State Jurisdiction in International Law: Densities of a Basic Concept by - Dr. BoreGowda S.B & Dr. K.L. Chandrashekhara

State Jurisdiction in International Law: Densities of a Basic Concept

Authored by - Dr. BoreGowda S.B

& Dr. K.L. Chandrashekhara     

Abstract

Each state has its own territorial jurisdiction over its people, property, etc. each state sovereign within its territories. It can make laws civil or criminal for its people. It is called territorial jurisdiction. Under international law all states are equal. Each state enjoys full freedom in its territory.  It is due to reason that each state must survive. The internal law protects the law-abiding nationals of that country. The state punishes the wrong-doers, who go beyond the municipal law. Else, not only the peace and security of that country, but also of the entire world peace. When state is not under the control of some other sovereign state, it can exercise its sovereignty throughout its territory, because every state is sovereign in international level. It is the duty of every state should not intervene in the internal and external affairs of some other sovereign state.

A state regulates its jurisdiction by legislation through its courts or by taking executive or administrative action.  State jurisdiction concerns both international law and internal law of a state. Each state has normally jurisdiction over all persons and things within its territory. The rules of state jurisdiction identify the persons and the property within the permissible range of state’s law and its procedures for enforcing that law. They are not concerned with the content of a state’s except in so far as it purports to subject a person to it or to prescribe procedures to enforce it. Object of this article is to find out who are immune from territorial jurisdiction, whether state can exercise its jurisdiction beyond its territory and the theory of extra territoriality applies to whom.

Key words: State, Jurisdiction, Sovereignty, International Law, Territory.

Introduction

A nation or territory considered as an organized political community under one government.  According to Salmond “state is a community of people which has been established for some objectives such as internal and external security”. According to Article 1 of Montevideo Convention 1993, State as a person of international law should possess 5 ingredients, they are:  

1. A permanent population

            2.  A defined Territory

            3.  Sovereignty

            4.  A Government

            5. A capacity to enter into relations with other states.

The modern period has witnessed revolutionary changes in regard functions of state. One of the main functions of state is to maintain internal peace and order and protect it from external aggression. State should do work for benefit for public and state has to perform many social, economic, educational and cultural functions.

Different kinds of States

States can be divided into 5 types, they are:

1. Confederation
2. Federal State
3. Condominium
4. Vassal state.
5. Protectorate state

1. Confederation: it is formed by states that are independent in the international field. Under international law confederation has no international personality. The states forming confederation are not treated as international persons.

1. Federal state: generally a federal state is formed by the merger of two or more sovereign states. A federal state is an international person under international law. United States of America, Switzerland and India are good examples of federal states.

1. Condominium: is a territory where two or more states exercise sovereignty. New Hebrides is a good example of condominium. England and France had a joint sovereignty over New Hebrides.

1. Vassal state: is a state which is under the control of another state. Its independence is so restricted that it has no importance under international law. It is treated to be under the international guardianship of another independent state.

1. Protectorate state: is a state which entrusts some of its important functions to another sovereign state. Bhutan is a protectorate state of India.

Generally State jurisdiction means it is the power of the state under international law govern persons and property by its municipal law. It includes both the power to prescribe rules and the power to enforce them.  The latter includes both executive and judicial powers of enforcement. Jurisdiction may be concurrent with the jurisdiction of other states or it may be exclusive. According to Prof Oppenheim state jurisdiction is essentially the extent of each state’s right to regulate conduct on the consequences of events. It may be civil or criminal. The rules of state jurisdiction identify the persons and the property within the permissible range of states law except in so far as it purports to subject a person to it or to prescribe procedures to enforce it.  State jurisdiction means essentially the extent of each states right to regulate conduct on the consequences of events. A state may regulate its jurisdiction by legislation, through its courts or by taking executive or administrative action. State jurisdiction, through its courts or by taking executive or administrative action. State jurisdiction concerns both international law and internal law of the state[1].

