far as it purports to subject jurisciction connotes “ consequences of events.217 in India, Reference may be made here to a 1,’ wherein the Supreme Court to a person who was not a ry me Court observed : “A sections y tration (a) to Section 4, |.P.C. delimits the it of this section. It runs as follows : murder in Uganda. He can be tried in British India in which he may be found. In the ‘subject at the time of the commission of the murder iid not apply to the case. The circumstances, that , person becomes domiciled in another country, or public ship flying the flag of France was in the British territorial bin boy of the ship, committed the offence of murder by shooting # Both M and D were British nationals serving at that time as ‘of the cruiser. Immediately after the incident the offices of a ‘obtained and the injured was taken to the nearest British ‘captain, if the doctors found that the life was not extinct. d by the French Government failed. M, who had been proceeding was released but arrested immediately itted within British territorial waters. During the trial that : British courts had no jurisdiction to try him for the murder iser flying French flag.* In this case the defence cannot FANNER 4aza3 ee ui discarded. Secondly, the offence was seeking good offices of British police and /. Thus M could be tried by British Hee public ship. He murdered Hong Kong. He then tried to ant218 Chi Cheung ship. Gr enuary 11, 193 whan He ea ‘Chung Chi Cheung 8h Ci Serge ot tes ‘Even in the wounded stato, the ‘be taken into the territorial welt oO 1 the cabin boy , called the police and got ote me British onsen, was a cabin jing for the extradition was a Britsh citizen. Conseq e-arrested and was tried in the Court of Hong The accused filed an appeal in the Privy CSASI ihe appellant (accused) contended that th ‘committed was the public property of the Chinese G principle of extra-territoriality the said ship should State of China. The Court of Hong Kong could have the Government of China waived its immunity. case the Government of China had not contended by the appellant that the servants 0 tried in the court of another State and that th ‘entitled to waive this immunity. The Privy Ic ‘Court of Hong Kong had jurisdiction to try principle of extra-territorality was not co to say that the public ship of a country is th correct view is that according to I exemption to the ships and crew of may be waived by the State conc submited othe jurisdiction ofthe its immunity. Instead of demandi winesses lo gve evidence agai fi Territorial Sovereignty N.B.—For this please see kinds of States and Non-State Ef219 within its territory but completed or consummated outside its territory. The commenced Wr ime commenced or was initiated may enact under its criminal law thal it Sate where Ine jon over such preparatory acts. Ordinarily, States do not exercise this will . There are, however, cerlain situations wherein States where the crime ‘or are under duty to punish the accused, This is provided for irae vention for the Suppression of Counterfeiting of Currency tion for the Supervision of the Illicit Drug Traffic (1996). State have accepted this obligation so as to prevent commission Principle.—According to this principle, a State gets jurisdiction ‘it any of the constituent elements of the crime is consummated in its State concemed to assume jurisdiction also necessary that the act ced some harmful effect within or on the territory of State. Hyde has in the following words : “The setting in motion outside of a State of as a direct consequence an injurious effect therein justifies the gn in prosecuting the actor when he enters its domain.” In the S.S. Lotus ‘observed : “It appears to be now universally admitted that when a in the territorial jurisdiction of one State as the direct result of the act ‘corporeally present in another State, international Law, by reason ce of the offender at the place where his act took effect, does of the offender by the former State, should he come within its " 18 The objective territorial principle is generally accepted and often ctive territorial theory does not meet at the view of States which for their criminal courts, and even if this claim is limited to a nationals, it rests on a false view of the nature of the right of ch international law recognizes ; States have a right to diplomatic d On for injuries done to their nationals abroad, but not ‘criminal law round them at a time when they have left is not always a co-incident with its territory. As jurisdiction over its territory. The sovereignty of ory. But there are certain exceptions to this general rule. wherein a State may exercise jurisdiction outside its, ation of laws has been discussed and igh Court, namely, K.T.M.S. Abdul Cader as follows or dealing with smuggled goods. s they were detained May prove a hazard to passed first under ce, 1974 and g ActivitiesINTERNATIONA iy Jide its territorial limits. It may be noted here that in aeronrie Full Bench of the Madras High teseate O78 Ol hy 220 but were outs! one foreign © that it is well established that the power of the topic entrusted to it is plenary, that @ law cannot be invalidated merely on the a law cannot be ‘on the ground that outside its territories."