UNIT-III: State under International Law

State Jurisdiction
a) Jurisdiction in general; Civil and criminal jurisdiction of the State.
b) Basis of the Jurisdiction: Territorial principle, Nationality principle, Protective principle and
Universality principle.
c) Jurisdiction over air space and outer space.
d) Exemptions from the state jurisdiction.
(A) JURISDICTION:

 Jurisdiction refers to the "power of a state to affect persons, property, and circumstances within its
territory (its land, its national airspace, and an internal and territorial water)."
 State jurisdiction is the power of a State under international law to govern persons and property by
its municipal law.
 It includes both the power to prescribe rules and the power to enforce them. It may be exercised
through legislative, executive, or judicial actions.
 "Jurisdiction" is a flexible term in international law, with different meanings depending on the
context. It can refer to a state's overall power, similar to "sovereignty," or just the authority in
specific areas, like collecting taxes or handling legal cases.
Civil and criminal jurisdiction of the State:
Criminal Jurisdiction: International law mainly regulates criminal jurisdiction, and it is stricter than
civil jurisdiction. Criminal cases, especially those involving foreign nationals, property, or interests, can
lead to diplomatic issues or public protests, which is why they are more closely monitored.
Civil Jurisdiction: Civil jurisdiction is usually under the control of individual countries and is governed
by private international law. While international law doesn't regulate civil jurisdiction as much, it does
address some aspects, such as the immunity of foreign diplomats and sovereigns from a country’s
jurisdiction in civil cases, although the extent of this immunity can vary.
(B)

1. Territorial (Domestic) Principle:

 The territorial principle gives a state the right to exercise jurisdiction over everything within its
borders, including people, property, and events.
 This principle is central to sovereignty, meaning other states must respect a country's authority over
its territory and not interfere in its internal matters.
 It applies to land, territorial waters, exclusive economic zones, and ships flying the state's flag on
the high seas.
 In international law, it's the most widely accepted form of jurisdiction, where simply being
physically present in a state’s territory is enough to establish jurisdiction, without needing to prove
residence or nationality.
 Mubarak Ali Ahmad vs. The State of Bombay (AIR 1957)
Mubarak Ali, a Pakistani national, falsely claimed to have a stock of rice to trick a complainant in
Bombay into sending money for an urgent rice import. The complainant believed Mubarak's lie and
sent the money.
Mubarak argued that since he was in Karachi (Pakistan) during the crime, he couldn't be tried in India.
However, the court ruled that even though Mubarak was not in India, the crime was committed in
Bombay, and all the actions of cheating occurred there. Therefore, his conviction under Section 420 of
IPC (cheating) was valid.
Mubarak had also surrendered to Indian authorities under the Fugitive Offenders Act, 1881, which did
not stop him from being arrested and tried for this new offence in India. As a result, his conviction for
cheating was upheld.
 Director of Public Prosecution vs. DOOT (1973)
The defendants were charged with trying to import illegal drugs (Cannabis) into the UK. Their lawyer
argued that since the crime was committed abroad, they shouldn't be tried in England.
The House of Lords ruled that English courts could still try the case because the defendants had a secret
plan to bring drugs into the UK. Even though the crime happened outside of England, the court held
that the UK had jurisdiction to prosecute the offenders for the unlawful act.
Lord Wilberforce stated that the case involved international elements, but the crime was connected to
England, so they could be prosecuted there.
Exemptions from territorial jurisdiction:
1. Diplomatic Agents
2. Foreign embassies
3. Foreign sovereigns
4. Foreign armed forces
5. Foreign warships
6. International organisations

2. Nationality (Personal) Principle:

This principle implies that a State jurisdiction extends to its nationals and actions they take beyond its
territory. It is based upon the notion that the 'close link' between the State and its nationals is personal
one independent of location. Criminal jurisdiction based on the nationality principle is universally
accepted. By invoking this principle, the States may extend their jurisdiction to their nationals travelling
or residing abroad. The nationality jurisdiction is often invoked to levy taxes in respect of earnings and
properties of the nationals abroad.

