Jurisdiction of a State

The term jurisdiction, in the context of international law, refers to the power of a sovereign state to prescribe, enforce, and adjudicate rules of law. It essentially defines the limits of a state's legal authority. This authority can be exercised within its territory and, under certain circumstances, extraterritorially.

Jurisdiction is a crucial aspect of state sovereignty, allowing a state to regulate persons, property, and events. It is the practical application of sovereignty and is necessary for a state to maintain order, protect its interests, and interact with other states.

Jurisdiction can be broadly categorised into three types:

• Prescriptive Jurisdiction: The power to make law and apply it to persons, property, and events, regardless of where they are located or occur.
• Enforcement Jurisdiction: The power to enforce laws through the use of coercive means, such as arrest, seizure, or other sanctions. This power is generally limited to a state's own territory.
• Adjudicative Jurisdiction: The power of courts to hear and determine cases. This relates to the competence of a state's judicial system to try persons or entities.

While prescriptive jurisdiction can sometimes extend beyond a state's borders based on specific principles, enforcement jurisdiction is almost always confined to the state's territory unless a specific international agreement or customary rule permits otherwise (e.g., hot pursuit on the high seas).

Power to exercise authority

The power to exercise authority is inherent in the concept of state sovereignty. Jurisdiction is the legal manifestation of this power. It is the right of a state to govern itself and to regulate affairs within its domain. This power is derived from international law, which recognises states as the primary subjects and allows them exclusive authority within their defined territories.

The exercise of this authority must, however, be consistent with international law. A state cannot exercise its jurisdiction in a way that infringes upon the sovereignty of other states. The principles governing the basis of jurisdiction discussed below help define the legitimate scope of a state's power under international law.

Basis of Jurisdiction

International law recognises several generally accepted principles that provide a basis for a state to claim jurisdiction over persons, property, or events. These principles often overlap, and states may invoke more than one principle simultaneously. The main bases of jurisdiction are:

Territorial Principle

The Territorial Principle is the most fundamental and widely accepted basis for jurisdiction. It asserts that a state has jurisdiction over all persons, property, and events occurring within its geographical territory. This principle is a direct consequence of state sovereignty over its land, internal waters, territorial sea, and the airspace above them.

Jurisdiction based on territory can be exercised in two ways:

• Subjective Territorial Principle: A state has jurisdiction over crimes or acts that begin within its territory but are completed or have effects outside. For example, plotting a crime within India to be executed in Nepal.
• Objective Territorial Principle: A state has jurisdiction over crimes or acts that begin outside its territory but are completed or have effects within its territory. This is also known as the "effects doctrine". For example, a cyber-attack launched from country A that causes damage to critical infrastructure in country B gives country B jurisdiction.

The objective territorial principle is particularly relevant in areas like cross-border pollution, telecommunications, and cybercrime, where an act initiated in one state has harmful consequences in another.

Nationality Principle (Active and Passive Personality)

The Nationality Principle asserts that a state has jurisdiction over its nationals, no matter where they are located. This is based on the idea that a state has a continuing relationship and responsibility towards its citizens.

• Active Nationality Principle: A state can exercise jurisdiction over acts committed by its nationals abroad. For instance, Indian law allows for the prosecution of Indian citizens for offences committed outside India. This principle allows a state to ensure its citizens do not engage in behaviour deemed illegal by their home state, even when abroad.
• Passive Personality Principle: A state can exercise jurisdiction over acts committed by foreigners abroad if the victim of the crime is a national of that state. This principle is more controversial than the active nationality principle and is generally accepted for certain serious crimes, such as terrorism or crimes against humanity. It allows a state to protect its citizens from harm, even when they are outside its territory. For example, if an Indian citizen is a victim of terrorism committed by a foreigner in another country, India might claim jurisdiction over the perpetrator based on this principle, though its exercise depends heavily on international cooperation for apprehension.

