the most straightforward and least controversial of the principles. This is also the only principle that is territorial in nature; all other forms are extraterritorial.Gideon Boas, Public International Law: Contemporary Principle and Perspectives (Edward Elgar 2012) pp. 251–254.Malcolm Shaw, International Law (6th edition, Cambridge University Press 2008) pp. 652–659.
Nationality principle (also known as the Active Personality Principle): This principle is based around a person's nationality and allows States to exercise jurisdiction when it comes to their nationality, both within and outside the State's territory. Seeing as the territoriality principle already gives the State the right to exercise jurisdiction, this principle is primarily used as a justification for prosecuting crimes committed abroad by a States nationals.Gideon Boas, Public International Law: Contemporary Principle and Perspectives (Edward Elgar 2012) pp. 255–256.Malcolm Shaw, International Law (6th edition, Cambridge University Press 2008) pp. 659–664. There is a growing trend to allow States to also apply this principle to permanent residents abroad as well (for example: Denmark Criminal Code (2005), sec 7; Finland Criminal Code (2015), sec 6; Iceland Criminal Code (2014), art 5; Latvia Criminal Code (2013), sec 4; Netherlands Criminal Code (2019), art 7; Norway Criminal Code (2005), sec 12; Swedish Criminal Code (1999), sec 2; Lithuania Criminal Code (2015), art 5).
Passive Personality Principle: This principle is similar to the Nationality Principle, except you are exercising jurisdiction against a foreign national that has committed a criminal act against its own national. The idea is that a State has a duty to protect its nationals and therefore if someone harms their nationals that State has the right to prosecute the accused.Gideon Boas, Public International Law: Contemporary Principle and Perspectives (Edward Elgar 2012) pp. 257–258.Malcolm Shaw, International Law (6th edition, Cambridge University Press 2008) pp. 664–666.
Protective principle: This principle allows States to exercise jurisdiction when it comes to foreign nationals for acts committed outside their territory that have or are intended to have a prejudicial impact upon the State. It is especially used when it comes to matters of national security.Gideon Boas, Public International Law: Contemporary Principle and Perspectives (Edward Elgar 2012) pp. 256–257.Malcolm Shaw, International Law (6th edition, Cambridge University Press 2008) pp. 666–668.
Universality principle: This is the broadest of all the principles. The basis is that a State has the right, sometimes even the obligation, to exercise jurisdiction when it comes to the most serious violations of international criminal law; for example genocide, crimes against humanity, extrajudicial executions, war crimes, torture, and forced disappearances. This principle also goes further than the other principles as there is attached to it the obligation to either prosecute the accused or extradite them to a State that will, known as aut dedere aut judicare.Gideon Boas, Public International Law: Contemporary Principle and Perspectives (Edward Elgar 2012) pp. 258–259.Malcolm Shaw, International Law (6th edition, Cambridge University Press 2008) pp. 668–686.
In effect from 1 March 2002, all the European Union member states except Denmark accepted Brussels Regime, which makes major changes to the Brussels Convention and is direct effect in the member nations. Council Regulation (EC) 44/2001 now also applies as between the rest of the EU Member States and Denmark due to an agreement reached between the European Community and Denmark. In some legal areas, at least, the reciprocal enforcement of foreign judgments is now more straightforward. At a national level, the traditional rules still determine jurisdiction over persons who are not domiciled or habitually resident in the European Union or the Lugano area.
When the jurisdictions of government entities overlap one another—for example between a state and the federation to which it belongs—their jurisdiction is a shared or concurrent jurisdiction. Otherwise, one government entity will have exclusive jurisdiction over the shared area. When jurisdiction is concurrent, one government entity may have supreme jurisdiction over the other entity if their laws conflict. If the executive or legislative powers within the jurisdiction are not restricted, or have only limited restrictions, these government branches have plenary power such as a national policing power. Otherwise, an enabling act grants only limited or enumerated powers.
