Jurisdiction

Source: Wikipedia, the free encyclopedia.
This article is about civil jurisdiction in a state. For religious or ecclesiastical jurisdiction, see Ecclesiastical jurisdiction.

Jurisdiction (from

legal authority granted to a legal entity to enact justice. In federations like the United States, the concept of jurisdiction applies at multiple levels (e.g., local, state
, and federal).

Jurisdiction draws its substance from

government to allocate resources to best serve the needs of society
.

International dimension

Generally, international laws and treaties provide agreements which

UN charter. These are equality of states, territorial sovereignty and non-intervention.[1] This raises questions of when can many states prescribe or enforce jurisdiction. The Lotus case establishes two key rules to the prescription and enforcement of jurisdiction. The case outlines that jurisdiction is territorial and that a state may not exercise its jurisdiction in the territory of another state unless there is a rule that permits this.[2] On that same note, states enjoy a wide measure of discretion to prescribe jurisdiction over persons, property and acts within their own territory unless there was a rule that prohibits this.[2]

Political issue

Supranational organizations provide mechanisms whereby disputes between nations may be resolved through arbitration or mediation. When a country is recognized as de jure, it is an acknowledgment by the other de jure nations that the country has sovereignty
and the right to exist.

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

judgments
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 each nation.

International and municipal

The fact that international organizations, courts and tribunals have been created raises the difficult question of how to co-ordinate their activities with those of national courts. If the two sets of bodies do not have concurrent jurisdiction but, as in the case of the International Criminal Court (ICC), the relationship is expressly based on the principle of complementarity, i.e., the international court is subsidiary or complementary to national courts, the difficulty is avoided. But if the jurisdiction claimed is concurrent or, as in the case of International Criminal Tribunal for the former Yugoslavia (ICTY), the international tribunal is to prevail over national courts, the problems are more difficult to resolve politically.

The idea of

public policy). Under Article 34 Statute of the ICJ[3]
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

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.

Law

The standard treaties and conventions leave the issue of implementation to each nation, i.e. there is no general rule in international law that treaties have

citizens
in those nations can invoke the jurisdiction of local courts to enforce rights granted under international law wherever there is incorporation. If there is no direct effect or legislation, there are two theories to justify the courts incorporating international into municipal law:

  • Monism
This theory characterizes international and municipal law as a single legal system with municipal law subordinate to international law. Hence, in the
European Convention for the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights. In nations adopting this theory, the local courts automatically accept jurisdiction to adjudicate on lawsuits
relying on international law principles.
  • Dualism
This theory regards international and municipal law as separate systems so that the municipal courts can only apply international law either when it has been incorporated into municipal law or when the courts incorporate international law on their own motion. In the
parliamentary supremacy
permits the legislature to enact any law inconsistent with any international treaty obligations even though the government is a signatory to those treaties.

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)).

International

This concerns the relationships both between courts in different jurisdictions, and between courts within the same jurisdiction. The usual legal doctrine under which questions of jurisdiction are decided is termed forum non conveniens.

To deal with the issue of

litigants with the encouragement of lawyers on a contingent fee
continue to shop for forums.

Jurisdictional principles

Under international law there are different principles that are recognized to establish a state's ability to exercise criminal jurisdiction when it comes to a person. There is no hierarchy when it comes to any of the principles. States must therefore work together to solve issues of who may exercise their jurisdiction when it comes to issues of multiple principles being allowed. The principles are Territorial Principle, Nationality Principle, Passive Personality Principle, Protective Principle, Universality Principle

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.[4][5]

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.[6][7]
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.[8][9]

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.[10][11]

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.[12][13]

Supranational

At a supranational level, countries have adopted a range of treaty and convention obligations to relate the right of individual litigants to invoke the jurisdiction of national courts and to enforce the judgments obtained. For example, the member nations of the EEC signed the Brussels Convention in 1968 and, subject to amendments as new nations joined, it represents the default law for all twenty-seven Member States of what is now termed the European Union on the relationships between the courts in the different countries. In addition, the Lugano Convention (1988) binds the European Union and the European Free Trade Association.

In effect from 1 March 2002, all the

directly effective 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.[14] 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.

National

Many nations are subdivided into states or

Mexico, and the United States
—such subunits will exercise jurisdiction through the court systems as defined by the executives and legislatures.