Protective Principle

The Protective Principle allows a state to exercise jurisdiction over aliens for acts committed abroad that are deemed prejudicial to its security, integrity, or vital national interests. This principle is invoked when an act committed by a non-national outside the state's territory poses a direct threat to the state itself.

Examples of acts falling under this principle include:

• Espionage against the state.
• Forging the state's currency.
• Plotting to overthrow the government.
• Offences against the state's immigration or customs laws.

The key element is that the act must directly threaten the state's fundamental interests, not just harm a national or have some general effect within the state. This principle allows a state to protect itself from serious harm originating from outside its borders.

Universality Principle

The Universality Principle allows a state 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 based on the idea that some crimes are so heinous that they are considered crimes against the international community as a whole, and therefore any state has an interest in prosecuting them.

Crimes subject to universal jurisdiction typically include:

• Piracy (historically the primary example).
• War Crimes.
• Crimes Against Humanity.
• Genocide.
• Torture.

This principle operates on the basis that the perpetrator of such crimes is considered an "enemy of all mankind" (hostis humani generis), and any state capturing the individual may prosecute them. The rationale is to prevent perpetrators of such grave international crimes from finding safe haven anywhere in the world. While controversial in some applications, it is a recognised basis for jurisdiction, particularly for crimes defined in international treaties.

Territorial Jurisdiction

The Territorial Principle is the primary basis for a state's jurisdiction. It grants a state exclusive authority to regulate persons, property, and events within its defined geographical boundaries. This principle is fundamental to the concept of state sovereignty and is the least controversial basis for jurisdiction in international law.

A state's territory includes its landmass, internal waters (like lakes and rivers), territorial sea, the airspace above these areas, and in some contexts, the subsoil beneath them. Jurisdiction within this territory is comprehensive, covering nationals and foreigners alike, subject only to specific exceptions granted by international law (e.g., diplomatic immunity).

Land, Air, and Maritime Jurisdiction

A state's territorial jurisdiction extends across different physical domains:

Land Jurisdiction

This covers the entire landmass, including mountains, plains, and internal waters like rivers and lakes. A state has absolute and exclusive jurisdiction over all persons and property located on its land territory and over all acts committed within its land borders. This includes criminal jurisdiction, civil jurisdiction, and the power to enforce laws and regulations.

Air Jurisdiction

According to international law, particularly the Chicago Convention on International Civil Aviation (1944), states have complete and exclusive sovereignty over the airspace above their territory. This means a state has jurisdiction over aircraft flying in its airspace, regardless of the aircraft's nationality. The state can regulate air traffic, impose rules of flight, and exercise jurisdiction over crimes committed aboard aircraft while they are in its airspace. For instance, a crime committed on a foreign airline flying over India falls under India's territorial air jurisdiction.

Maritime Jurisdiction

Maritime jurisdiction is more complex and is governed primarily by the United Nations Convention on the Law of the Sea (UNCLOS). A coastal state's jurisdiction extends into the adjacent sea areas:

• Internal Waters: Waters on the landward side of the baseline from which the territorial sea is measured (like ports, harbours, rivers, and lakes). Here, the state has full sovereignty and jurisdiction, equivalent to its land territory. Foreign vessels entering internal waters are generally subject to the state's jurisdiction.
• Territorial Sea: A belt of sea adjacent to the coast, extending seaward up to a limit not exceeding 12 nautical miles from the baseline. The coastal state exercises full sovereignty over its territorial sea, including the airspace above it and the seabed and subsoil below. Foreign vessels (merchant ships and state ships) have a right of innocent passage through the territorial sea. During innocent passage, the coastal state can exercise criminal jurisdiction on board a foreign ship only in specific circumstances, such as if the crime extends to the coastal state, disturbs the peace of the country, or if assistance is requested by the master of the ship or a diplomatic agent.
• Contiguous Zone: Extends up to 24 nautical miles from the baseline. In this zone, the coastal state can exercise jurisdiction to prevent and punish infringement of its customs, fiscal, immigration, or sanitary laws committed within its territory or territorial sea.
• Exclusive Economic Zone (EEZ): Extends up to 200 nautical miles from the baseline. The coastal state has sovereign rights for exploring, exploiting, conserving, and managing natural resources (living or non-living) of the waters, seabed, and subsoil. It also has jurisdiction regarding artificial islands, installations, structures, marine scientific research, and protection of the marine environment. Other states enjoy freedoms of navigation, overflight, and laying submarine cables and pipelines.
• Continental Shelf: The seabed and subsoil of the submarine areas that extend beyond the territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles where the continental margin does not extend so far. The coastal state exercises sovereign rights over the continental shelf for the purpose of exploring it and exploiting its natural resources (minerals, sedentary species).

