This article is written by Arijit Mishra, from KIIT School of Law, Odisha. This article talks about the Jurisdiction in International Law and the Jurisdiction of the States.
Table of Contents
Jurisdiction is a practical authority given to a legal body to deal with legal matters by implications. In Public International Law, the concept of jurisdiction has a strong link with sovereignty. Jurisdiction allows State for sovereign independence which they pass on with the global system of equal States stating the laws related to persons or activities in which they have a legal interest.
Territorial Jurisdiction of the States
It is derived from State sovereignty and constitutes several features. It is the authority of the State over persons, property and events which are primarily within its territories.
State Authority has the power to prescribe, enforce and adjudicate the Rules of Law.
The territorial jurisdiction of the State extends over to its with:
- national airspace,
- internal water,
- territorial sea,
- national aircraft,
- national vessel,
It does not only encompass the crime committed on its territory but also the crimes that have effects within its territory. In such a case, a concurrent jurisdiction occurs.
Liechtenstein v. Guatemala
In this case, Nottebohn a german lived in Guatemala for 34 years. He has his German citizenship and then he also applied for Liechtenstein citizenship a month after the outbreak of World War ll.
The application was approved by Liechtenstein. After this approval, he travelled to Liechtenstein and during his return to Guatemala he was not allowed to enter because he was deemed to be a German citizen. Liechtenstein filed a suit before the court on Guatemala to allow him as a citizen.
The Court held that granting citizenship is solely the concern of the granting nation. But in this case, there is no relationship between Liechtenstein and Nottebohn. This happened because of the war that they became two nations. Hence, the court said that Nottebohn wasn’t forced by the Guatemala country to recognise him as a citizen and in result, the suit was dismissed.
UK vs. Norway (North Atlantic Fisheries Case)
In this case, the UK requested the International Court of Justice (ICJ) to determine how far Norway’s territorial claim extended to sea and to provide some compensation because Norway interfered in the fishing vessel of the UK and also claimed that Norway’s claim to such extent was against International Law.
The Court held that Norway’s claim to the waters was consistent with the International law regarding the part of the sea space.
Criminal jurisdiction is where the powers of the Court are described in dealing with a case where a person is accused of an offence. Criminal Jurisdiction is used in many laws like Constitutional Law and Public International Law.
The three distinct situations where only the accused person can file a suit are:
- To control the relation between States, or between one State and another;
- To control the relationship between the Federal Courts and Domestic Courts;
- Only where he has committed the offence and not in any other State. Also, the law of that State should be a codified law.
SS Lotus Case (France vs. Turkey)
In this case, there was a declaration by Turkey over the French citizen who was the first officer of the ship that collided with a Turkish ship on the High Sea. It was challenged by France as a violation of the International law.
The Court stated that Turkey has the authority to arrest the French officer under the Treaty of Lausanne. It also stated that if someone challenges the jurisdiction of a Sovereign State, then the burden of proof will lie on the plaintiff.
International law is a system of freedom- countries can act in any manner which is not expressly prohibited. This case is reviewed as a high mark of positivism; that the State must keep control over sovereignty.
The Court also stated that France and Turkey had concurrent jurisdiction over cases arising abroad on a French flag vessel on the high seas. Many treaties have overruled these and said that only the flag State has jurisdiction.
Types of Criminal Jurisdiction
This includes the geographical boundary of a court’s jurisdiction. We can take an example where the Municipal Courts do not have jurisdiction over the crimes that occur outside the city limits. Let us understand this with a case law.
Mubarak Ali Ahmad vs. the State of Bombay
In this case, Mubarak Ali with a dishonest intention made a false representation to the complainant in Bombay saying that he has a ready stock of rice so that the applicant should send the receipt of money to the complainant who was anxious to import rice urgently and to receive the amount on the belief of such representations. It was contended on the grounds that the Pakistani national, during the period of the commission of the offence has not stepped in India and he was in Karachi, so he cannot be tried in the Indian Courts nor he can be held punishable under the Indian Penal Code. In the extradition proceeding the trial which is pending in a court cant be tried for the second time. Hence the conviction was unsustainable.
The Court held that all the ingredients constituting the offence of cheating under Section 420 of the Indian Penal Code have been done in Bombay, even though the offence is committed there and though the applicant was not present in India during the commission of the offence, his conviction is valid under Indian Penal Code.