Types of State Jurisdiction

State jurisdiction can be divided into two types. They are

            1. Territorial Jurisdiction/sovereignty

2. Extra-Territorial Jurisdiction/Sovereignty.

Territorial Jurisdiction/sovereignty: A state can exercise its sovereignty within its territory. It means that state is independent and sovereign with in its territory and it can make a law for its territory and its people. It is called Territorial jurisdiction.  For the purpose of the exercise of territorial jurisdiction, the customary international law recognizes the state territory as follows

1. The land situate within the boundaries of a state recognized by international law over which state has its control and power.

2. The maritime costal belt or territorial sea, according to the law of the sea.

3. A ship bearing the flag of the state wishing to exercise jurisdiction and

4. Ports.

Section 2 of IPC provides that if any person committed a crime within the territory of India, our Authority have the jurisdiction to punish according to provisions of the code. Any person means either citizens of India or non-citizens of India. If Indian citizen committed a crime within the territory of India, then our Authority has the right to punish because he did the crime within the territory of India and he is a citizen of India. If Pakistan citizen did a crime with in India, our authority has the right to punish because he did a crime with in the territory of India. If citizen of Pak and USA both killed one Indian citizen in Delhi, after that both ran away to America, and then the question is whether American courts have the jurisdiction to punish both or American citizen only. According to municipal law, it has the jurisdiction to punish its citizen only and it can surrender the Pak citizen to State of Pakistan or State of India. In Chung Chi Cheung v/s The King[2], Chung Chi Cheung was a cabin Boy in a Chinese Armed ship and he was a British Citizen. He shot the captain and injured the Acting chief officer of the ship while was territorial Marinal Jurisdiction of China. The Captain died on the spot. The Acting Chief officer ordered the crew to get the ship to the port of Hong Kong and handed over the accused to the police of Hong Kong. The accused pleaded that the murder took place in the territorial water jurisdiction of china, and he should handed over to china. But International Court of Justice not accepted his argument and said both states has the jurisdiction to conduct trial because state of China have the jurisdiction to conduct trial and punish the accused because he was committed a crime within the territorial water jurisdiction of China and even Hong Kong Court also has the jurisdiction to start trial and punish the accused because he is a citizen of Britain. In Veer Savarkar Case[3], Savarkar was a famous Indian freedom fighter. He had revolutionary thoughts. He wants to free India from British clutches. While he was in London, he was arrested by British Government under The Fugitive Offenders Act 1881.while he was brought from London to India for Trail, he escaped from the ship and reached Marseilles Harbor. A French policeman arrested Savarkar and handed over him to a British policeman. French policeman thought that he did a crime in the board (ship) it’s my duty handed over him to British person. Later French government alleged a violation of its territorial sovereignty and asked the British government to return Savarkar to it as restitution. But British government did not heed the request of France. France filed a case against British before Permanent court of Arbitration. It gave its decision infavour of Great Britain.  The PCIJ said once a state extradited the criminal to another state, which state received the criminal it cannot return the criminal to which state extradited because there is no rule in International law regarding this. In S.S.Lotus Case[4], S.S. lotus was a French ship. While it was proceeding to Constantinople, it collided (hit or crashed) with a Turkish collier- the Boz-Kourt at the coast of Turkey. As a result, Turkish Vessel was sunk and eight Turkish nationals were died. The Turkish Government initiated criminal proceedings against the officers of both the ships and arrested them and convicted them. The French Government protested the trail and convictions, contending that the turkey had no jurisdiction. PCIJ held that Turkish Govt. did not violate the rules at the time of Punishing the French officers because the accident were happened within the jurisdiction of Turkey.

Immunities from Territorial Jurisdiction:

International law confers exemption and immunities from territorial jurisdiction on certain individuals and entities, these are called "Immunities from Territorial Jurisdiction”[5]. They are

1. Diplomatic Agents: Under Article 31 of Vienna convention 1961, it has been provided that "diplomatic agents shall be immune from the criminal jurisdiction of the state". It means that the keeping state shall not prosecute and penalise any diplomatic agent under any circumstance. Even he cannot be arrested. (Vienna convention on Diplomatic relations 1961)

1. Foreign sovereigns: this immunity is bases on the maxim “Par in porem non habit imperium” (No state can have jurisdiction over another state) the doctrine of sovereign immunity and provides that a foreign state (including a political subdivision, agency, or instrumentality of the foreign state) is presumed immune from the jurisdiction of state courts.  