 Active Nationality Principle

This principle allows a state to exercise jurisdiction over crimes committed by its nationals, regardless
of where the offense occurs. It focuses on the nationality of the offender. For example, if a citizen of
India commits a crime abroad, India can claim jurisdiction.

 Passive Nationality Principle

This principle allows a state to exercise jurisdiction over crimes committed against its nationals,
regardless of where the crime occurs or the nationality of the offender. It focuses on the nationality of
the victim. In the Yunis case (1988), U.S. courts claimed jurisdiction over Yunis, a Lebanese national,
for hijacking a plane because two US citizens were on board. This was based on the passive nationality
principle, allowing prosecution when citizens are harmed abroad.

 Limitations of nationality principle:

1. Double Jeopardy: A person cannot be prosecuted in two different countries for the same offense,
even if both claim jurisdiction based on nationality.
2. Optional Application: States may choose whether or not to apply their jurisdiction over their
nationals abroad, meaning the application of the nationality principle is not always mandatory.
3. Restrictions on Enforcement:
Even if a state has jurisdiction based on nationality, it may face difficulties in enforcing its laws if
the accused is in another country, requiring extradition or international cooperation.
4. Conflict of Laws:
When multiple states assert jurisdiction over the same individual based on nationality, conflicting
legal systems and procedures may complicate the case, especially if the offense is viewed
differently under each state’s laws.
5. Sovereign Immunity: Nationals of a state who are accused of crimes abroad may benefit from
immunity protections (e.g., diplomats), limiting the application of the nationality principle in certain
situations.

3. Protective (Security) Principle:

 The protective (security) principle allows a state to exercise jurisdiction over actions that occur
outside its territory if those actions threaten its national security or vital interests.
 This principle is based on the idea that a state has the right to protect itself from harm, even if the
harmful act happens abroad.
 For example, a state can prosecute foreign nationals who engage in activities like espionage,
terrorism, or counterfeiting its currency, even if these acts occur outside the state's borders. The
focus is on protecting the state's security and interests, not on where the crime occurs or who is
involved.

 In the case of K.T.M.S. Abdul Kader v Union of India (1977), the Madras High Court ruled that
the Indian Parliament has the power to make laws that apply to both Indian citizens and foreigners,
even for actions taken outside India, if those actions harm India's security and economy. One
example is the COFEPOSA Act (1974), which targets people involved in smuggling and foreign
exchange violations. The Court said such laws are valid, even if they can't be enforced outside India,
because they can still be applied once the person is in India.

4. Universality Principle:
 The universal jurisdiction principle allows a state or international body to exercise jurisdiction
over certain crimes, regardless of where they were committed, the nationality of the perpetrator, or
the nationality of the victim.
 This principle is applied to crimes that are considered so serious and universally condemned that
they affect the international community as a whole. These crimes include:
 Genocide
 War crimes
 Crimes against humanity
 Torture
 Piracy
The rationale behind universal jurisdiction is that some crimes are so heinous that they are not just a
matter for the country where they occurred, but for the entire international community. As a result, any
state can prosecute these crimes, even if they have no direct connection to the offender or victim.
In the Congo v. Belgium (2002) case, the International Court of Justice (ICJ) addressed Belgium's
attempt to exercise universal jurisdiction to prosecute Abdulaye Yerodia Ndombasi, a former Congolese
minister, for war crimes and crimes against humanity.

