State jurisdiction

Jurisdiction generally describes any authority over a certain area or certain persons.
The term State Jurisdiction means the legal competence which a State enjoys over the
territory which belongs to it. The term competence is a wide term and includes judicial,
administrative and legislative competence.

Classification of State Jurisdiction

State jurisdiction can be classified into 2:
a
b

Civil Jurisdiction
Criminal Jurisdiction

Civil Jurisdiction (CJ)

CJ is the authority or power of a State to apply its civil law.
Generally IL accepts every State having exclusive jurisdiction within its territory. However
any State can apply CJ only when a cause of action arises within territorial limit of State. But
application of CJ by the State is subject to certain exceptions wherein even if the cause of
action arises within the territorial limits of State, then also State cannot apply CJ. Such
exceptions are:
i

Foreign Sovereign Heads: foreign sovereigns are often treated to be outside the jurisdiction
of other States and enjoy many privileges and immunities. No, local jurisdiction could be
exercised over them. This is based on the principle par in parlem non habet imperium
which means an equal has no authority over an equal. Under IL, all foreign heads are
considered as equal.
Gaddafi Case
Once a French aircraft went to Libya and got blasted. The allegation was that the blast was
planned by Gaddafi. Some dependents of deceased in blast approached the French Court
for compensation. The Court issued warrant against Gaddafi. Gaddafi objected to the
warrant and claimed sovereign immunity. It was held that as Gaddafi was the head of State
of Libya, he was immune from any jurisdiction in respect of the allegation and hence all
the proceedings against him were cancelled. Terrorism was not considered by the Court as
a crime of sufficient gravity to remove immunity. However, there are crimes for which no
functional immunity could be accorded such as crimes against humanity, genocide, torture
and war crimes.
ii Diplomatic Agents (DAs): diplomatic agents enjoy certain privileges and immunities. They
are immune from the civil jurisdiction of the receiving state. DAs are governed by the
jurisdiction of the country sending them.

iii Foreign Armed Forces: In case a State sends its armed forces to another State then the
receiving State cannot exercise their CJ. Such forces are considered to by some to be
extra territorial, and therefore they remain under the jurisdiction of the State to which
they belong.
iv Floating Territories: under IL ships are the floating territory their registered country, and are
under that countrys exclusive jurisdiction. CJ cannot be applied to floating territories of
another country. It is a mandatory duty for every ship to carry a flag, a ship without flag
would be considered without nationality, and hence anyone can attack it.
v Foreign Aircraft: CJ cannot be applied to any activity done on an aircraft by any country
other than its registered state. This provision is codified under Tokyo Convention, 1963
vi Foreign Properties: The control over a foreign property is with its owner state & not with
the state where it is situated. Thus, as long as the foreign sovereign has some interest in
the property, it remains immune and it is immaterial for what purpose the property was
employed.
International Institutions: and their activities are exempted from CJ of a State. Only
International institutions & International forums can exercise jurisdiction.

Criminal Jurisdiction (CrJ)

Under International Law, CrJ means the power or authority of a state to initiate Cr
proceedings, but unlike CJ there is no unanimous view regarding application of CrJ. There is
difference of opinion regarding application of CrJ, which has given rise to number of theories
& principles.
a. Territoriality Principle: Most states including India practice the territoriality principle in
which the country in whose territory the crime has been committed, can exercise CrJ i.e.
according to this principle jurisdiction is established by reference to the place where the
offence is committed.. As we can see in the IPC, <insert section> it says that the code is
applicable to the whole territory of India.
Territorial jurisdiction over criminal competence poses no problems where the offence is
committed within territory of a State. But problems arise when a crime is commenced in
one State and completed in another State. This has led to divide of territoriality principle
into 2 categories i.e.
i)
Subjective Territorial Principle: it is where a State claims jurisdiction in those cases
ii)

where the crime commenced within its territory but completed outside the territory.
Objective Territorial Principle: it is where any of the elements of crime is

consummated in tis territory.

b. Active Nationality Principle: Under IL, there is a practice to permit jurisdiction based on
the nationality of the accused, meaning thereby the jurisdiction will be in the hands of the
State whose national is accused of the crime, e.g. IPC <insert section> states that it is
applicable to acts done by citizens of India.

c. Passive Nationality Principle: Under this principle, CrJ is permitted on the basis of the
nationality

of

the

victim,

e.g.

Mexico

is

strict

follower

of

this

rule.

