A PROJECT REPORT ON - “PROTECTIVE PRINCIPLE OF STATE

JURISDICTION”
SCHOOL OF LAW
MANIPAL UNIVERSITY JAIPUR

UNDER SUPERVISION OF: - SUBMITTED BY:-

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 CERTIFICATE

This is certified that Mr. Arpit Dhaka student of B.A. LL.B(Hons.) eighth semester school of
Law Manipal University Jaipur has completed the project work entitled “Protective Principle of
State Jurisdiction” under my supervision and guidance.
It is further certified that the candidate has made sincere efforts for the completion of the project
work.

SUPERVISOR NAME

(Dr. KANISHKA SEVAK)

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TABLE OF CONTENTS

INTRODUCTION.....................................................................................................................................4
BASIS OF JURISDICTION.....................................................................................................................5
TERRITORIAL JURISDICTION...........................................................................................................6
PROTECTIVE PRINCIPLE....................................................................................................................6
CASE LAWS.............................................................................................................................................8
WEBLIOGRAPHY.................................................................................................................................10

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 INTRODUCTION

Jurisdiction (from the latin word ius, iyris meaning “Law” and dicere meaning “to speak”) is the
practical authority to interpret and apply law, or to govern and legislate. It is granted to formally
constituted legal body such as court, or to political leader. In other words it means the geographic
area over which authority extends legal authority; the authority to hear and determine a cause of
action. In the law jurisdiction refers to particular area containing a definite authority to hear and
determine a cause of action. In the law jurisdiction refers to particular area containing a definite
legal authority. Jurisdiction can also be used to define the proper court in which to bring a
particular case. Finally jurisdiction refers to inherent authority of court to hear a case and to
declare a judgment.
The definition of jurisdiction under Black’s Law Dictionary is : “ The power and authority
constitutionally conferred upon ( or constitutionally recognized as existing in) a court or judge to
pronounce the sentence of law, or to award the remedies provided by law , upon a state of facts,
proved or admitted, referred to tribunal for decision, and authorized by law to bring the subject
of investigation or action by that tribunal, and in 95 favor of or against persons (or a Res) who
present themselves, who are brought before the court in some manner sanctioned by law as
proper and efficient.
States jurisdiction connotes “essentially the extent of each state’s right to regulate conduct on the
consequences of events”
TYPES OF JURISDICTION
Jurisdiction can be of two types:-
i. Civil jurisdiction
ii. Criminal jurisdiction
Civil jurisdiction:- In the matters of civil jurisdiction, the municipal courts apply private
international law in those cases where foreign element is involved. But the courts in normal
circumstances are reluctant to exercise jurisdiction unless there is a “substantial connection”
between foreign elements and forum either by allegiance or by domicile i.e. that the defendant or
the facts of case should have some connection with forum state. The exercise of jurisdiction
without such connection may be ultravires act which could lead to international responsibility of

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state. The matter related to enforcement of civil jurisdiction, involving criminal sanctions do not
differ substantially from criminal jurisdiction over aliens.
Criminal jurisdiction:- In criminal matters also, “the substantial connection” between the
alleged offender or the offence with the state exercising jurisdiction is necessary. The state
practice discloses four general principles on the basis of which states generally claim penal
jurisdiction. First, territorial principle determines jurisdiction by reference to place where the
offence is committed. Second, the nationality principles which determines jurisdiction by
reference to nationality either of the people committing the offence even with respect to events
occurring entirely abroad or with reference to the nationality of the person injured by the offence.
Third, the protective principle refers to jurisdiction according to national interest of the state.
Fourth, the universality principle provides jurisdiction by reference to the nature of crime. E.g.
privacy.