® The Full Bench operation’ are used normally in two different acts and events which take place inside secondly, laws with reference to the national of its former sense the laws are strictly sp q punishment for certain acts either banknotes and the like, or slander, and the like. These they have also referred the following o competence of a State under termining and explai f by the fac hat the word ay nevertheless distinct ar that the and ther itis true ‘Statehood221 jon—wat 18 etc., under which the States are allowed to ee canal wiaem ), the safety or public order which has been by acts committed by persons outside its territory ; and based on passive personality principle which enables a State to n over a foreigner in respect of an incident taking place ‘abroad resulting in an injury to one of its nationals. noted that a State cannot exercise its power in any form in the territory of tray De Teopt by virtue of @ permissive rule derived from international custom or Senet Seti case the Permanent Court of Intemational Justice fom a sved-—"the frst and foremost restriction imposed by international law upon a tas oPstnat failing the existence of a permissive rule to the contrary it may not exercise ba in any form in the territory of another State. In this sense jurisdiction is certainly jemtorial ; it cannot be exercised by state oul its territory except by virtue of a may very well exercise civil or criminal jurisdiction over its nationals et to their conduct outside its territory.24 After reviewing the above High Court?’ observed though a State's jurisdiction is mainly on can extend in respect of things or acts, done by its nationals It has also jurisdiction which may properly be called protective th a foreign national whose acts have jeopardised or are about to ¥ oF public order. The protective principle on the basis of which a State ‘Over foreigners for its own preservation is recognized in the Protective jurisdiction is not given to a Sovereign State, its ean be shaken by acts or things done by foreigners outside 2 powerless to do anything against them Therefore, it i¢ right of any State to protect itself from such prejudicial ‘State by dealing with them in any manner they like. It State against a foreigner some times is ineffective so territory. But merely on that ground, the action taken ction of the State to take action against a and not upon its effective execution. The to execute or effectuate that order. by a State so long as he is outside king the protective principles.he a 222 ly Hit is apprehended that if not be dota country and NotI his ‘eos ar ea atv prejudicial etect on this County, Tare ute Valea! to the security of a State in this ¢o ce tke the appellant indulge in prejudiel country even thoug! person acting preju ther Stal es 10 analogy 2fPine county actNg of another country and ya EE After quoting the at fray observed : “Though ae pont Kj te ee “4 rectly deal wit eure the security and integrity of another cl protective jurisdiction of one State to deal with foreign against its security and integrity, Some exceptions of the I Q) Dpomatic agents—Diplomatic agents enjoy o ‘They are immune from the jurisdiction of the civil State. In this connection the old view was that immunities and privileges because they were d receiving State. In the present time this theo modern view, diplomatic agents enjoy certain special functions they perform. This was afi Supreme Court of Australia. The facts of t “Diplomatic Agents”. Oppenheim also. (2) Foreign embassies.—Foreign jenisdiction of the State in which they are re to be treated a part of their home States. ert of their home States, embassies functions performed by the diplomatic (3) Foreign sovereigns** —F jurisdiction of other States and po upon the principle that one | the case of Christina?” Lord WeURES S8eee05% F779 2 Fa75: 223 Seaport! sarin being like the atibute of every sovercign, and and of nrerting onus ritorial powers, would not seem to being incapable, OF evecoigns nor their sovereign rights, as its subjects. One contemplate to another, and being a bound by i far nt degrade the dignity of his nation, by sovereign acter not 10 ig # ‘sovereign rights within he jurisdiction of another, can be a itty ‘only under an express license, or in the