 Belgium had issued an arrest warrant for Yerodia, who was accused of inciting violence during the
1998-2000 conflict in the Democratic Republic of the Congo (DRC).
 The ICJ ruled in favour of the DRC, stating that Belgium's actions violated international law by
prosecuting a sitting foreign minister, as he was entitled to diplomatic immunity under customary
international law.
 The Court emphasized that Yerodia's immunity as a high-ranking official prevented Belgium from
exercising jurisdiction over him for acts committed in his official capacity.
 This case highlighted the conflict between universal jurisdiction and state sovereignty,
specifically the limits of prosecuting foreign officials under the principle of universal jurisdiction
when they enjoy diplomatic immunity.
(C) Jurisdiction over air space and outer space.
Jurisdiction over air space and outer space is governed by distinct international principles, reflecting
their unique nature and importance.
AIR SPACE:

 States exercise complete and exclusive sovereignty over the airspace above their territory, including
land and territorial waters, as recognized under the Chicago Convention on International Civil
Aviation (1944).
 This means that foreign aircraft cannot enter a state's airspace without explicit permission, and
unauthorized entry is considered a breach of the state's sovereignty.
 However, airspace above the high seas is regarded as international airspace, free for navigation by
all, and governed by international law.
 In criminal matters, states have jurisdiction over offenses committed aboard aircraft registered in
their country, regardless of where the aircraft is located, as per the Tokyo Convention (1963). This
ensures that the state of registration maintains legal control over its aircraft and passengers.
OUTER SPACE:

 It is governed by international law under the Outer Space Treaty (1967), which establishes it as a
global commons.
 No state can claim sovereignty over outer space, celestial bodies, or the Moon, ensuring that space
remains free for exploration and use by all countries.
 While no state owns outer space, each retains jurisdiction and control over its space objects (such
as satellites) and personnel, irrespective of their location in space.
 Additionally, states are held liable for any damage caused by their space objects, under the Liability
Convention (1972).
 The Treaty also mandates the demilitarization of outer space, prohibiting the placement of weapons
of mass destruction or the establishment of military bases.
 In criminal matters aboard space stations, jurisdiction is determined by the state of registration of
the module involved or by agreements between the states concerned.
The key distinction between airspace and outer space lies in the approach to sovereignty.
Airspace jurisdiction is directly linked to the territorial sovereignty of states, ensuring their control over
what happens above their land and waters.
Outer space, however, is considered a shared domain for peaceful purposes, emphasizing international
cooperation and the absence of territorial claims. This framework reflects the global community's
commitment to managing these vital areas for the benefit of all humankind.
(D) Exemptions from the state jurisdiction.
Exemptions from state jurisdiction refer to situations where certain individuals, entities, or matters are
not subject to the usual legal authority of a state’s courts or laws. Some common exemptions include:
1. Sovereign Immunity: Sovereign immunity means that a state cannot be sued in its own courts
without its consent. This principle protects government entities and officials from being sued for
actions carried out in their official capacity.
2. Diplomatic Immunity: Diplomats and foreign embassy staff are generally exempt from the
jurisdiction of the host country's courts. They are immune from prosecution or civil suits in the
country they are posted to, as part of international treaties like the Vienna Convention on
Diplomatic Relations.
3. Foreign Sovereign Immunity: Foreign governments and their representatives are often immune
from the jurisdiction of domestic courts under international law, except in cases involving
commercial activities or certain violations of international law (such as human rights abuses).
4. Immunity of International Organizations: International organizations (e.g., the United Nations,
World Bank) enjoy exemptions from state jurisdiction as they operate under their own legal
systems. They cannot typically be sued in domestic courts without their consent.
5. Military and Extradition Immunity: In some cases, military personnel, especially when on
official duty, may not be subject to the jurisdiction of the host country’s courts. Also, certain
individuals may be exempt from extradition under specific treaties or agreements between states.
6. Privileges of Foreign Nationals: Certain foreign nationals may be exempt from the jurisdiction of
local courts based on international agreements or their specific status, such as foreign heads of state
or representatives of international bodies.
7. Jurisdictional Immunity in Certain Legal Matters: Some legal matters, such as those relating to
state security or national defence, may fall outside the jurisdiction of domestic courts and be handled
by military or specialized tribunals.
These exemptions are generally rooted in principles of international law and are meant to maintain
diplomatic relations, respect the sovereignty of states, and ensure the effective functioning of
international organizations.