Jurisdiction

For an article on the use of jurisdiction to mean a state or country, see Jurisdiction (area).

Jurisdiction (from the Latin ius, iuris meaning "law" and dicere meaning "to speak") is the practical authority granted to a legal body to administer justice within a defined area of responsibility, e.x. Michigan tax law. Areas of jurisdiction apply to local, state, and federal levels, e.x. the court has jurisdiction to apply federal law.

Colloquially it is used to refer to the geographical area to which such authority applies, e.x. the court has jurisdiction over all of Colorado. The legal term refers only to the granted authority, not to a geographical area.

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 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 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 their 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 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 (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 universal jurisdiction is fundamental to the operation of global organizations such as the United Nations and the International Court of Justice (ICJ), which jointly assert the benefit of maintaining legal entities with jurisdiction over a wide range of matters of significance to nations (the ICJ should not be confused with the ICC and this version of "universal jurisdiction" is not the same as that enacted in the War Crimes Law (Belgium) 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[1] 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 intergovernmental organizations such as the World Trade Organization (WTO) 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 nations affected, save that the WTO is permitted to allow retaliatory action by successful nations against those nations found to be in breach of international trade law. At a regional level, groups of nations 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 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.

International and municipal 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 direct effect in municipal law, but some nations, 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 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:

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 nations adopting this theory, the local courts automatically accept jurisdiction to adjudicate on lawsuits relying on international law principles.
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 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) 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 (Missouri v. Holland, 252 U.S. 416 (1920)).

International jurisdiction

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 forum shopping, nations 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 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 member states of the EU except Denmark accepted Council Regulation (EC) 44/2001, which makes major changes to the Brussels Convention and is 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.[2] In some legal areas, at least, the CACA 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 and provinces (i.e. a subnational "state"). In a federation — as can be found in Australia, States of Brazil, India, 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 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. (See personal jurisdiction.) Sometimes a court may use 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 (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.

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 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 (or a lower appellate court) 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 (as mentioned above), 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 (of a discretionary nature) 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 (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.

Colloquially

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.[3]

Franchise jurisdiction

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

References

  1. ↑ ICJ-CIJ.org
  2. ↑ http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:299:0062:0070:EN:PDF
  3. ↑ "Jurisdiction - Definition from the Merriam-Webster Online Dictionary". See also, e.g., "Metro's $11 Billion To-Do List," 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," in The Baltimore Sun: "Large, affluent jurisdictions have scores of high-salaried teachers with correspondingly higher pension costs."

External links

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