that ies belonging to his independent sovereign station, though not ‘stipulated, are reserved by implication and will be extended to Di assoury. Krupp the plait contended that the Japanese Government had 5 ‘ite aia that tre comery ot re posce by 8 ~~ that it had no jurisdiction over the property of the foreign > spon, ay ah what we call the public property of the State of which he ton Belge,® it was held that the British Courts have no jurisdiction ty of the foreign sovereigns. In this case, the Parliament Belge ‘and was also used for commercial purposes. It collided with 2 f the ship had filed a case in the Admiralty Division demanding Court has no jurisdiction over the Parliament Belge. Neither ;nor any friendly sovereign can be impleaded in any of courts at the ship being used subordinately and partially for trading ne sovereign immunity. ore,s"* the Sultan of Johore, during his stay in England, n the said promise was not fulfilled, the plaintiff fled 2 The Sultan of Johore contended that he was a ite who had not submitted to the jurisdiction of the have jurisdiction over him. The court accepted his ord Esher, M.R. of the Court of Appeal held 2 “it itis and does not submit to the jurisdiction, the lows from this that there can be no inquiry by the tis Lordship referred the following observation is that, as a224 id down in Mighell v. Sultan of Johor, was finally a The principle i pwolopment Co. Lid. v, Government of retro Te ee uepnen O ‘Ltd. v. Government of Kelantan are as follows in 1912, the Government of Kelantan granted cer r igging mines, otc, The instrument ui Den on provided itration In cage of @ nted als for Srrrusted to " arbitrator who gave his award in respondent (i.@, the ‘Government of Kelantan) had reatiated, but the case was dismissed by the Court, House of Lords. Thereafter In 1922, the appellant-C Bench of England requesting the Court for enforcing thereupon issued a gamishee order, bul later on this 0 because the Government of Kelantan was Indep Appeal approved this decision. Therefore, the the said order in the House of Lord: ‘The British Foreign Office informed the Court th British Government had recognised the Sultan of ‘State and the British Crown neither exercises nor c Kelantan ‘The House of Lords decided in favour of the appeal of the appellant company. Thus the Kelantan was a sovereign State and could not t itis the duty of the Court to accept the stat Positively made, is conclusive upon the ‘Nizam of Hyderabad;* also deserves a But it the person conc sovereign, he will not be coltted so grea country where the suit has been filed re ‘egarded as foreign sovereign and is fo rant immunity. This is clear from The deposed King of Ag 2 Engish ady. Later ov he changed S28 him for breach of promise to225 int. JURISDICTION worth: ring that many countries have nationalised industries connection’ ee commercial functions is a matter of great importance. wa vats. SW Fedmann,* inthis connection, tree views are prevalent— ae probed) which is owned by St ‘entitied to immunity. This view is second view, this immunity is not absolute and it has certain . see Toirot upon the type of the act. But it is difficult to determine as towhether a particular act is a sovereign act or not. (¢) According to the third view, immunity depends upon the nature of the function. ' In accordance with this rule, those ships which are owned by the State and perform commercial functions, are treated equivalent to private ships during peace times. ‘noted here that *. he absolute theory of sovereign immunity is no ares d sacrosant.** In Thai-Europe Tapioca Service Ltd. v. Govt. of ‘of Appeal held that a foreign sovereign has “no immunity when it transaction with a trader here, and a dispute arises which is ri of our courts.” *" Similarly a foreign sovereign has debts incurred in England for services rendered to foreign Almost the same view was taken by the Judicial Committee wners of the Ship Philippine Admiral v. Wallem Shipping (Hong The State of Kerala v. K. Cheru Babu,** the Division Bench of “The doctrine of absolute immunity never formed part of Bynkershoek nor Vattel accepted the doctrine in its in modern jurisprudence. The doctrine is now (a) the immunity of a foreign State from the d to acts jure imperi (non-commercial activities of stinguished from acts jure gestionis (commercial of a State from the jurisdiction of its own courts g from military operations. The principle of | State or of the foreign State—is a survival of 0 be above the law. This is no longer the 4 “Two United Kingdom decisions (i.e. ign immunity to be undergoing go described as ‘the only country view of absolute immunity.” * ical and diplomatic he role of the foreign226 al acceptance, in tho wostern world of restrictive