BASIS OF JURISDICTION

There are some 198 states on the planet. International law determines which state has jurisdiction
in which respects. In this regard four fundamental objectives should be borne in mind. The first
is to establish limits of jurisdiction that protects the independence and sovereign equality of
states by balancing each state’s interest in exercising jurisdiction to advance its own policies with
each states interest in avoiding interference with its policies resulting from the exercise of
jurisdiction by foreign states. The second is to recognize the interdependence of states by
ensuring that effective jurisdiction exists to achieve certain objectives of states. The third is to
harmonize the rights of two or more states when they have concurrent jurisdiction, which is
when each of them has jurisdiction over the same matter. The fourth is to protect individuals
from unreasonable exercise of jurisdiction either by single states or by two or more states
seeking to impose conflicting or compounding obligation on the same matter.
It is unclear whether a state may exercise jurisdiction only where there is recognized basis for its
exercise or, as asserted in case of S.S. Lotus, in the absence of prohibition on its exercise.
Whatever the identifying conceptual approach a state may be able to identify a sufficient nexus
between itself and object of its assertion of jurisdiction. In this regard, various bases of
legislative jurisdiction have been identified, particularly in the context of criminal law. These are

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alternatives a state may have more than one basis for exercise of jurisdiction in matter and more
than one state may have basis for exercise of jurisdiction over the same matter.

TERRITORIAL JURISDICTION

This is favored basis for the exercise of state jurisdiction. Events occurring within a state
territorial boundaries and person within that territory. Albeit their presence is temporary are as a
rule subject to the application of that state’s law.
An offence may not however be committed entirely within the territory of one state. A crime
may be initiated in one state and consummated in another. If a person stands near to the border
between two countries and fires gun and thereby injures a person on the other side, which state
has jurisdiction? The answer is both. The state from which the gun fired has jurisdiction under
the subjective territorial principle, while the state where the injury was sustained has jurisdiction
under the objective territorial principle.
The objective territorial principle gives jurisdiction to the state in which the crime has been
completed and has effect the forum of injury.
The subjective territorial principle allows the exercise of jurisdiction by the state in which crime
is committed.
Both the states may claim jurisdiction and both may do so legitimately. The one which will
exercise jurisdiction will most probably be one which has custody of alleged offender. There is
no rule of international law which gives a state, where crime is completed, exclusive jurisdiction.
The state in which the crime was initiated is, in other words, not restricted for the exercise of
jurisdiction.

PROTECTIVE PRINCIPLE

Protective principle is a rule of international law that allows a sovereign state to assert
jurisdiction over a person whose conduct outside its boundaries threatens the states security or
interferes with the operation of its government functions.
The following is an example of a case law on protective principle:

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Under international law, the "protective principle" gives a country the jurisdiction to prescribe a
rule of law attaching legal consequences to conduct outside its territory that threatens its security
as a state or the operation of its governmental functions, provided the conduct is generally
recognized as a crime under the law of states that have reasonably developed legal systems.

The protective principle protects the state from acts perpetrated abroad which jeopardize its
sovereignty or its right to political independence. For the operation of protective 109 principle,
actual harm need not have resulted from these acts. Protective jurisdiction was already
recognized in the city states of northern Italy in thirteenth and fourteenth centuries. From the
fifteenth and sixteenth centuries on even before extradition become a common practice,
European states committed themselves to surrendering the preparation of political offences.
Nowadays, given the wide spread adoption of legislation based on the protective principle, the
legality of protective jurisdiction is not in doubt.
International law recognizes such a right which is embodied in criminal codes of many countries.
Oppenheim holds that the penal jurisdiction of states includes “crime injuring its subjects or
serious crimes against its own safety”. Penal jurisdiction requires a “linking point’, i.e., a legal
connection linking the state and the offender. The act that concerns a state’s “vital interest” can
be tried by state under protective principle.
The rationale behind its application is the concern of the state against whom they are directed
and the grave nature of the offences, which may go unpunished simply because they don’t
violate the law of land where they were committed. Such acts include high treason or
counterfeiting of currency etc. in such cases, extradition may be refused because of the political
nature of such offences. But, on the other hand, it may, vest with arbitrary power to decide
abroad its jurisdiction, and it is another instance of extra territorial application of state’s law.
The Anglo-American countries, which oppose the passive personality principle, quite often
resort to protective principle to exercise jurisdiction over crimes committed by aliens abroad. In
England, the House of Lords upheld that the principle in Joyace vs DPP by holding that an alien
owing allegiance to the crown can be tried by British courts for the crime of treason committed
abroad. The court stated that no principle of international law demands, ‘that a state should
ignore the crime of the treason committed against it outside its territory. On the contrary, a

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proper regard for its own security requires that all those who commit that crime, whether they
commit it within or without the realm should be amenable to its laws.”