Cutting Case: A Mexican national named Cutting had business in US & Mexico. A
newspaper that was having circulation in both the places published some defamatory
matter in their Texas edition against Cutting. He filed a case against the said matter, in
Mexico. The newspaper contended that since the crime was not committed in Mexico, his
claim could not stand. Mexican courts held that they follow Passive Nationality Principle,
hence, the can exercise CrJ.
d. Protective Principle: IL recognises certain circumstances under wherein an act is
committed by a foreign national in a foreign country but its effect is in another country. In
such cases the affected country can exercise CrJ in order to protect their safety and public
order. e.g. cyber-crimes; counterfeiting of currency. India also follows this principle.
KTMS Abdul Kader v. UOI case: Abdul Kader & his group (Pak nationals) made fake
currency notes in Pak & distributed that money through some people who came to India
who were caught by the Indian police, from them the police got to know about Abdul
Kader but since he was in Pak he couldnt be arrested. Later on when he came to India, he
got arrested, the IP arrested him. He objected that, saying that he was not an Indian
National & he didnt commit any offence in Indian Territory so they cannot exercise CrJ
on him. Madras HC said that India can exercise CrJ on the ground of protection of safety
and public order of the country.
e. Universality Principle: IL also recognises certain circumstances in which anybody can
exercise jurisdiction, irrespective of place, nationality and other such factors, e.g. in case
of slavery, genocide, espionage, piracy etc.
The concept of universal jurisdiction is based on the reason that there are certain offences,
which are so destructive of the international order and are contrary to the interests of the
international community as a whole that they are considered as international crimes.
In case of conflict of practices, which leads to conflict of jurisdiction, International Law is of
the view that whichever country has more convenience to carry out the proceedings such
country can exercise CrJ. But which country is having more convenience, would become a
subjective question & would be decided on the basis of facts & circumstances.
There are certain circumstances wherein CrJ cannot be applied. Such exceptions are:
i Foreign Sovereign Heads: foreign sovereigns are often treated to be outside the jurisdiction
of other States and enjoy many privileges and immunities. No, local jurisdiction whether
civil or criminal could be exercised over them. This is based on the principle par in
parlem non habet imperium which means an equal has no authority over an equal.
Under IL, all foreign heads are considered as equal.
Gaddafi Case

Once a French aircraft went to Libya and got blasted. The allegation was that the blast
was planned by Gaddafi. Some dependents of deceased in blast approached the French
Court for compensation. The Court issued warrant against Gaddafi. Gaddafi objected to
the warrant and claimed sovereign immunity. It was held that as Gaddafi was the head of
State of Libya, he was immune from any jurisdiction in respect of the allegation and
hence all the proceedings against him were cancelled. Terrorism was not considered by
the Court as a crime of sufficient gravity to remove immunity. However, there are crimes
for which no functional immunity could be accorded such as crimes against humanity,
genocide, torture and war crimes.
ii Diplomatic Agents (DAs): Diplomatic agents enjoy certain privileges and immunities. They
are immune from the criminal jurisdiction of the receiving state. DAs are governed by
the jurisdiction of the country sending them.
iii Foreign Armed Forces: in case a State send its armed forces to another State then the
receiving State cannot exercise their CrJ. Such forces are considered to by some to be
extra territorial, and therefore they remain under the jurisdiction of the State to which
they belong. However, the practice of the States in different. In principal in criminal
matters members of visiting forces remain under the criminal jurisdiction of local courts
in case there is no agreement or treaty to the contrary.
iv Floating Territories: Under IL ships are the floating territory of their registered country, and
are under that countrys exclusive jurisdiction. CrJ cannot be applied to floating
territories of another country. It is a mandatory duty for every ship to carry a flag, a ship
without flag would be considered without nationality and hence anyone can attack it.
v Foreign Aircraft: CrJ can be applied to foreign aircraft wherever there is a criminal act when
the flight is on board (land) & it affects the territory of a country. This provision is
codified under the Tokyo Convention, 1963.
vi Foreign Properties: The control over a foreign property is with its owner state & not with
the state where it is situated. Thus, as long as the foreign sovereign has some interest in
the property, it remains immune and it is immaterial for what purpose the property was
employed.

Jurisdiction of high sea

High sea is the area of a sea wherein no state has specific jurisdiction. It is a general rule that
no one can exercise jurisdiction over High Sea. But International Law recognises certain
exceptional circumstances where exercising jurisdiction in High Sea is permitted, such as:
1

Right to Hot Pursuit: Article 111 of UNCLOS says that under circumstances wherein
there is a suspicion on any ship regarding the safety of its own territory, it has a right to
pursue it, till the point necessary, in order to overcome the danger.

Right to Visit on Suspicion of Piracy: Article 110 of UNCLOS provides for a right to a
state to visit the High Sea territory under the circumstances when it has a suspicion of

Piracy.
Right to Punish Piracy: Article 107 of Law of the Sea Convention, permits jurisdiction in

High Sea to be exercised by a state in order to punish any act of piracy.

Right to encounter ships without nationality: This is a Customary International Law
principle, which allows the exercise of jurisdiction by a state to encounter a ship without

nationality i.e. without a flag.

Right to Blockade: Under CIL there is also a provision for exercising jurisdiction to set
up blockades during belligerency, blockade here means preventing entry & exit of ships
from port. Under CIL port is where the jurisdiction of a country ends and High Sea starts.

Every ship has a right to travel through High Sea, if it is prevented to do so, such right is
violated, but that is permissible under exceptional circumstances.

Jurisdiction in air & space

It is similar to High Sea or Flag jurisdiction.
Air
It was held under Chicago Convention, in the year 1944 that only registered country will
be having permission to exercise jurisdiction over its flight.
Under the Tokyo Convention of 1963 w.r.t. CJ complete jurisdiction is with the registered
country. Whereas, w.r.t. CrJ, the exception is that wherever there is a criminal act when the
flight is on board (land) & it affects the territory of a country then that state can exercise CrJ
over the flight.
Hague Convention in 1970
It was said that in case of Air Hijacking any country can attack the flight thereby permitting
jurisdiction.

Outer Space
Outer space under International Law is generally considered as no mans land. But, when a
state sends an object in outer space, then it has its complete jurisdiction over the property.
Outer Space Treaty, 1966