State Jurisdiction

State jurisdiction is the extent and limits of legal competence of a State/entity/regulatory authority to
make, apply, and enforce legal rules w.r.t persons, property, and other matters. Exercise of sreflects
the classic exercise of state sovereignty, equality of states, and non-interference in domestic affairs.
The two arms of SD are (i) State is supreme internally within its own territorial JD and (ii) A
State must not interfere in the domestic affairs of another State unless it is expressly permitted.
The principle of sovereignty shields
The Lotus Principle
• The first and foremost restriction imposed by IL upon a State – failing the existence of a
permissive rule to the contrary – it may not exercise its power in any form in the territory of another
State. – PCIJ in The Lotus Case (1927)
– i.e., a state may not exercise jurisdiction in the territory of another state unless it is permitted
by a contrary rule of international law, and
– A State is entirely free to exercise its jurisdiction over the territory which belongs to it
Art. 2(7) of the UN Charter states that nothing contained in the present Charter shall authorise the
UN to intervene in matters which are essentially within the domestic jurisdiction of any state or shall
require the Members to submit such matters to settlement under the present Charter; but this principle
shall not prejudice the application of enforcement measures u/Ch. VII.
• Jurisdiction of a State over its territory (i.e., a State enjoys civil as well as criminal
jurisdiction over all persons and things within the territory of a State which falls under its territorial
jurisdiction).
• There is a theory (called Area Theory) which recognizes sate territory as an element of State
(as studied in ILP), which regards the violation of state territory as the violation of State personality
and that of the people living in that state.
What are the types of jurisdictions? Broadly speaking, JD can be divided into three types –
a. Prescriptive – Prescriptive JD gives the entity the capacity to make, amend, or repeal legal
rules. Regulates the ‘jurisdiction to prescribe’, through which a State’s constitutionally recognized
organs (L/E/J) make binding laws regulating affairs in its territory (and sometimes abroad). It further
governs the basic question of over whom, and in what situations, a State may extend its laws, compel
conduct, or demand certain penalties.
b. Enforcement – Enforcement JD gives the entity the capacity to ensure/compel compliance
with such ‘prescribed’ legal rules. Officials and organs of States exercise exclusive ‘jurisdiction to
enforce’ over certain persons/conduct located in their territory. Generally, enforcement JD is confined
to the territorial JD of a State. In some cases, enforcement may be carried out in another State, but
with express consent.
c. Adjudicative – Adjudicative JD gives the entity the capacity to adjudge upon disputes
concerning the applicability of its prescribed rules/laws.
Which is broader, prescriptive or enforcement? Virtually, a State has unlimited prescriptive JD.
But IL does not always allow a State to enforce its legislation outside its territory without an int.
agreement or a rule of CIL permitting it. The ICJ, in the SS Lotus case, opined that the first and
foremost restriction imposed by IL upon a State is that failing the existence of a permissive rule to the
contrary, it may not exercise its power in any form in the territory of another state. In this sense, JD is
certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a
permissive rule derived from int. custom or from a convention.
What is the application of prescriptive and enforcement jurisdiction? Prescriptive and
enforcement jurisdiction, both have territorial and extraterritorial application.
There are two approaches to jurisdiction. Either one allows States to exercise jurisdiction as
they see fit, unless there is a prohibitive rule to the contrary; OR One prohibits States from
exercising jurisdiction as they see fit, unless there is a permissive rule/principle to the contrary.
States are generally considered to be authorized to exercise jurisdiction if they can advance a
legitimate interest based on personal or territorial connections of the matter to be regulated. A
jurisdictional nexus is required between the State claiming to exercise prescriptive JD and the conduct
that it claims to regulate. Such a nexus is governed by principles of jurisdiction.
What are these permissive principles of jurisdiction? The principles of jurisdiction can be divided as
per their application –
TERRITORIAL APPLICATION
a. Territoriality Principle
Generally, all persons found within the territory of a State are bound by its laws. States have unlimited
and exclusive sovereignty over its territory, save such as those obligations required by IL (e.g.,
requirements by treaties on diplomatic relations, CIL norms or jus cogens norms). The territory of the
State includes land territory + territorial waters (12 NM from its coastline) + airspace over land and
sea territories (12 NM)
It can be subjective and objective. Subjective territorial means the ability to regulate an act which
initiated within its territory but only consummated outside. Objective territorial means the exercise of
JD by a State over an act which originated outside its territory; but consummated within it.