theory of ihe ‘context of commercial activities, Sovereign mado hi Reteronce may be made hore to Wie Immunities of States 5 on ticle 1 of the convention states A Foy ios to the immunity sent convention § thatthe reer courts of anther Stato, Article & of the exercising juri i ‘end shall ensure that its courts determine on their own ‘other State under Article § is respected. \t may be noted here that the convention was January, 2008, Oni have so far become. Convention to come into force it is necessary for 30 co May, 2013, 28 countries have signed the Coi Exceptions of the above rule () Expr matter or case if it has expressly conse! wh regard tothe matter or case r (a) by international agreement; 0 (©) in a written contract; or (c) bya declaration before proceeding,4? (ii) Effect of Partici gael munity Rom aed (@) itself instituted the pro227 ke immunity from that nother Stato, the State cannot invo! aang 8g ‘out of that commercial trat A ronined nae 10 he corvonton, But Article 10 adds mt oii hove paragraph) does not apply: " inthe case of @ transaction between states; or , A 4 o ction have expressly agres to the commercial transac (o) it the ut oe .—Para 1 of Article 11 provides that unless (wy Contract, mre ee comes, ‘a State cannot invoke immunity from Stato which is otherwise competent in a proceeding to a contract of employment between the State and an individual for work sagemmed OF ee ey at cther State. But as ste peeme Para 1 does not apply if : the been recruited to perform particular functions in the VET BRILCLSEIW tic staff of a permanent mission to an or of a special mission, or is recruited to Stal at an international conference; or on enjoying diplomatic immunity; ibe, pocepang is the recruitment, renewal of iewodhidual, a tema Nad of state, the 4 irs of the employer State, re with the security interests of that State; State at the time when the has the permanent residence in otherwise agreed in writing gon the courts of theState in, oF its possession nyt di iar coliaeovable property situated in the State of the forum; between cout of another Sta the determination of any right of the (=) fade name of business name, trademark, intellectual or industrial property which enjoys a even if provisional, in the State of the forum; or (0) an alleged infringement by the State, in forum, ofa right of the nature to third person and is protected in (vill) Participation in Companies or ‘cannot invoke immunity from jurisdiction b ‘otherwise competent in a proceeding which other collective body, whether incorporated ‘concerning the relationship between the Si therein, provided that the body : ‘ (0) Stele hac Droceeding ‘vet emul to ProTa ear Par TOXTe BS 229 isdiction under English law, which more or loss ‘of enforcement jurl vi prorat ge ion bed poalen ,.may be summari ens there is a distinction between immunity from spond | J under ivaratonsion ar fontorcement jurisdiction of the forum state, distinction fod under English law and the State Immunity Su tna arene for immunity from execution. Act irtemational waiver of immunity by a State from execution. So is « eae ish law and the opening of a special account or aan by Slate that funds should be placed in a special under Sate ‘meet commercial creditor's claims constitutes: such a waiver, regards enforcement jurisdiction, English law gives affect to it by a ruling ™ arbank account ofa se ‘to meet the running expenses of a diplomatic mission is immune from enforcement measures. (v) Despite the fact that international law permits a limited exercise of enforcement against a foreign State, the provisions of the said epee! creditor's onus of proof defeat such limited a Me » Amendment of 1978 Act, several methods der power of attachment for commercial the creditor may seek security of his requiring the guarantee of a State Organisations also enjoy certain of the States in which they are situated. For Labour Organisation, and other specialized For the purposes of granting privileges as the Convention on the Privileges and .. Reference may also be made here to on the Privileges and immunities ia. 28 .N. Convention on Jurisdictional(7) Foreign Troop nderstood 10 cede a portion of his terrtonae -MeF addon," "a Sovereign Srv prince to pass through his dominiong ¢ F INTERNA’ —As pointed out by Marshall, C.J. in The Schooner ONAL Lay Tweet where he allows the pes. a waiver of all jurisdictions over the mm te Hao army authorities to exercise: discipline and to inflict those pu free passage the aceite par personne! to maintain his army may require. er of over Wvartiog ‘are immune from | - saorel sures of foreign authorities. This im jurisdictional meat eT eeNinn commander of the crew as well as molt bur pe State (/.