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.[15][16]

United States

Seal of the United States Supreme Court
United States federal
civil procedure doctrines
Justiciability
Jurisdiction
Subject-matter
Personal
Federalism
Main article: Federal jurisdiction (United States)

The primary distinctions between areas of jurisdiction are codified at the federal level. In the United States' common law system, jurisdiction is conceptually divided between jurisdiction over the subject matter of a case and personal jurisdiction over the parties to the case.[17]

A court whose subject matter jurisdiction is limited to certain types of controversies (for example, suits in admiralty 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.[18]

General and limited jurisdiction

A court whose subject matter is not limited to certain types of controversy is referred to as a court of general jurisdiction. In the U.S. states, each state has courts of general jurisdiction; most states also have some courts of limited jurisdiction. Federal courts (those operated by the federal government) are all courts of limited jurisdiction. Federal jurisdiction is divided into federal question jurisdiction and diversity jurisdiction. The United States district courts may hear only cases arising under federal law and treaties, cases involving ambassadors, admiralty cases, controversies between states or between a state and citizens of another state, lawsuits involving citizens of different states, and against foreign states and citizens.

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.

Original and appellate jurisdiction

It is also necessary to distinguish between

writ of certiorari
.

However, in a special class of cases, the U.S. Supreme Court has the power to exercise original jurisdiction. Under 28 U.S.C. § 1251, 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.

Example of jurisdiction

As a practical example of court jurisdiction, as of 2013

Salt Lake City, Utah, and would be heard in one of three
Federal courthouses.

Territorial meaning

The word "jurisdiction" is also used, especially in informal writing, to refer to a

state or political subdivision generally, or to its government, rather than to its legal authority.[20]

Franchise jurisdiction

In the history of English common law, a jurisdiction could be held as a form of property (or more precisely an

British East India Company and British South Africa Company. Analogous jurisdiction existed in medieval times on the European Continent. Over the course of the 19th and 20th centuries, franchise jurisdictions were largely eliminated. Several formerly important franchise courts were not officially abolished until Courts Act of 1971
.

See also

References

  1. OCLC 1035427772
    .
  2. ^ a b SS Lotus (France v Turkey), 1927 PCIJ series A No.10, para 19
  3. ^ "ICJ-CIJ.org". icj-cij.org. Archived from the original on 3 December 2005. Retrieved 8 May 2018.
  4. ^ Gideon Boas, Public International Law: Contemporary Principle and Perspectives (Edward Elgar 2012) pp. 251–254.
  5. ^ Malcolm Shaw, International Law (6th edition, Cambridge University Press 2008) pp. 652–659.
  6. ^ Gideon Boas, Public International Law: Contemporary Principle and Perspectives (Edward Elgar 2012) pp. 255–256.
  7. ^ Malcolm Shaw, International Law (6th edition, Cambridge University Press 2008) pp. 659–664.
  8. ^ Gideon Boas, Public International Law: Contemporary Principle and Perspectives (Edward Elgar 2012) pp. 257–258.
  9. ^ Malcolm Shaw, International Law (6th edition, Cambridge University Press 2008) pp. 664–666.
  10. ^ Gideon Boas, Public International Law: Contemporary Principle and Perspectives (Edward Elgar 2012) pp. 256–257.
  11. ^ Malcolm Shaw, International Law (6th edition, Cambridge University Press 2008) pp. 666–668.
  12. ^ Gideon Boas, Public International Law: Contemporary Principle and Perspectives (Edward Elgar 2012) pp. 258–259.
  13. ^ Malcolm Shaw, International Law (6th edition, Cambridge University Press 2008) pp. 668–686.
  14. ^ "Archived copy". Archived from the original on 2019-04-04. Retrieved 2012-10-29.{{cite web}}: CS1 maint: archived copy as title (link)
  15. ^ "Child Custody Jurisdiction and Enforcement Act Summary". Uniform Laws Commission. The National Conference of Commissioners on Uniform State Laws. Archived from the original on 10 October 2017. Retrieved 28 June 2017.
  16. ^ Adam Leitman Bailey, Dov Treimann (February 19, 2019). "Court of Appeals to Decide Two Cases With Major Landlord-Tenant Implications". New York Law Journal.
  17. ^ "Jurisdiction". Wex. Legal Information Institute. Archived from the original on 2016-06-16. Retrieved 2016-06-23.
  18. ^ "Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing". Federal Rules of Civil Procedure. Legal Information Institute. December 1, 2023. Retrieved 2023-10-08.
  19. ^ "Guide to the Courts" (PDF). Utah State Courts. May 2011. Archived from the original (PDF) on 2016-10-26. Retrieved 2016-08-07.
  20. ^ "Jurisdiction - Definition from the Merriam-Webster Online Dictionary". Archived from the original on 2009-04-24. See also, e.g., "Metro's $11 Billion To-Do List," Archived 2017-10-13 at the Wayback Machine in The Washington Post: "Local jurisdictions are also facing shortfalls, and much will depend on the economy and political decisions at the local, state and federal levels"; "Teacher pension pinch,"[permanent dead link] in ''The Baltimore Sun: "Large, affluent jurisdictions have scores of high-salaried teachers with correspondingly higher pension costs."

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