EXTRATERRITORIAL APPLICATION
a. Nationality/Active Personality Principle
A state and its nationals are inextricably linked. While there is no definition of nationality in any
convention/treaty, according to the Nottebohm case, the ICJ held that nationality is a legal bond
having as its basis a social fact of attachment, a genuine connection of existence, interests, and
sentiments, together with the existence of reciprocal rights & duties. A State is entitled to exercise JD
over its nationals, even when they are found outside the territory. Under active personality, the
individual may reasonably be informed about what law may apply to the conduct in question.
b. Passive Personality Principle
A State is entitled to exercise JD over non-nationals for acts committed abroad, provided that the
victims are nationals of the State claiming JD. This principle is claiming JD based on the nationality
of the victim. This principle is considered as an aggressive form of extraterritorial JD. Generally, it
does not apply to ordinary torts or crimes. This principle makes it difficult to anticipate what State’s
law will the perpetrator be subjected to, as the perpetrator will not usually know the nationality of the
victim. While controversial, State practice considers this JD as reasonable for certain crimes (usually,
terrorism, torture, hijacking, …). Some conventions authorize (but not compel) the use of passive
personality principle.
c. Protective Principle
The protective principle allows JD to protect a State from acts perpetrated abroad which jeopardize its
sovereignty or its right to political independence. It is invoked when ‘vital interests’ of a State are
endangered. Th exercise of JD is to protect themselves, even against activities committed by non-
nationals that take place outside the territory. This can be used in some cases like that of espionage,
terrorist-related activities, smuggling, printing counterfeit currency, treason/coup d’état, taking of
hostages, aircraft hijacking, illegal immigration, human trafficking, etc. This principle is rarely
exercised.
d. Universality Principle
Generally, JD is premised on the presence of a jurisdictional nexus. But universality principle does
not operate on the basis of a connecting factor. It operates solely on the nature of the crime, without
regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the
nationality of the victim, or any other connection to the State exercising jurisdiction. This is as per
Principle 1 of the Princeton Principles on Universal JD.
This principle gained international attention only post-1990s, when ‘bystander’ States started
prosecuting the perpetrators of such crimes as war crimes, genocide, crimes against humanity, piracy,
and torture. E.g., the four Geneva Conventions (1949) allowed domestic courts the competence to
try for grave breaches (wilful killing, torture or inhuman treatment, unlawful deportation of protected
persons, and taking of hostages).
The classical understanding of universal jurisdiction is informed by the principle of aut dedere aut
judicare (either extradite or prosecute)à a State is required to establish JD over a perpetrator of the
offense present in the territory, if it does not extradite them (E.g., Art. 7 of UN-CAT).
• Example: Col. Kumar Lama case
– A Nepalese army soldier, allegedly tortured Nepalese citizens in Nepalese territory
in 2005.
– He in 2012 went to London on a casual trip, where he was arrested and tried in the
Old Bailey
• i.e., a national court may prosecute individuals for serious crimes against international law –
such as war crimes or torture – based on the principle that such crimes harm the international
community or international order itself (breach int'l public policy)
• Can be used in: Genocide, Torture, Piracy in High Seas, War Crimes, CAH, Terrorism, Slave-
trade, airplane-hijacking, drug-trafficking, apartheid, etc.

Jurisdictional Rule
There is general rule of jurisdiction under public international law which prescribes that the state has
jurisdiction has jurisdiction over its territories. The exceptional rule is that the state can exercise its
jurisdiction over territory of another state when there is agreement with that state to do so. Absence
of the agreement makes the state loses its jurisdiction over another state.
Extradition
This is surrender of accused person by one state to the jurisdiction of another state. It is the process
by which the state upon request of another state effects the surrender of the accused person for trial
for crime punishable by the laws of the requesting state and committed outside the state. For instance,
China surrenders the drug accused person to Tanzania for prosecution. Regulation of Extradition
Extradition operates when there is treaty between the surrendering state and requesting state upon the
extradition process. Moreover, there must Extradition Acts in the states which prescribe the
extradition. The treaty and Acts must prescribe inter alia crimes extraditable, extradition procedures
and safeguards and relation between the extradition treaty and extradition Act. For instance, Tanzania
has the Extradition Act, CAP 368 RE 2002 which deals with extradition with countries she entered
the treaty with for extradition.
Immunity from jurisdiction
It is the privilege granted to persons from being prosecuted by the state by their positions. It is the
immunity to officials protecting them from liability for injury or crimes caused by their acts they have
done as part of their official duties. There is certain state officials when they commit wrongs in the
jurisdiction of another state can be granted immunity from being prosecuted by the state that has
jurisdiction because they have done wrongs during executing the official functions.
Types of Immunity from Jurisdiction
There are various types of immunity from jurisdiction of the state. These types are classified
depending on the position of those officials in the state capacity.
(i) Sovereign immunity
This is immunity from jurisdiction granted to Heads of States. They are exempted from being
exercised jurisdiction of another state. This immunity is not absolute. It can be waived by the state
expressly or impliedly.
(ii) Diplomatic Immunity
This immunity is given to certain members of foreign embassies such as ambassadors or high
commissioners for the crimes they have committed in the host state. This is immunity granted to
diplomatic agents and their families from being prosecuted by the host state. This immunity
commences when these diplomatic agents are appointed by their states. This immunity can be waived
by the sending states.
(iii) Consular immunity
Consular is member of foreign embassy dealing with commercial and administrative functions of the
state that has sent him or her to the receiving state. They promote commercial and administrative
relations between individuals of the different states. Consular immunity is the immunity granted to
consular from being prosecuted for the crimes they have committed in the receiving state during
execution of their functions. This immunity can be waived by the sending state.
(iv) International Organisation Immunity This is immunity granted to certain officials of
international law organisations from being prosecuted for the crimes they have committed when
carrying out their official duties. This immunity ensures fulfilling their objectives.
These, are limitations or exceptions to the general rule of territorial sovereignty.