€. official acts) even if they are ( law). The home state of the warship will be responsible no immunity will be available if the warship, its der 0 country in disguise and/or under false pi termed a ‘spy’ and may then be liable to confiscation a2ggneved coastal state. The immunity of warship, even panciple par in parem non habet imperium, i.@., no S State even if foreign warships have acted coi ‘© spy missions in peacetime, the members of the ¢ aang are, as such, immune to legal process in activities must be directed against the of the ‘spy’ ship have engaged the respo nights of self-defence against the ship, as reparation.” Exercise of jurisdiction in case o tp case of collision of two ships in the high State whose flag fies on the ship. ‘ which has been affected by the said case on the point is $.S. Lotus. This connection with the criminal jurisdiction in in Criminal Jurisdiction in Int al There are several views p international law. TherBHFEFELASEVFBLTQ 231 rly known as the theory of extra-tertitoriality. Turkey, ipporters. According to this theory, crime is a social rest of whole international community to ensure that the inishment, In international field, there are many such the States exercise criminal jurisdiction even outside their is 8.8. Lotus® decided by the Permanent Court of of the case and principles laid down are discussed ‘Turkish ship named Bozkourt collided with the French ship 9.5. ‘of this colision certain Turkish national died. After the collision the ‘Lotus reached the Turkish port, Constantinopole. The Turkish een ON areal French national and the officers of the ship and started criminal ‘them in accordance with Turkish Law. They were held guilty and ced of ‘Court. The French Government lodged a strong protest against this. Thereupon the Government of France and Turkey agreed to refer this matter to the onal Justice. The Permanent Court of International Justice principles in this connection :— true that in all systems of law the principle of the territorial linal law is fundamental, it is equally true that all or nearly all of law extend their action to offences committed outside the which adopts them, and they do so in ways which vary The territoriality by criminal law, therefore, is not an of international law and by no means coincides with Of international law in regard to collision cases to the oceedings are exclusively within the jurisdiction of the 9 opinion agreed with the majority of the court, itted that where a crime is committed in he direct result of the act of a person at the time law, by reason of the principle of where his act took effect, does not State, should he come within its Punishing French national and nt did not act contrary to the | even those countries which ch a way that it isINTERNATIONAL Lay 232 ihe State of which in Art. 97(1 UN Bern a administrative aut : I." This provi onthe Law of the Sea, of 10 May, 1952, relating tion. ; ‘ asics may also be ae bie to the Fad Court . in the Supreme ob "7 i re a oorar tear Of culpable acts or omissions tioutable to him notwithstanding that he is corporeal is not to give any extra-territorial operation to the law ; whose locality is in India, that the liability is fastened on the p warded by the law, if his presence in India for the trial can be Court quoted with approval the following dictum of jurisdiction but intended to produce and producing State in punishing the cause of harm as if he had been pr should succeed in getting him within its power.” &” The Court following observation of the Permanent Court of Internat certain that the Courts of many countries which have stretly ternitorial character, interpret criminal law in’ ‘of which at the moment of commission are in the nevertheless to be regarded as having been. ni the constituent elements of the offence, and mo there." The Supreme Court further observed in this context we are conscious that what we hi question merely of municipal law and not of the principles recognised in this behalf are Principles in the municipal law of various Jurisprudence relating to criminal No doubt some of the above dicta cuisde the State by foreigners and Specific legislation. But the principle Committed within the St n time of such commission is no ob ‘municipal law. This emphasises the on the locality of the offence and on Specified cases, such as, ambassador, But the other above principle will no by than se se e International (Democratic Republic of Co against Me Aly in a Ir. Abdon|"ew = international Court of Justice held by 13 to 3 votes that the issue of the circulation of the disputed arrest warrant had failed to respect the immunity jurisdiction and inviolability which Mr. Yerodia enjoyed under international the scope of immunity enjoyed by Minister of Foreign Affairs, the court ‘ ‘that