1. Public properties of foreign sovereign state: how immunities are enjoyed by foreign sovereign as like his property also got the immunities. But one thing is that property should be owned by foreign sovereign state.

1. International organizations: All the international organizations are the international persons. They are equivalent with sovereign states. Therefore, they enjoy the immunity from territorial jurisdiction with the similar status of foreign sovereign.

1. Extradition Treaties:  Extradition is an action wherein one jurisdiction delivers a person accused or convicted of between countries; extradition is normally regulated by treaties. Most countries refuse to extradite their own nationals allegedly committing a crime in the requesting State; such countries claim their right to exercise State sovereignty over their nationals, even though the offence was committed in another country.
2. Foreign Troops: sometimes a state allows another state to have free passage of foreign troops in its territory. It means state which grants the free passage, waives its rights and grants immunities to those foreign troops. (Iraq-Kuwait war Saudi Arabia grants its territory to members of Security Council)

1. War ships and their crew: the immunities to war ships and their crew are similar to Foreign Troops. Under the traditional rule, warships thus appear to be immune from the jurisdiction of any state but the flag state.

Intervention: Sometimes State can exercise its jurisdiction beyond or outside of its territory. It means through by intervention state can exercise its jurisdiction outside of its territory. Intervene means to interfere in the affairs of another state. In international law, intervention means a country interferes the affairs of another country by means of force or by any other means[6].

Examples: 1. India intervened in the affairs of Pakistan in 1971. When Refugees of Bangladesh flew into West Bengal, to avoid the problems India declared the war against Pakistan and freed the Bangladesh and declared as a state in international level. It is called intervention by Force.

2. Russia agreed to supply Crio-genic engine to India for Rocket Technology. But America interfered this matter and force to Russia not supplies such. Due to this, Russia had broken this Agreement. It is called Diplomatic intervention.

3. Pakistan supplied deadly weapons to Kashmir and Punjab terrorist -it is called heinous intervention.

4. Iraq and Kuwait: (permanent members of Security Council) -it is called genuine intervention.

• Types of Intervention
• Internal Intervention
• External Intervention
• Punitive Intervention: (Penal Intervention) it is a punitive measure falling short of war.

• Internal Intervention: state should obey the rules of International law, because it is the duty of state should maintain internal peace and security. Internal intervention means if state intervene in the internal afire of some other sovereign of State.
• External Invention: one of the principles in international law is that a state cannot interfere in the external afire of some other sovereign State, because every one State is sovereign in international level. External Intervention means if a state is interfere in the external afire of some other sovereign state[7].
• Punitive Intervention: it means the use of military force across national boundaries to alter the internal affairs of a state that has violated international law or other widely recognised international norms.

Grounds of Intervention: state can interfere in the internal and external affairs of some other sovereign state in following grounds[8]. They are:

                                    1. Self Defences

2. Humanitarian Grounds

3. Enforcement of Treaty Rights

4. Intervention to prevent illegal intervention.

5. Balance of Power

6. Protection of persons and their property

7. Collective Intervention

8. Intervention to Maintain international law 

9. Intervention in Civil war.

• Self-defense: state can protect its property/territory from external aggression.

• Humanitarian grounds: in South Africa white people govt. neglected the black people and kept the nelson Mandela in jail and violated the human rights. UNO interfered and resolved the problems.
• Enforcement of Treaty Rules: previously it was good ground and now UNO Charter cancelled this provision.
• Intervention to prevent illegal intervention: (Iraq-Kuwait) 

Extra Territorial Jurisdiction: Where a state extends its jurisdiction beyond its territorial jurisdiction, it is called Extra-Territorial Jurisdiction.  Section 4 of IPC explains about Extra-Territorial Jurisdiction. It provides that if Indian citizen did a crime outside of India, then our authority has the right to punish that criminal according to law of the land, because he /she is a citizen of india.

