STATE JURISDICTION

• 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 (prescriptive jurisdiction). The latter
includes both executive and judicial powers of
enforcement.
• The rules of State Jurisdiction identify the persona
and property within the permissible range of a
State’s law and its procedures for enforcing that
law. They are not concerned with the content of a
State’s law except in so far as it purports to subject
a person to it or to prescribe procedures to enforce
it.
 EXERCISE OF JURISDICTION VS BASIS OF
JURISDICTION
In general, every State has exclusive jurisdiction within
its own territory, but this jurisdiction is not absolute,
because it is subject to certain limitations imposed by
international law. Thus in practice, it is not always
necessary that a State may exercise jurisdiction in its
territory; on the other hand, in some circumstances, a
State may exercise jurisdiction outside its territory.
Moreover, there is a distinction between the exercise
and basis of jurisdiction. J.E.S Fawcett has explained
this with the help of the following illustration.
An Englishman and a German murder a French man in Paris
and thereafter run away to England. So long as they are in
France, they can be arrested and tried by French Courts for
they have committed the murder in France and the fact that
they are foreigners does not make any difference. The very
fact of their presence in France gives jurisdiction to the
French Courts over them. Neither Germany nor England can
interfere in this although they may demand their extradition.
When they come to England, the English Courts can try the
Englishman but they cannot try the German although the
German accused for the time being is within the jurisdiction
of the English Courts. This is due to the fact that there is no
basis for jurisdiction for English Courts cannot try a foreigner
for having committed murder in some foreign State.
 SUBJECTIVE AND OBJECTIVE TERRITORIAL
PRINCIPLES
• It is an admitted principle of international law that
a nation possesses and exercise within its own
territory an absolute and exclusive jurisdiction and
that any exception to this right must be traced to
the consent of the nation, either express or
implied. But there are certain exceptions to this
rule. For example, in Britain Courts have
jurisdiction over British nationals in respect of
treason, murder, bigamy etc. wherever committed
 SUBJECTIVE TERRITORIAL PRINCIPLE
• This is regarded as the technical extension of the
territorial principles. According to this principle, a State
may claim jurisdiction over crimes commenced within
its territory but completed outside its territory. The
State where the crime commenced or initiated may
enact under its criminal law that it will have jurisdiction
over such preparatory acts. Ordinarily, States do not
exercise this type of jurisdiction. There are however,
certain situations wherein States where the crime
commenced orintiated are under the duty to punish
accused. This is provided for example, under the
Geneva Convention for the Suppression of
Counterfeiting of currency (1929)
 OBJECTIVE TERRITORIAL PRINCIPLE
• According to this principle, a State gets jurisdiction
over the crime, if any of the constituent elements of
the crime is consummated in its territory. For the
State concerned to assume jurisdiction it is also
necessary that the act must have produced some
harmful effect within or on the territory of the
State. Hyde has explained this principle in the
following words: The setting in motion outside of a
State of a force which produces as a direct
consequence an injurious effect therein justifies the
territorial sovereign in prosecuting the actor when
he enters its domain.
 EXTRA-TERRITORIAL OPERATION OF STATE
LAWS
• In the case of K.T.M.S. Abdul Cader and ors. V. Union of India, the
law relating to extra-territorial operation of laws has been
discussed. The petitioner was alleged to have smuggling goods.
This led the Madras State to reasonable apprehend that unless
they were detained forthwith they would continue to indulge in
similar activities which may provide a hazard to safety and security
of the Country. Hence detention orders were passed first under
the Conservation of Foreign Exchange and Prevention of
Smuggling activities Act, 1974. The arrest warrant was issued
under section 82 of the Criminal Procedure Code. The petitioners
contended that the Act has no extra-territorial application and
hence the State Government has no power under the Act to pass
orders of detention against persons who at the time when the
orders were made, were not
within India. The contention of the petitioners were
rejected and the petition was subsequently
dismissed by the Madras High Court. On appeal to
Supreme Court, it observed that it is well established
that the power of the Parliament to make a law in
relation to the topic entrusted to it is plenary, that a
law passed by the Parliament under article 245
cannot be invalidated merely on the ground it has
extra territorial operation and that such a law cannot
be questioned on the ground that it may not be
found capable of enforcement outside its territories.
 SOME EXCEPTIONS OF THE EXERCISE OF
JURISDICTION
• Diplomatic agents – Diplomatic agents enjoy certain
privileges and immunities. They are immune from the
jurisdiction of the civil and criminal courts of the
receiving State. In this connection the old view was that
the diplomatic agents enjoy these immunities and
privileges because they were deemed to be outside the
jurisdiction of the receiving State. In the present time
this theory has been discarded. According to the
modern view, diplomatic agents enjoy certain
immunities and privileges because of the special
functions they perform.
• Foreign embassies – Foreign embassies are often
considered to be outside the jurisdiction of the
State in which they are situated. For sake of
convenience, embassies are to be treated a part
of their home States.
• Foreign sovereigns – Foreign sovereigns are often
treated to be outside the jurisdiction of the other
States and possess many privileges and
immunities. This is based upon the principle that
one sovereign cannot exercise jurisdiction over
another sovereign. According to this principle vast
immunities and exemptions were granted to the
foreign sovereigns and foreign States. In case
• In the case of Schooner Exchange vs McFaddon,
a French Naval Vessel stayed in Philadelphia for
repairs after a storm. Some persons sought
possession of the ship on the ground that in
reality the ship was Schooner Exchange, an
American ship which they owned and was siezed
by France on the High Seas in 1810 in pursuance
of a Napoleonic Decree. The U.S. Government
however requested the Court to refuse
jurisdiction on the ground of Sovereign
Immunity. The Court held that the vessel was
exempt from U.S. Jurisdiction.
