Chapter 7: State Jurisdiction and Immunities
153
Justification for exercising it in national fora is each country’s interest in protecting
the welfare of its nationals abroad, where the
locus delicti
State either neglects, refuses
or is unable to initiate prosecution. In this context alone, the passive personality
principle may be deemed as a lawful, but auxiliary, form of jurisdiction.
72
In the
Cutting
case, a US citizen was arrested in Mexico for a libel charge against a Mexican
national.
73
The action for which the libel was charged had been committed whilst its
author was in the US, but his arrest was effectuated much later during the author’s
subsequent trip to Mexico. The US Government vigorously opposed Mexico’s claim
of jurisdiction and the case was finally discontinued. The principle later received
the same rejection by the Permanent Court of International Justice in the
Lotus
case.
In the early part of the 20th century, when nation States ardently asserted their
sovereignty, the application of any extra-territorial principle would have met strong
opposition. This is true even more in the above mentioned cases, where passive
personality was statute and not treaty based. As noted, the advent of transnational
crimes, especially terrorist-related, necessitated the enactment of both statute and
treaty based instruments promulgating jurisdiction on the basis of the victim’s
nationality. Following the
Achille Lauro
incident and the subsequent murder of a US
citizen, the US Congress enacted the Omnibus Diplomatic Security and Anti-
Terrorism Act 1986, which grants US courts,
inter alia,
jurisdiction over persons
charged with the extra-territorial murder of US nationals, where the intention of the
perpetrator has been to intimidate, coerce or retaliate against any government or
people.
74
Similar provisions include s 3(4) of the UK Taking of Hostages Act 1982
75
and Art 689(1) of the French Code of Penal Procedure. Even though it is said that the
US does not generally recognise this form of jurisdiction,
76
in fact, in
USA v Yunis,
77
it
was unequivocally upheld by a Court of Appeals.
78
Passive personality jurisdiction
over the accused, for hijacking a Jordanian airliner in Beirut with two US citizens on
board, was assumed on the basis of the Anti-Hijacking Act 1974,
79
and the HTA 1984.
Despite its recent acceptance in domestic fora, statute based passive personality has
not received general consensus regarding its delimitation
80
and national judiciary
should apply it only as an auxiliary form of jurisdiction.
The case is different with treaty based jurisdiction, since this supersedes any
domestic provision to the contrary. This is allotted in two ways: either by directly
72
See
op cit,
Shearer, note 9, p 211.
73
IA Moore,
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