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

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Exploring the boundaries of international law

4.3.2 Nationality principle

  • States are able to assert jurisdiction over their nationals even when they are abroad.

Examples of the assertion of the nationality principle

In the Trial of the Earl of Russell (1901) AC 446, a UK national was convicted of bigamy even though the second marriage took place outside the UK. This nationality principle also applies to the crime of murder. For example, a British national can be prosecuted in the UK for a murder committed abroad.Corporations are deemed to be subject to the jurisdiction of the state in which they are incorporated and ships and aircraft are subject to the jurisdiction of the state in which they have registered.Jurisdiction cannot be exercised until the national comes within the territory of his or her state.

In the majority of cases the state will decide to take no action where the matter has already been dealt with by the state in whose territory the events occurred. Nationality jurisdiction is rarely relied on in practice. However, it is useful in resolving issues of jurisdiction in places beyond the territorial jurisdiction of any state, such as on the high seas where jurisdiction is determined by the country of registration of the vessel.

Another example is that of Antarctica where the nationality of the camp or expedition concerned determines the jurisdiction to be applied.Territoriality and nationality are discrete independent bases of jurisdiction. However, there can be an overlap. The same conduct or activity may provide a basis for exercise of jurisdiction by the territorial state and by the state of nationality. Territoriality is considered the normal, and nationality an exceptional basis for the exercise of jurisdiction.

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