Exploring the boundaries of international law
Exploring the boundaries of international law

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Exploring the boundaries of international law

Part 2: Subjective territoriality

  • A state has jurisdiction over offences and matters commencing in its territory, even if other elements of the offence take place in another state.

Examples of subjective territoriality

With regard to ‘Lockerbie’, a bomb was put on board an American plane, Pan Am Flight 103, in Malta and this entitled Malta to claim jurisdiction. The UK asserted jurisdiction on an objective territorial basis; as the bomb exploded over Lockerbie in Scotland the offence had been completed in UK territory. Section 59 of the Terrorism Act 2000 gives the UK jurisdiction over the offence of incitement to commit certain terrorist offences if the incitement occurs within the UK, even if the crime is completed outside UK territory.In the past, the UK has taken a restrictive approach to subjective territoriality, even though international law permitted its use. However, in recent years, with increased emphasis on transnational crimes such as terrorism, money laundering, drug and people trafficking, there has been a move towards subjective territoriality.

Some states now assert territorial jurisdiction based on peripheral contact with the territory. For instance, the US Foreign Corrupt Practices Act 1977 requires only limited territorial connection – a US bank account, foreign transaction using dollars and financial transactions routed through the US banking system have been enough to engage US jurisdiction.The absolute nature of territorial jurisdiction is on occasions modified by international law and by agreement. The common example given is diplomatic immunity, i.e. it is accepted that the state does not exercise its jurisdiction over foreign diplomats on its territory.

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