NOTE: also affected by extradition which occurs through bilateral treaties and is not considered customary ILNOTE: contention over whether improper apprehension of a suspect by a state is a bar to jurisdiction –highly fact based, no precedent –not a bar in history (Eichmann; Nikolic)NOTE: even if a State chooses the wrong basis for exercising jurisdiction, this will not be an issue if it has another valid basis (Lotus)29Downloaded by Thomas Murdoch ([email protected])lOMoARcPSD|2832619
[Type here] CASES ON JURISDICTION Lotus Case (France v Turkey) (1927) -Territory + effects principle (on the high seas)Collision on high seas F and T vessels, T instigated criminal proceedings (8 Turkish sailors killed)ISSUE: was assertion of jurisdiction by T valid?Effects principle –always query how far can be applied. At least 1 constituent element of offence in territory and morespecifically its effects = juris (approved Turkey’sobjective juris)For manslaughter, effect is of outstanding importance (punished according to effects)Without permission, State may not exercise power in any form in territory of another state. (applies to jurisdiction) High seas, no state ex juris over foreign vesselsFreedom of the seas: ship in same position as national territory (by flagflying = territory of that state)Doesn’t mean state in own territory can’t ex juris over acts on foreign ship on high seasTreat ship as normal territory of state, therefore apply normal principle of juris if effects feltNo rule of exclusive criminal juris to flag-flying state. NB: Territoriality of criminal law NOT ABSOLUTEEFFECTS PRINCIPLE IS CONTROVERSIAL –appears to say that T couldexercise prescriptive juris in absence of any proof of rule to contrary - not widely accepted. State asserting juris generally bears onus of proving connection Foreign diplomatic premises - R v Turnball; ex parte Petroff (1971) Threw flaming bottle into Soviet Embassy in Canberra Argued that did not commit crime in Aus territory therefore crt has no juris Crime committed on premises of foreign diplomatic premises is part of Australia’s territory (not foreign) for the purpose of jurisdictionWhilst entering may be prevented by rules of diplomatic inviolabilityMust be entitled to these principles (Petroff was not)Consider if breach by receiving state (Aus) of inviolability of premisesTerritorial waters and foreign ships - R v Disun; R v Nurdin (2003) Arose from Tampa incident –Asylum seekers rescued in Aus waters b/w Indonesia/Aus by Norwegian vessel. D argued arrested on N ship = N territory, and Aus have to seek extraditionArrest in territorial waters = juris to state with territory (not ship’s territory as not on the high seas) No rule that ship entering foreign territorial waters immune from local juris (Chung Chi Cheung v R)Foreign Warship:extra-territorial immunity, implicationcrew/officers won’t be prosecuted in respect of conduct related to military activities of ship + personnel.