Accurately summed up by Malcolm Shaw, the definition of the passive personality principle is: “a state may claim jurisdiction to try an individual for offences committed abroad which have affected or will affect nationals of the state”. In layman’s terms this allows states jurisdiction to pursue individuals outside their territory for civil and criminal matters that it deems to have some provable link to its nationals. It is a formidable extension of the nationality principle, which allows states the jurisdiction of its nationals even when they are abroad, allowing the state to look at the victim when determining jurisdiction of the basis of the premise that their national has been harmed.
Legitimacy and application
In general within International law, the passive personality principle lies on a dubious foundation to establish full jurisdiction on its own. However a number of states still attempt to apply it and in the case of US v Yunis (United States Court of Appeals, District of Columbia Circuit) the court gave the opinion that “international law still recognizes its legitimacy”. This case involved the apprehension of a Lebanese citizen by US agents in international waters attempting to prosecute him for his alleged involvement in the hijacking of a Jordanian airliner. The passive personality principle was applied under the basis that there were a few US nationals on board the flight therefore allowing the US to claim that nationals of their state had been affected extending jurisdiction.
This link in itself is not only remote but it begs the question of how far it could reasonably extend in the international legal sphere. Luckily this case was as most cases, in that applying the passive personality principle gave further weight to jurisdiction along with the fact that the court reasoned that Universal jurisdiction also applied.
I find the passive personality principle to be an interesting yet fundamentally unimportant principle of establishing jurisdiction under international law. As a principle in itself it is extremely fascinating that sovereign states would allow its existence. However, in practice, it exists wholly as a supplementary argument to add legitimacy to already established jurisdiction. On its own it is so highly controversial that it lends little extra weight to a claim of state jurisdiction in civil or criminal matters.
This is in my opinion how it is and how it should remain. If the passive personality principle could stand on its own as a solid fundamental ground for establishing jurisdiction it further begs the question: where does it end? Could the United States for example claim jurisdiction if there had not been American nationals on board, but business people of another nationality, which affected American business indirectly? Or if spouses of American citizens were onboard effecting their overall quality of life? In this case the answer would have been: yes because of the universal jurisdiction afforded by the court as it was a crime of hijacking. But what if it had been a different crime that falls outwith universal jurisdiction? This is a question which under international case law remains unanswered and although as seen above the courts hold that international law recognizes the legitimacy of the passive personality principle, it remains in effect a supplementary concept with no legs to stand in its own right.