• Immunity in respect of public property of Foreign
Sovereign State – Like the person of foreign
sovereign, the property of the sovereign or the public
property of the State also receives certain immunities
and exemptions from the exercise of jurisdiction.
• Reference may be made here to United Nations
Convention on Jurisdictional Immunities of States and
their Property adopted by the U.N. General Assembly
on 2 December, 2004. Article 1 of the convention
states the scope of the convention. It says that the
present convention applies to the immunity of a State
and its property from the jurisdiction of the courts of
another State.
• Article 5 of the convention provides that a State
enjoys immunity, in respect of itself and its
property, from the jurisdiction of the courts of
another State subject to the provisions of the
present convention.
• Article 6 further provides that a State shall give
effect to state immunity under Article 5 by
refraining from exercising jurisdiction in a
proceeding before its courts against another State
and to that end shall ensure that its courts
determine on their own initiative that the
immunity of that other State under Article 5 is
respected.
• Personal injuries and damage to property –
Unless otherwise agreed between States
concerned, a State cannot invoke immunity from
jurisdiction before a Court of another State which
is otherwise competent in a proceeding which
relates to pecuniary compensation for death or
injury to the person, or damage to or loss of
tangible property, caused by an act or omission
which is alleged to be attributable to the State, if
the act or omission occurred in whole or in part in
the territory of that other State and if the author
of the act or omission was present in that territory
at the time of act or omission.
• Ownership, possession and use of property – Unless
otherwise agreed between States concerned, a State
cannot invoke immunity before a Court of another
State which is otherwise competent in a proceeding
which relates to the determination of:
1. Any right or interest of the State in its possession or
use of the immovable property situated in the State
of the forum
2. Any right or interest of State in movable or
immovable property arising by way of succession, gift
or bona vocantia
3. Any right or interest of the State in the administration
of the property, such as trust property
• Extradition Treaties- Under the provisions of the extradition
treaties, the persons who run away from their country after
committing crimes maybe extradited. That is to say, the State
where they have committed certain crimes may ask the State
where the accused is for the time being to return him so that
he could be prosecuted and punished according to the law
of the land. Thus in respect of such persons also, State may
exercise some sort of jurisdiction even outside its territory.
• Foreign Troops- The grant of free passage to the troops of a
foreign prince to pass through the dominion implies a waiver
of all jurisdictions over the troops during their passage and
permits the foreign army authorities to exercise jurisdiction
upon the army personnel to maintain disciple and to inflict
those punishments which the government of his army may
require.
• Immunity of warship and their crew – Under
international law warships enjoy a great measure
of immunity. Warships are immune from legal
process, execution or jurisdictional measures of
foreign authorities. This immunity is applicable
to the commander of the crew as well as to the
ship itself. This immunity is not lost for acts of
State (i.e. official acts) even if they are illicit. The
home State of the warship will be responsible for
its acts. However, no immunity will be available
if the warship, its commander or crew industries
in a foreign country in disguise and/or under
false pretenses.
 CRIMINAL JURISDICTION IN INTERNATION
LAW
There are several views prevalent in connection with
criminal jurisdiction in international law. There is a great
controversy among the States in this connection. Following
are the three main views prevalent in this connection:
• According to the first view, each State can exercise
criminal jurisdiction within its territory. This theory is
popularly known as the theory of territoriality of
criminal jurisdiction. This theory has been supported by
Great Britain, America and some other States. These
States subscrbe to the view that each State is entitled to
exercise criminal jurisdiction only within its territory.
• This theory is also known as the theory of territoriality,
but it admits certain exceptions to this general theory.
France, Germany etc are its chief supporters. These States
have accepted the theory of territoriality with certain
modifications. According to them, a State may exercise
criminal jurisdiction even outside its territory on the basis
of the national security and on economic grounds.
• The third theory is popularly known as the theory of
extra-territoriality. Turkey, Italy etc are its chief
supporters. According to this theory, crime is a social evil
and it is in the interest of whole international community
to ensure that the criminals get due punishment. In
international field, there are many such matters in which
the States exercise criminal jurisdiction even outside their
territory.
 S.S. LOTUS CASE
A Turkish ship named Bozkourt collided with the French
Ship S.S.Lotus. In consequence of this collision certain
Turkish national died. After the collision, the French
Ship reached the Turkish port, Constantinople. The
Turkish Government arrested French national and the
officers of the ship and started criminal proceedings
against them in accordance with Turkish Law. They
were held guilty and convicted by the Court.. The
French Government lodged a strong protest against
this. Thereupon the Government of France and Turkey
agreed to refer this matter to PCIJ. The PCIJ
propounded the following principles in this connection:
• Though it is true that in all systems of law the
principle of the territorial character of the criminal
law is fundamental, it is equally true that all or
nearly all of these systems of law extend their
action to offences committed outside the territory
of the State which adopts them, and they do so in
ways which vary from State to State. The
territoriality by criminal law, therefore, is not, an
absolute principle of international law.
• That there is no rule of international law in regard
to collision cases to the effect that criminal
proceedings are exclusively within the jurisdiction
of the State whose flag is flown.
The Court therefore ruled that by prosecuting
and punishing French national and the officers
on the board of the ship, the Turkish
Government did not act contrary to the rules of
international law.