throughout the duration of his or her off Minister of Foreign Atfairs, rent full immunity from criminal jurisdiction and inviolability. This is the when he Nhnistr is present in foreign territory in an ‘official or ‘private’ capacity acts in question were performed before he or jumed office as Minister of office, and finally, whether, the acts were performed in an official or , the Court ordered that Belgium by means of its own choosing warrant and to inform the authorities to whom the warrant had been the judgment for the first time defined the scope of the immunities of thereby contributed to the development of international law in a field of and interest, or criminal jurisdiction under International law see also matter discussed the heading ‘Extra-territorial Operation of State Laws and Protective 1 of State Over Foreigners’ in this Chapter. ‘subject, fires across the channel and kills a Frenchman on the shore ise Britain has jurisdiction over criminal K because K is a British 2 is committed within the territory of Britain. France can also claim the crime was initiated in Britain, it was completed or cl . Moreover, the effect of the crime initiated in Britain /. So if K goes to France, he can be apprehended and tried for bject, obtains money by false pretences by means of letters cipient in Pakistan." K can be tried by Bhutan in whose territory India, whose subject he is and also by Pakistan in whose falls. l, published in Texas a libel against a Mexican citizen, visit and is arrested by the Mexican Government for United States protests against this.** In view of the international law, and general jurisprudence relating law discussed above, Mexican Government is because the effect of the crime initiated in is not justified. is, however, subject to the condition through the territorial sea. So Geneva Convention on the that the criminal jurisdiction of n ship passing through thei © coastal State to take any steps pcos of iaroet ‘or investigation on board a foreign v jeaving internal waters,”? Undor Article 17 of the U.N, Sea ar OR. subject 10 the convention, ships of all § phe enjoy the right of innocent passage Article 18, passage shall be continuous and @) stopping and anchoring but only in 80 far as the same or are rendered necessary by force majeure or dist assistance to persons, ships or aircraft in dangers passage, Article 19 provides that passage is innocent peace, good order or security of the coastal state, contormvty with the convention and with other rules of U.N. Crime Commission N.B.—For this plea: Chapter on “Int Establishment of an Intemational Criminal Court." State Jurisdiction According to the Uni As pointed out by Starke, “An offence subject to comes under the jurisdiction of all States general admission the offence is contrary to the S treated as a delicate jure gentium and all Si the offenders. Clearly the purpose of such offence goes unpunished.””! Further, cases of Universal jurisdiction, namely, the erin The principle of Universality of war Conventions of 1949 relative to prisoners of wounded personnel . crimes or d crimes, raise somewhat different consid \was propounded first in respect of the eri enemies of whole mankind, it was Bucs imespectve ofthe fact as [0 Junsdiction of the State concemed. The Conference on the Law 0 the Sea, 1958, $225" provides that on the high seas or in, State, every State may seize pirate the control of pirates, and arrest the p Of the State which carried out the and may also determine the ae Property, subject to the rights o Since '2E052852E25 2 F[FLHLASSRESRHLES236 rvitude.—Economic servitudes in pape Shothor state certain commercial or Teen Bigha case of Union of India Cw. alte ‘Supreme Court observed y a " lance of servitude does The vonn worttude’ means nothing more than servitude does not amount to cession, Jn 1974 an agreement was entered into between land boundary and related matter including t provided that Indian enclaves in India should be enclaves mentioned in para 14 without claim to. Song to Bangladesh. Thereafter, an understanding the two Governments in connection with the “lease in Article 1974 Agreement. Item 14 provided the followi “india will remain the southern half of adjacent enclaves, measuring an area 2: exchange Bangladesh will retain the D Jease in perpetuity to Bangladesh an near ‘Tin Bigha’ to connect D ladesh.” Thus the agreement provided that Bangladesh to enable it to exercise 9 would continue to retain sovereignty 0 shall be Re. 1/- (Bangladesh Taka \desh shall not however be req India waived its right to charge such agreement used the term “lease in p “servituge suffered by India in its te Saeed Mukherji, C.J., who di sae forte, the said Bigha in favour of B Bangladesh under the ‘servitude’ in internati