Thus, while a state's most absolute maritime jurisdiction is in internal waters and the territorial sea, it exercises specific functional jurisdictions in the contiguous zone, EEZ, and continental shelf.

Jurisdiction over Nationals and Foreigners

A state's jurisdiction extends not only over its territory but also, to varying degrees, over individuals and entities.

Jurisdiction over Nationals

As discussed under the Nationality Principle, a state has the inherent right to exercise jurisdiction over its citizens (nationals) wherever they may be. This is based on the personal bond between the state and its citizens. The state can enact laws that apply to the conduct of its nationals abroad (active nationality principle). For example, many countries, including India, have laws allowing for the prosecution of their citizens for certain crimes committed outside the country. This applies to both individuals and corporations registered under the state's laws.

Jurisdiction over Foreigners (Aliens)

Jurisdiction over foreigners depends largely on their location and the nature of the act involved:

• Foreigners within the Territory: Generally, a state has full territorial jurisdiction over foreigners present within its borders. They are subject to the state's laws and court system, just like nationals. Exceptions exist based on international law, primarily concerning state officials enjoying immunity (diplomatic agents, consular officers, visiting heads of state). For example, a tourist from the UK committing a traffic violation in Delhi is subject to Indian law and the jurisdiction of Indian courts.
• Foreigners outside the Territory: A state's ability to exercise jurisdiction over foreigners for acts committed outside its territory is more limited and relies on specific principles of international law:
  • Passive Personality: Jurisdiction based on the nationality of the victim (used for certain serious crimes).
  • Protective Principle: Jurisdiction based on the threat posed to the state's vital interests.
  • Universality Principle: Jurisdiction over international crimes (piracy, war crimes, genocide, torture) regardless of the nationality of the perpetrator or victim.
  It is important to remember that while a state might have the *prescriptive* jurisdiction (the power to make laws) over foreigners abroad based on these principles, it generally lacks the power of *enforcement* (arrest, trial) unless the foreigner is present within the state's territory or brought there through legal means (like extradition or lawful apprehension in international waters).

Extraterritorial Jurisdiction

Extraterritorial jurisdiction refers to the power of a state to apply its laws to persons, property, or events that are outside its geographical territory. While territorial jurisdiction is the norm, international law permits extraterritorial jurisdiction under specific circumstances based on certain connecting factors.

The main bases for claiming extraterritorial jurisdiction are the principles discussed earlier:

• Nationality Principle: Exercising jurisdiction over one's own nationals abroad.
• Passive Personality Principle: Exercising jurisdiction based on the nationality of the victim.
• Protective Principle: Exercising jurisdiction over acts abroad that threaten the state's security or vital interests.
• Universality Principle: Exercising jurisdiction over certain international crimes regardless of any direct link to the state.

Extraterritorial jurisdiction is often exercised in areas like:

• Criminal Law: Prosecuting nationals for crimes committed abroad, prosecuting foreigners for international crimes or acts threatening national security, or prosecuting foreigners whose acts abroad harm nationals (under passive personality).
• Economic/Regulatory Law: Applying anti-trust or competition laws to foreign companies whose activities abroad affect the state's domestic market. Applying anti-corruption laws (like the US Foreign Corrupt Practices Act or the UK Bribery Act, which can have extraterritorial reach) to companies or individuals involved in bribery of foreign officials, even if the act occurred entirely outside the state's territory.
• Sanctions Laws: Imposing sanctions that prohibit or regulate activities by nationals or entities abroad, or by foreigners dealing with sanctioned entities, even if the transaction occurs outside the state.

