WHOSE  TERRITORY  IS  IT  ANYWAY?

MANILA, January 22 2006 (STAR) HINDSIGHT By Josefina T. Lichauco - The rape allegedly committed by US service-men in Subic has received a great deal of attention in the country. The issue has indeed sparked debates especially on the custody issue.

Today we will examine the extent of territorial jurisdiction, as well as the exercise by a state of extra-territorial jurisdiction in another state.

The principle that the courts of the place where the crime is committed exercises jurisdiction has received universal recognition. It is but a single application of the essential territoriality of sovereignty which a state possesses, and is the sum of its legal competencies. Rationally, in the case of crimes, the principle has a number of practical advantages including the convenience of the forum state and, which is of great importance, the presumed involvement of the interests of the state where the crime is committed.

With the Internet, where borders have become blurred, the issue of territoriality has become even more complicated. It can be said that e-commerce and the proliferation of transnational corporations have made the issue more complex, whether itís about criminal or civil jurisdiction.

There is a great deal of American and English decisions with definite statements suggesting that the territoriality principle is exclusive. But it is well known that the UK legislature has conferred jurisdiction over nationals, among others, with respect to treason, murder, bigamy, rape, and breaches of Englandís Official Secret Acts wherever committed. It is generally known that international crimes such as terrorism are justiciable in any state.

Insofar as the US, the UK and other states including the Philippines are concerned, they have adopted the territorial principle where it has been given extensive application. In the first place, there is the "subjective" application, which creates jurisdiction over crimes within the state but completed or consummated abroad. Generally accepted and often applied is the "objective" territorial principle, according to which jurisdiction is founded when any essential constituent element of a crime is consummated on state territory.

Here we have the classic example of the firing of a gun across a frontier resulting in a homicide in the territory of a forum state. Which state exercises territorial jurisdiction? Though it is true that in all systems of law the territorial character of criminal law is fundamental, it is equally true that all, or nearly all these systems, extend their jurisdiction to offenses committed outside the territory of the state that adopts them, and they do so in ways that vary from state to state.

The territoriality principle of criminal law is therefore not an absolute principle of international law and by no means exclusively coincides with territorial sovereignty.

The United Nations and the International Court of Justice (UN organ for settlement of international disputes) are realistically accepted as crippled to a great extent in the exercise of enforcement powers over sovereign states in the international community of nations. The UN is known to be inutile in the imposition of sanctions on a state that has violated a resolution, for instance, of the UN Security Council, especially with regard to an extremely powerful state like the US, which is a big contributor to the coffers of the UN.

The same thing holds true today as it did years ago when I wrote my paper "An Analysis of the Enforcement Powers of the United Nations" as a student towards a Master of Laws degree at Yale. And that was decades ago!

A prime example of such violation is the American invasion of Iraq. Lauterpacht, who is a foremost authority on international law, takes the position that far from laying down a general prohibition to the effect that states may not extend the application of their laws and the jurisdiction of their courts to persons, property or acts outside their territories, it leaves them in this respect a wide measure of discretion which is only limited to certain cases by prohibitive rules. As regards other cases, every state remains free to adopt the principle that it regards as best and most suitable to the stateís interest.

In many cases, especially with the prevalence of the Internet and all the business ramifications attendant thereto, the issue of what state jurisdiction takes effect becomes complex.

There are so many transnational corporate conflicts where there is a concurrence of jurisdiction: a) the locus delicti (state where the crime was committed), and b) the state of the nationality of the accused under the nationality principle.

One governing principle is that a state cannot take measures on the territory of another state by way of enforcement of national laws and judicial processes without the consent of the latter. Persons may not be arrested, a summons may not be served, police or tax investigations may not be mounted, orders for production of documents may not be executed on the territory of another state except under the terms of a treaty or other form of consent given.

Although this is not the issue in the Subic rape case because the defendants are accused of having committed the crime of rape on Philippine soil, which is the state that has acquired jurisdiction under the territoriality principle, and is the state enforcing summons and custody of the accused in the Philippines, the above highlights the fact that the law of the place where the crime was committed is the applicable law.

The US is well known for having taken the view, powerful as this state is, that whenever activity abroad has consequences or effects within the US which are contrary to local US legislation, then the American courts may make orders requiring the disposition of patent rights (which are quite common) and other properties of foreign corporations, the reorganization of industry in another country, the production of documents, etc.

The American doctrine appears to be restricted to agreements abroad intended to have effects within the US and actually having such effects. Such orders may be enforced by action within the US against the individuals or properties present within the territorial jurisdiction and beyond.

American policies have provoked strong reactions from a large number of foreign governments. Protest was provoked in particular by the Bonner Amendment to the Shipping Act, under which the US Federal Maritime Commission was given regulatory powers concerning the terms upon which non-American ship owners carry goods to and from the US. The UK and other states enacted legislation to provide defensive measures against American policy.

Similar episodes have arisen as a result of the application of the US Export Administration Act and, in particular, in the face of US measures directed against non-American corporations involved in contracts relating to the construction of the West Siberian pipeline. Both the European Community and the UK government protested and asserted the illegality of the actions of the US authorities which actions were intended to prevent the re-export of machinery of American origin and the supply of products derived from American data. It must be noted that anti-cartel legislation in Europe is based on principles similar to those adopted in the US.

The view of the UK appears to be that a state "acts in excess of its own jurisdiction when its measures purport to regulate acts done outside the territorial jurisdiction by persons who are not its own nationals and which have no substantial effect within its territorial jurisdiction." In the case of corporations with complex structures and foreign-based subsidiaries, a principle of substantial or effective connection could be a basis for jurisdiction.

The principle of territorial jurisdiction has to be placed in a proper relation to the other principles. Thus, it is not completely exclusive in its application to aliens within national territory. This qualification has a couple of ramifications: a) the jurisdiction of the alienís state of origin is not excluded; b) the territorial jurisdiction may be excluded if there is an absence of substantial links between the alien or foreign corporation and the state asserting jurisdiction.

Jurisdiction is hence not based on the principle of exclusiveness. The same acts may be within the lawful ambit of one or more jurisdictions. However, it is conceded that an area of exclusiveness or exception may be established by treaty.

And this is what was done by the governments of the Philippines and the US in connection with the VFA (Visiting Forces Agreement). Except that the Philippine Senate ratified the agreement, which is a constitutional requirement, while the US Senate has not done so Ė a lapse that to my mind should have substantive repercussions on the effectivity of the VFA.

How could one party be tied to an agreement while the other neglects to be tied through a negligent or intended lapse? Whose and what degree of negligence transpired here? We should consider ourselves unbound and the power to institute/issue all judicial processes should be retained by Philippine territorial jurisdiction. 


Chief News Editor: Sol Jose Vanzi

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