CASE LAWS

In K.T.M.S. Abdul Cader and other vs. UOI, the petitioners (one of them was a foreign
citizen) were alleged to have been dealing with smuggled goods. The state of Madras
apprehended threat to the safety and security of the country unless they were detained forthwith.
Detention orders first passed against them under Maintenance of Internal Security (Amendment)
Ordinance, 1974 and COFEPOSA Act 1974. The warrant of arrest could not be served since they
were residing abroad and subsequently the state government issued two proclamations under sec
82 (10 and 7 (1) c of CrPC and passed orders for their detentions. These proclamations were
challenged by the petitioners on the ground that the Act does not have extraterritorial application;
therefore, the government had no power to issue detention orders against persons who were not
in India at the time of issuance of an orders. The Madras High court, while rejecting their
contention, observed that:-
“Though a states jurisdiction is mainly territorial, its jurisdiction can extend in respect of things
or acts done by its nationals, even outside its territories. It has also jurisdiction which may
properly be called protective jurisdiction to deal with a foreign nationals whose acts have
jeopardized or are to jeopardize its safety or public order…if such protective jurisdiction is not
given to a sovereign states, its stability and existences itself can be shaken by acts or things done
by foreigners outside its territory..It may be that any action taken by state government against a
foreigner sometimes is ineffective so long as the foreigner is outside its territory. But the action
taken cannot be invalid as the jurisdiction of the state to take action against a foreign mainly
depends upon its competency and not upon its effective execution.”
In G.B.Singh vs. Govt. of India also the Supreme Court recognized the protective principle by
stating that first duty of a state is to survive.
Traditionally considered protective principle as deriving from a state’s inherent rights of defense.
From a conceptual perspective, the self defense jurisdiction. From a conceptual perspective the
self defense justification has been criticized on the ground that protective jurisdiction is in fact
exercised after sometime after the criminal act has taken place. Self defense is ordinarily only

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allowed as inherent right when armed attack actually occurs. Defense against fait accompli may
appear paradoxical. More importantly, because the justification of protective principle is rooted
in the concept of state sovereignty and political independence which every state defined for it,
there is unmistakably a danger that states might abuse the protective principle. The trail of a
defendant accused of a crime against the security of state would almost certainly be conducted in
climate of animosity and revenge which is bound to be detrimental to the fairness of the trail.
This is anathema to the protection of individual human rights, such as right to a fair trial. The
exercise of protective jurisdiction may also poison international relations and cause other states
to retaliate, not only because the other states might have concurrent jurisdiction over crime, but
also because crimes against security of a state may unlike common crimes, be supported or
condoned by a foreign government. Claiming protective jurisdiction over authors of the acts may
imply passing of judgment on the acts of foreign state and could possibly undermine the political
independence of the later state.
It appears desirable to adopt an international convention on protective jurisdiction. This
convention would objectively determine the crimes that could rise to protective jurisdiction and
put in place mechanism of jurisdictional restraint. Nonetheless, as in other fields of jurisdiction,
such a convention might prove elusive in the face of tenacious state interests. As it actually
presupposes a world in which states consent to the future unilateral exercise of jurisdiction by
other states over crimes in which they may be involved, such convention may appear utopian, or
even if concluded, unlikely to implemented in practice. To be true, the flows, inherent in
unilateral jurisdiction could be remedied by providing for independent international tribunal
competent to prosecute perpetrators of crime against the security of the state, along the lines of
international court. The prospect for establishment of such tribunal are, however, dim, as state
will be reluctant to confer adjudicatory power on international tribunal over offence against
national security.
In spite of bias potentially displayed by courts when exercising protective principle one could,
however take comfort in the fact that protective jurisdiction is in practice hardly exercised. When
it is exercised it proves hardly controversial.

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WEBLIOGRAPHY

1. http://shodhganga.inflibnet.ac.in/bitstream/10603/188821/7/5%20chapter3.pdf
2. https://pdfs.semanticscholar.org/cd79/0925ddde32c8a101d68de41d8713ebc41352.pdf
3. https://swfsc.noaa.gov/publications/TM/SWFSC/NOAA-TM-NMFS-SWFSC-
154_P1045.PDF

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