The exercise of extraterritorial jurisdiction can lead to potential conflicts with the jurisdiction of other states, raising issues of comity and the potential for international friction. International law seeks to manage these potential conflicts, often encouraging states to act reasonably and to respect the primary jurisdiction of the state where the conduct occurred. Some doctrines, like the principle of reasonableness or effects doctrine (which is part of the objective territorial principle but often discussed in the extraterritorial context), suggest that the state exercising jurisdiction must demonstrate a significant connection between the conduct and the state's legitimate interests.

Immunity of Foreign States and Officials

While a state generally has jurisdiction over all persons within its territory, international law grants certain immunities to foreign states and their representatives. These immunities are based on the principles of sovereign equality of states (par in parem non habet imperium - an equal has no authority over an equal) and the need to ensure the smooth functioning of international relations.

Sovereign Immunity (State Immunity)

Sovereign immunity means that a state is immune from the jurisdiction of the courts of another state. Historically, this immunity was considered absolute – a foreign state could not be sued or have its property seized in the courts of another state under any circumstances.

However, the trend in modern international law and state practice has shifted towards restrictive immunity. Under this doctrine, immunity is granted only for sovereign or governmental acts (acta jure imperii), but not for commercial or private acts (acta jure gestionis). The distinction can be difficult to draw, but the rationale is that when a state engages in commercial activities, it is acting like any private entity and should not enjoy immunity from the legal consequences of those actions. Most states, including India (through the adoption of principles from other jurisdictions and relevant case law), follow the restrictive approach. For example, if a foreign government purchases military equipment (acta jure imperii), it might be immune from a lawsuit regarding the purchase in another state's court. But if the same government enters into a contract to buy cement for a construction project (acta jure gestionis), it might not be immune from a lawsuit for breach of contract in the courts of the state where the supplier is located.

The United Nations Convention on Jurisdictional Immunities of States and Their Property (2004), though not yet widely ratified, codifies the restrictive approach to state immunity.

Immunity of Foreign Officials

Immunity is also granted to certain foreign officials to enable them to perform their functions without hindrance or fear of coercion from the host state.

• Diplomatic Immunity: Granted to diplomatic agents (ambassadors, counsellors, attachés) and their families accredited to a state. Governed by the Vienna Convention on Diplomatic Relations (1961). Diplomatic agents enjoy extensive immunity from the criminal, civil, and administrative jurisdiction of the host state. Their person, residence, and diplomatic property are inviolable. This immunity is functional – it is granted to enable the diplomat to perform their official duties effectively. However, immunity does not mean impunity; the sending state can waive immunity, or the individual can be recalled or declared persona non grata by the host state.
• Consular Immunity: Granted to consular officers (consuls, vice-consuls) who protect the interests of the sending state and its nationals. Governed by the Vienna Convention on Consular Relations (1963). Consular immunity is generally more limited than diplomatic immunity. Consular officers have immunity from the host state's jurisdiction only for acts performed in the exercise of their consular functions (functional immunity). They may be prosecuted for serious crimes outside their official duties, although they might still benefit from certain procedural privileges.
• Special Missions: Representatives of states on temporary special missions also enjoy certain immunities based on specific agreements or customary international law, outlined in the Convention on Special Missions (1969).
• Heads of State/Government and Foreign Ministers: Enjoy high-level immunity ratione personae (personal immunity) while in office, extending to private acts, based on their status as representatives of the state. This immunity generally ceases when they leave office, although they might retain immunity ratione materiae (functional immunity) for acts performed in their official capacity while in office.

These immunities are crucial for the conduct of international relations, allowing states to interact and represent themselves without fear of arbitrary action by other states' legal systems.