State jurisdiction under International Law

Introduction

As we all know about the fact that the functioning of a State is based upon three tiers i.e; legislative, executive and judiciary. Legislative assembly functions for the enactment of laws, and executive works for the enforcement of the enacted laws and the role of judiciary is to interpret the laws and protection of fundamental rights of the citizens.

So, now the question arises that to what extent or to what boundary the State has the power to make legal decisions and their enforcement, so such extent is defined as the jurisdiction of state in legal terms.

Jurisdiction of a State can be explained as:

Territorial Jurisdiction:

Jurisdiction of a State over its territory is called territorial jurisdiction[1]. It means that, whoever the person or whatever the thing is within that territory is subjected to the territorial jurisdiction of that State.

Even if any foreigner committed wrong within the territory of the State then that foreigner will also come under the territorial jurisdiction of the State and can take action or prosecute against that foreigner.

Limitations on territorial jurisdiction

There are some categories which are not covered under the territorial jurisdiction of a State which are as follows:

Diplomatic Agents

Diplomatic agents are those persons who are deputed by a State as its representative in other State to perform the functions of diplomacy.

Diplomatic agents do not come under the territorial jurisdiction of a State because of the nature of functions they perform and since they are the representatives of other State so this exemption is important for their effective functioning. Hence they are enjoying immunity under international law.

According to the Vienna convention on diplomatic relations of 1961, immunity is also granted to the family members and other staff of the diplomatic agents.[2]

Embassies:

Embassies are the places from where diplomatic agents regulate their function of diplomacy. Under international law, embassies are within the territory of that state which had established them. So, embassies are also exempted from the territorial jurisdiction of a State and enjoys immunity under international law.

Foreign sovereign:

Under international law, no State has the jurisdiction to take action against the foreign sovereign. Immunity is granted to foreign sovereign because they have the special status of head of the state and it will always remain with them whether they are in their State or present in any other State. Secondly, the main aim to grant immunity to them is that they can perform and fulfil their duties and functions effectively and efficiently.

Moreover, immunity of a foreign sovereign can be removed in anti humanity cases, genocide, torture and in war crimes.

Now here is the leading case on the immunity of foreign sovereign

Pinochet’s case[3]:

In this case, General Augusto Pinochet, the head of the State of chile, was in power between 1973 to 1990. In the period during which Pionochet was in power appalling acts of brutality were committed such as murder, toture,and disappearances of individuals in chile and in Europe on a large scale. In 1998 Pinochet come to the united kingdom to seek medical treatment. The judicial authority in spain sought his extradition in order to send trial in spain on a number of charges. So he was arrested in a London hospital. The court held that although Pinochet has been acting in the performance of official functions in respect of the crimes of which he was accused and hence entitled prima facie to immunity from the jurisdiction of the courts of the united kingdom in respect of these crimes, he was not granted immunity as he was accused of commenting such crimes which in customary international law provided for universal jurisdiction over the acts in question.

Ghadaffi case[4]:

In this case, the court held that Col. Ghadaffi as head of State of Libya was immune from jurisdiction in respect of alleged complicity in acts of terrorism leading to the destruction of a civilian aircraft. Terrorism was not considered by the court as a crime of sufficient gravity to remove immunity.

Foreign sovereign properties:

Foreign sovereign properties are concerned with foreign ships. Number of times ships may entered into the territorial water of another State and if these ships cause any harm or damage to the State then under these circumstances, State has no jurisdiction to take action against that ship because foreign sovereign properties are exempted from the territorial jurisdiction of the State

In Schooner exchange V. Mc Faddon,[5] it was stated by the court that the ‘ nations have not yet asserted their jurisdiction over the public armed ships of a foreign sovereign, entering a port open for their reception.’

Foreign armed forces:

If army of one State is sent to another State on request to maintain peace and order in that State and if in such cases, any member from this army committed any wrong than that requesting State is not having any civil or criminal jurisdiction to take action against the foreign army.

For example: In 1987, Sri Lanka requested India to send forces to maintain peace and order in the State and India considered the request by sending Indian peace keeping force (IPKF). So in such cases Sri Lanka is not having any jurisdiction to take action in matters of Indian army.

Foreign warship and crew:

Foreign warships and crew are also exempted from the State jurisdiction whether it will be case of collision or any other damage. Jurisdiction will be of that State under whose flag the ship is sailing.

So these are the certain limitations or subjects which are excluded from the territorial jurisdiction of State .

Civil jurisdiction

State can exercise civil jurisdiction against everything which are present within its territory.

And general rule is that state cannot interfere in the jurisdiction of any other state and cannot extend its territorial jurisdiction beyond its State .

But in case KTMS Abdul Cader and others V. union of India[6], madras high court stated that beside the territorial jurisdiction the State can extend its territorial jurisdiction for the acts committed by the nationals outside its territory.

Criminal jurisdiction

The criminal jurisdiction is claimed by States at present time on the basis of following principles:

Territoriality principle

According to this, the State can also exercise its territorial jurisdiction when any person cause any harm to the State without actually present in its State.

So this principal is divided into two categories:

1. Subjective territoriality jurisdiction: State claims this type of jurisdiction when crime is planned or commenced in its territory but consummated outside its territory.

2. Objective territoriality jurisdiction: State claimed this type of jurisdiction when crime is consummated in its territory.

For example: if a person is within the border of the Pakistan and cause harm to India then India can claim objective territorial jurisdiction against the offender.

Active nationality principle

A State has the right to extend the application of its laws to its nationals even in respect of events occurring entirely abroad.

For example: in Antarctica, which is not a territory of any State, but scientists of different countries works in Antarctica, so under such circumstances if any Indian scientist cause murder of American scientist then India can claim active jurisdiction against the offender.

Passive Nationality Principle

The passive nationality principle can be claimed by a State of victim when the offender committed wrong having different nationality and also residing in any other territory .

In cutting case[7], the Mexico claimed jurisdiction over the American national cutting for publication of some defamatory matter in a Texas newspaper.  Mexico maintained that it had right to punish cutting because, according to its criminal law , offences committed by foreigners abroad against Mexico subjects were punishable in Mexico.  The Mexican court decided the case.  But cutting was finally released as the plaintiff withdrew his action for libel. 

Protective Principle

When state extend its jurisdiction outside the territory in order to protect its national interest from any foreign invasion. 

e.g High treason etc.  

Universality Principle

Some crimes or offensive are so destructive and directly attack on the international legal system which are considered as international crimes. So, every State has the jurisdiction to take action against such offenders irrespective of their territory and nationality.  Hence such offences are known as universal offences and offender of such crimes are known as universal offender.

 e.g. the offence of piracy is a universal offence. 

So this is all about the jurisdictions of a State, under which circumstances State can take action, can extend its jurisdiction and also about the different subjects which are exempted from the jurisdiction of a State.


[1] Dr. H.O. Agarwal, International law and human rights,215

[2] Dr. H.O.agarwal, international law and human rights

[3] (1999) 2 All E.R. 97.

[4] Ghadaffi case, French Cour de Cassation, March 13,2001 Cases. Crim No. 1414, 1 at 2.

[5] United States Supreme Court, (1812) 7 Cranch 116.

[6] AIR (1977) Madras p. 386 at p. 396.

[7] Moore’s Digest of International Law (1906) Vol.2. p. 228.

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