March 5, 2016

Nationality principle:
- This principle is highly controversial as basis to justify jurisdiction compared to objective and
subjective territorial principle which are well accepted.
Active nationality- the link is that the offender is the national of the state where the court is
situated. E.g. American court, there is a law permitting it to exercise jurisdiction over the case for
the reason that the offender is an American.
Passive nationality- based on the nationality of the victim. This however is sparingly applied by
the US to justify jurisdiction. This is usually applied in the area of terrorism just like the case of
Bin Laden. This principle was applied in this case. There was a bombing in Kenya in 1998, the
victims were American nationals. Also, the universality principle was applied, but we have to be
careful in applying this because this would mean that any court of any state can prosecute
regardless of where the crime was committed.
- Before a court can exercise appropriate jurisdiction on the basis of nationality, the
effective nationality theory must be complied with. With particular reference to diplomatic
protection, effective nationality is a pre-condition to exercise jurisdiction.
In international law, the nationality link is not determined by citizenship: this is the
import of the Nottebohm case. Liechtenstein vs. Guatemala. Nottebohm was a German who lived
in Guatemala since childhood because they had business there. When Germany became an
enemy state during the world war, the other countries who were enemies of Germany, they can
seize the assets of Germany. The possibility of forfeiture and seizure of properties was preempted by the German nationals, and this worried Nottebohm. Hence, he visited his brother in
Liechtenstein to be naturalized and he was granted the citizenship. When he went back to
Guatemala, he was arrested and detained on the basis that he is a citizen of Germany, an enemy
state. Liechtenstein said that Guatemala cannot detain Nottebohm because he is a national of
Liechtenstein and not of Germany. When this reached the ICJ, the issue was whether
Liechtenstein had the personality to exercise diplomatic protection involving Nottebohm. ICJ:
while all states can determined their own citizens through the passage of law, such determination
of citizenship will bind only that state and not the international court. The mere grant of
citizenship does not necessarily establish the nationality link because what is required is the real
and effective link with the state of nationality. Nottebohm was found out to have a brief stay at
Liechtenstein and such acquisition of citizenship was for mere convenience. Under the
circumstances, he had a more real and effective link with Guatemala than with Liechtenstein.

Protective Principle- a state can legislate crimes that it considers to be a threat to the security,
integrity and economic interests (US). This is also reflected in our RPC, those provisions for
espionage and counterfeiting.
- Certain conducts outside its territory may be subject to a states jurisdiction if it is directed
against the security of a state or against a limited class of other state interest.
Effects doctrine- a state has jurisdiction over an act committed outside, the effects of
which is in the territory the court is situated.
-Examples of conduct that come under the protective principle:
-security (espionage, counterfeiting, falsification of official documents)
-terrorism (still and emerging norm)
-customs and immigration
-perjury in immigration / before consular officials
- economic interests not settled (used by the US but not by other states

United States vs. Columba-Collela

Facts: A British citizen living in Mexico agrees to sell a car that is in Mexico but was stolen from
Texas by someone else. The crime of carnapping committed by US, but the property reached
Mexico. This is a case of fencing which was committed by the British national and not the crime
of carnapping.
Issue: Can the British citizen be prosecuted under the US law?
Protective principle analysis (inapplicable): the protective principle does not bear in this case
because the case does not involve a threat to national security or directly interfere with
government operations.
Objective territoriality principle analysis (also inapplicable): the man did not steal the car and
while the selling of the car may make it harder for the victim to get his car back, this connection
to harm the US is with only minimal effect.
Passive nationality principle analysis: Not applicable. Passive personality covers only narrow
category crimes does not usually include murder, let alone car fencing. This has a very narrow
application, usually in terrorism. E.g. An American national is murdered here in the Philippines
and the only link between him and the US is his nationality since he is not a diplomat. Most
likely, the US will not invoke passive nationality, what will usually prevail is territoriality
principle.
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