According to this theory, in some cases, persons, property etc. may be situated physically within the territory, yet the state cannot exercise jurisdiction over them, vice versa, the property or persons may not be within the territory of the state may be able to exercise jurisdiction over them[9]. The theory of Extra- Territoriality applies on the following cases.

• Sovereign and High Officers of the State.
• Diplomatic Agents.
• Public Vessels of Foreign State.
• Armed Forces of Foreign State.
• International Organizations.
• Sovereign and High officers of the state: when sovereign rulers or high officers of foreign state visit other states, they are ordinarily regarded to be outside the jurisdiction of visiting state. If sovereign of state or its representatives committed crime in beyond its territory it has the jurisdiction to punish but where that person committed crime it cannot arrest and punish, because they can exempted from territorial sovereignty.  
• Diplomatic Agents: the diplomatic agents are also immune from different types of jurisdictions of states in which they are appointed. Diplomatic Immunity is a principle of international law by which certain foreign government officials are not subject to the jurisdiction of local courts and other authorities for both their official and to a large extent their personal activities.
• Public vessels of foreign state: public vessels of foreign states generally treated to be outside the jurisdiction of foreign states where they may be for the time being. On the high seas, vessels are subject to the exclusive jurisdiction and control of the flag State. This rule of customary international law is codified in Article 92(1) of the UN Convention on the Law of the Sea.
• Armed forces of foreign state: the armed forces of foreign states also enjoy certain immunities from the jurisdiction of foreign state where they are sanctioned for the time being.
• International Institutions: The jurisdictional immunities of international organizations are derived from the intent of their Member States, expressed in constituent treaties or agreements on privileges and immunities with regard to the legal relationship between that organization and its members.

In Haya De La Torre’s Case (Colombia V. Peru) a rebellion took place in Peru in 1948 but Failed. The Government issued an arrest warrant against rebellion leaders. Haya De La Torre was one of the Peruvian leaders against whom arrest warrant was issued. When this information received by Haya De La Torre, immediately he sought asylum to State of Colombia Embassy, situate in Lima capital of Peru. Colombia Government granted asylum on 03-01-1949. When this matter known by State of Peru, it requesting to Colombia Government to surrender Haya De La Torre because he did lot of rebellion activities against Peru State and also one of the main rebellion leader but State of Colombia refused to surrender or extradite him because he is not a criminal but he is a political offender and decided to take him to Colombia.at last this case came to International Court of Justice, it held that the principle of extradition will not applies to Political offender and The State of Colombia can give asylum to accused in its embassy situated in Lima, because it exercise its jurisdiction beyond its territory it’s called extra territorial jurisdiction.

Conclusion:

Jurisdiction refers to the power of a state to affect persons, property, and circumstances within its territory. It may be exercised through legislative, executive, or judicial actions. International law particularly addresses questions of criminal law and essentially leaves civil jurisdiction to national control. In international level every state is sovereign and state cannot interfere in the internal and external affairs of another state.

It is the duty of every state should behave according to international law but when we saw the history; it gives lot of evidence for us regarding violation of international law. When United Nations was established its plays an important role to control the conduct of states, even though UNO, some powerful states are intervene in the affairs of small states. Therefore, regarding this United Nations should conduct an international convention and enact a rules, then only we can control the wrongful acts of sovereign state.             

[1] K.C. Joshi, International Law & Human Rights, 4th ed, EBC publication, 2019, p.103.

[2] Chung Chi Cheung v R [1939] AC 167.

[3]Veer Savarkar Case (1911) 13 BOMLR 296.

[4] PCIJ (1927)series A.No.10

[5] K.C. Joshi, International Law & Human Rights, 4th ed, EBC publication, 2019, p.104.    

[6] Sir Robert Jennings and Sir Arthur Watts, Oppenheim’s International Law, 9th ed, Pearson Education,2003, p.427.

[7] S.K. Raghuvanshi, Tandon’s Public International Law, 18th ed, Allahabad Agency, 2017, p.108.

[8] K.C.Joshi, International Law and Human Rights, 4th ed, EBC Publication, 2019, p.104.

[9] Sir Robert Jennings and Sir Arthur Watts, Oppenheim’s International Law, 9th ed, Pearson Education, 2003, p.458.