
Contents
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2.1 The Lotus Case 2.1 The Lotus Case
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2.2 Customary International Law 2.2 Customary International Law
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(a) Persisting influence of Lotus (a) Persisting influence of Lotus
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(b) The priority of territorial jurisdiction under customary international law (b) The priority of territorial jurisdiction under customary international law
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(c) Legitimate interests, foreign harm, power, and reasonableness (c) Legitimate interests, foreign harm, power, and reasonableness
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(d) Relevant international law principles (d) Relevant international law principles
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(e) Method of ascertaining customary international law (e) Method of ascertaining customary international law
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(f) Giving effect to international jurisdictional rules in the domestic legal order (f) Giving effect to international jurisdictional rules in the domestic legal order
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2 Public International Law Approaches to Jurisdiction
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Published:April 2015
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Abstract
This chapter discusses two public international law approaches to jurisdiction. The first approach was taken by the Permanent Court of International Justice in the 1927 Lotus case. The second approach, which purportedly reflects customary international law, has been taken by most States and the majority of the doctrine. Under this approach, States are not authorized to exercise their jurisdiction, unless they could rely on such permissive principles as the territoriality, personality, protective and universality principles. It remains unclear which doctrine has the upper hand. For purposes of shifting the burden of proof to the other party, States who assert their jurisdiction tend to rely on Lotus, whereas States who oppose another State’s jurisdictional assertions tend to rely on the permissive principles approach.
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