Child custody cases in the U.S. are a prime example of jurisdictional dilemmas caused by different states under a federal alignment. When parents and children are in different states, there is the possibility of different state court orders over-ruling each other. The U.S. solved this problem by adopting the Uniform Child Custody Jurisdiction and Enforcement Act. The act established criteria for determining which state has primary jurisdiction, which allows courts to defer the hearing of a case if an appropriate administrative agency determines so.
A court whose subject matter jurisdiction is limited to certain types of controversies (for example, suits in admiralty law or suits where the monetary amount sought is less than a specified sum) is sometimes referred to as a court of special jurisdiction or court of limited jurisdiction.
In U.S. federal courts, courts must consider subject matter jurisdiction sua sponte and therefore recognize their own lack of jurisdiction even if neither party has raised the matter.
Certain courts, particularly the United States Supreme Court and most state supreme courts, have discretionary jurisdiction, meaning that they can choose which cases to hear from among all the cases presented on appeal. Such courts generally only choose to hear cases that would settle important and controversial points of law. Though these courts have discretion to deny cases they otherwise could adjudicate, no court has the discretion to hear a case that falls outside of its subject matter jurisdiction.
However, in a special class of cases, the U.S. Supreme Court has the power to exercise original jurisdiction. Under , the Supreme court has original and exclusive jurisdiction over controversies between two or more states, and original (but non-exclusive) jurisdiction over cases involving officials of foreign states, controversies between the federal government and a state, actions by a state against the citizens of another state or foreign country.
Federal courts are the High Court of Australia, the Federal Court of Australia, the Family Court of Australia, and other subsidiaries. Federal courts exercise federal jurisdiction Judiciary Act 1903 (Cth) Pt. IV. - the judicial powers granted to the federal government by the constitution of Australia. Commonwealth of Australia Constitution Act (Cth) s 71. The extent of that jurisdiction is outlined in both the Constitution and legislation enacted by the federal parliament. For example, section 73(ii) of the Constitution empowers the High Court to hear appeals from the supreme court of any state, and from other courts exercising federal jurisdiction. Likewise, section 39B(1A)(c) of the Judiciary Act 1903 (Cth) empowers the Federal Court of Australia to hear any matter arising under laws enacted by the federal parliament.
Similarly, the jurisdiction of state courts is created by the states’ constitutions and is further delineated by legislation passed by their respective parliaments. In the Constitution of Queensland 2001 (QLD), it is written at s58(1) that the Supreme Court of the state has all jurisdiction necessary for the administration of justice in Queensland. That is the extent of its jurisdiction.
In New South Wales, the courts’ jurisdiction is not mentioned in the constitution. Instead, the state’s legislature is empowered to make laws for the peace, welfare, and good governance of New South Wales. Constitution Act 1902 (NSW) s5. Amongst these laws, it is stated in section 23 of the Supreme Court Act 1970 (NSW) that the Supreme Court shall have all jurisdiction necessary for the administration of justice in NSW.
In Victoria, that same power is conferred by section 85(1) of its constitution. Constitution Act 1975 (Vic).
In summary, the jurisdiction of the courts of each state extends (at a basic level) to matters occurring within their state. Meanwhile, the jurisdiction of the Federal Court of Australia is over matters arising under federal law. The jurisdiction of the High Court is to hear appeals from states’ Supreme Courts, the Federal Court, and over matters prescribed in the Constitution of Australia. Commonwealth of Australia Constitution Act (Cth) s 75, 76.
Appellate jurisdiction is corrective in nature. There, courts examine how lower previous decision-makers answered questions of law, whether an error was made in that process, as well as whether and how that error ought to be rectified. Their job is to correct errors made in answering the said questions - essentially, to correct errors of law.
The mere existence of criteria to transfer matters over to different courts nonetheless means that parties have an interest in commencing proceedings in the most convenient jurisdiction to them. The advantage conferred onto first movers is not exclusive to the Australian federal court system, parties involved in international disputes will already be familiar with that concept. However, the threshold for intra-Australia transfer is notably lower than that pertaining to international transfer.
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