The If, How, and When of Criminal Jurisdiction – What is Criminal Jurisdiction Anyway?

Abstract

This article analyses the legal phenomenon of criminal jurisdiction. This is done by examining the concept of criminal jurisdiction on different levels and by posing different questions. Criminal jurisdiction first and foremost entails a claim on the right to punish by the state, which can be expressed as a claim on penal authority. When a state claims penal authority, it claims a right to penalize and punish certain behaviour not only in relation to individuals, but also in relation to other states. Since a state’s claim on criminal jurisdiction brings the sovereign interests of other states to the fore, this claim must be in accordance with standards of international law. As a general rule, the state establishes its penal authority through the scope of application of its national criminal law. However, it is also conceivable that a state lays claim to penal authority through the use of other than national criminal law, e.g. foreign or supranational criminal law. The fact that a certain act falls within the penal authority of a state does not, however, categorically imply that the state must or should enforce its penal authority. Since the penal authority of states frequently overlap, the question of whether or not a state actually should attempt to enforce its penal authority in practice always requires further deliberation and balancing of interests.