For an article on the use of jurisdiction to mean a state or country, see Jurisdiction.
Jurisdiction is the practical authority granted to a formally constituted legal body or to
a political leader to deal with and make pronouncements on legal matters and, by implication, to administer
justice within a defined area of responsibility. The term is also used to denote the geographical
area or subject-matter to which such authority applies. Areas of jurisdiction apply to local,
state, and federal levels. Jurisdiction draws its substance from public
international law, conflict of laws, constitutional law and the powers of the executive and legislative
branches of government to allocate resources to best serve the needs of its native society.
International dimension International laws and treaties provide agreements
which nations agree to be bound to. Political issue
Supranational organizations provide mechanisms whereby disputes between states 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 state whether to co-operate or participate.
If a state does agree to participate in activities of the supranational bodies and accept decisions,
the state 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 the 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 of the relevant representative government(s)
which, in a democratic context, will have electorates to satisfy.
International and municipal jurisdiction 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, 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,
the international tribunal is to prevail over national courts, the problems are more difficult
to resolve politically. The idea of universal jurisdiction is fundamental
to the operation of global organizations such as the United Nations and the International
Court of Justice, which jointly assert the benefit of maintaining legal entities with
jurisdiction over a wide range of matters of significance to states 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 states
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 states 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 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 states affected, save that the WTO is permitted to allow retaliatory action by
successful states against those states found to be in breach of international trade law.
At a regional level, groups of states 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 states 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 state if that member
State asserts its sovereignty and withdraws from the union.
International and municipal law The standard treaties and conventions leave
the issue of implementation to each state, i.e. there is no general rule in international
law that treaties have direct effect in municipal law, but some states, by virtue of their membership
of supranational bodies, allow the direct incorporation of rights or enact legislation
to honor their international commitments. Hence, citizens in those states 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 Netherlands, all treaties and the orders of international organizations
are effective without any action being required to convert international into municipal law.
This has an interesting consequence because treaties that limit or extend the powers of
the Dutch government are automatically considered a part of their constitutional law, for example,
the European Convention for the Protection of Human Rights and Fundamental Freedoms and
the International Covenant on Civil and Political Rights. In states 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 United Kingdom,
for example, a treaty is not effective until it has been incorporated at which time it
becomes enforceable in the courts by any private citizen, where appropriate, even against the
UK Government. Otherwise the courts have a discretion to apply international law where
it does not conflict with statute or the common law. The constitutional principle of 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, the "Supreme Law of the Land" and, 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).
The jurisdiction between and within states 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.
International To deal with the issue of forum shopping,
states 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 litigants with
the encouragement of lawyers on a contingent fee continue to shop for forums.
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 state courts and to enforce the judgments obtained. For
example, the member states of the EEC signed the Brussels Convention in 1968 and, subject
to amendments as new states 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 binds the European Union
and the European Free Trade Association. In effect from 1 March 2002, all the member
states of the EU except Denmark accepted Council Regulation 44/2001, which makes major changes
to the Brussels Convention and is directly effective in the member states. Council Regulation
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 CACA enforcement of foreign judgments is now more straightforward. At
a state 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 and
provinces. Federation and these subunits will exercise jurisdiction through the court systems
as defined by the executives and legislatures. When the jurisdictions of governmental entities
overlap, one another—for example, between a state and the federation to which it belongs—their
jurisdiction is shared or concurrent jurisdiction. Otherwise, one government entity will have
exclusive jurisdiction over the shared area. When jurisdiction is concurrent, one governmental
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 restricted
only by a number of limited restrictions, these government branches have plenary power
such as a national policing power. Otherwise, an enabling act grants only limited or enumerated
powers. The problem of forum shopping also applies
as between federal and state courts. United States
The primary distinctions between areas of jurisdiction are codified at a national level.
As a common law system, jurisdiction is conceptually divided between jurisdiction over the subject
matter of a case and jurisdiction over the person of the litigants. Sometimes a court
may exercise jurisdiction over property located within the perimeter of its powers without
regard to personal jurisdiction over the litigants; this is called jurisdiction in rem.
A court whose subject-matter jurisdiction is limited to certain types of controversies
is sometimes referred to as a court of special jurisdiction or court of 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 are 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. It is also necessary to distinguish between
original jurisdiction and appellate jurisdiction. A court of original jurisdiction has the power
to hear cases as they are first initiated by a plaintiff, while a court of appellate
jurisdiction may only hear an action after the court of original jurisdiction has heard
the matter. For example, in United States federal courts, the United States district
courts have original jurisdiction over a number of different matters, and the United States
court of appeals have appellate jurisdiction over matters appealed from the district courts.
The U.S. Supreme Court, in turn, has appellate jurisdiction over the Courts of Appeals, as
well as the state supreme courts, by means of 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 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. 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. Franchise jurisdiction
In the history of English common law, a jurisdiction could be held as a form of property called
a franchise. Traditional franchise jurisdictions of various powers were held by municipal corporations,
religious houses, guilds, early universities, Welsh Marches, and Counties Palatine. Types
of franchise courts included Courts Baron, Courts Leet, merchant courts, and the Stannary
Courts which dealt with disputes involving the tin miners of Cornwall. The original royal
charters of the American colonies included broad grants of franchise jurisdiction along
with other governmental powers to corporations or individuals, as did the charters for many
other colonial companies such as the 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
Guantánamo Bay Naval Base Immunity from prosecution
Labor unions in the United States – a different use of the word jurisdiction
Law enforcement agency – a different use of the word jurisdiction
Lawsuits against God Rasul v. Bush
Private jurisdiction State immunity
Universal jurisdiction References
External links Cornell.edu
Supreme Court Decision on the Guantánamo Bay jurisdiction
Jurisdiction As Property – franchise jurisdiction