As the appellant surrenders to the Indian Authorities under the Fugitive Offenders Act, 1881. There is no such provision in this Act preventing arrest in India for trial of a fresh offence. His conviction was valid. The appellant who was a Pakistani national was convicted for cheating in business under Section 420 of the Indian Penal Code.
Director of Public Prosecution vs. DOOT
In this case, the defendant was charged for unlawful acts which are for the import of dangerous drugs into the UK. Defendants counsel said that they shouldn’t be tried in England because the offence was committed abroad.
The Court held that the respondents were aliens which had a secret plan to import Cannabis in the U.K.
The House of Lords stated that English Courts have jurisdiction over the offences committed in England.
Lord Wilberforce, in this case, stated that it constitutes international elements- that the suspect were aliens and an unlawful act is done abroad.
Hence, there is no question that if there is any breach in the rule of the law then they will be prosecuted in the country where the crime has been committed.
This principle permits a country to exercise its criminal jurisdiction over the nationals accused of criminal offences in other States. In the UK it is generally limited to treason, murder and bigamy committed by British nationals abroad. Hence common Law countries never protested against the extensive use of the nationality principle to decide jurisdiction in criminal matters by other States.
The two types of Nationality Jurisdiction are:
- This principle is for the protection of interest of the State from abroad.
- Strict application on territory could be harmful to the peaceful existence of international society.
- The State has its fundamental right to apply its laws to prosecute illegal conduct.
- Treaty-based passive nationality is more effective than Statute based passive nationality.
- Jurisdiction can be exercised by the State where the offence took place.
- This has been opposed by common law States but due to the transnational crimes, it gets approved.
The Universality principle implies that a State can claim jurisdiction over certain crimes committed by any person from anywhere in the world, without any relation to territory, nationality or special State interest.
Before the Second World War, the Universal Jurisdiction was considered as similar to the International Law by the common law countries, except for the acts which were regarded as crimes in all countries and crimes against the international community as a whole such as piracy and slave trade. After the Second World War, Universal jurisdiction has been universally identified over certain acts considered as international crimes(war crimes, a crime against humanity, genocide).
International crimes committed against the international community are punishable under International Law. Under the universality principle, each and every State has jurisdiction over the international crimes that are committed by people.
The Schooner Exchange vs. McFaddon
In this case, There were two Americans who laid down their claims of ownership and entitlements to the Schooner Exchange.
The Court held that the national ships during the war are free from any obligation imposed due to the friendly relations with another State. A nation’s jurisdiction within its sovereign territory is exclusive and perfect.
It is also a type of criminal jurisdiction, but we will deal with this principle separately.
The protective principle identifies that a sovereign State can adopt a statute that criminalises act or any conduct which occurs outside the borders and where that conduct affects the sovereign State. Under this principle, a nation can adopt laws related to crimes which obstruct the functions of government or pressurize its security.
Article 51 of the UN Charter
Article 51 provides the countries to engage in self-defence and against an armed attack. A case relating to Self-Defense is:
Nicaragua vs. USA
In this case, In 1979, when a pro soviet government called the Sandini States came to power in Nicaragua, the US authority were alarmed, as this was the height of the cold war.
In 1981, the Reagan administration decided to support the rebel forces in Nicaragua called Somosistas, who was a USA citizen.
The Central Intelligence Agency ran extensive illegal and secret operations targeting the Nicaraguan army and air forces, supplied arms, ammunition, money and frequently kidnapped Nicaragua citizens.
Nicaragua citizens brought a case against the USA for violating the Treaty of the UN Charter.
The Court held that US contested that ICJ did not have jurisdiction to hear this case but ICJ nevertheless proceeded with the case because of the 1955 treaty of friendship between Nicaragua and the USA.
The ICJ found out that the USA had knowingly and intentionally violated the provisions of the UN Charter, general rules of International Law and had clearly violated the territorial sovereignty of Nicaragua.
In 1992, because of tremendous pressure Nicaragua took back the complaint and unofficially apologized to the US Government.
Abdul Kader Mahomed Jhaveri vs. Union of India
In this case, the petitioner was a foreign national and a citizen of the Republic of South Africa. The passport issued by the Republic of South Africa on the basis of which he came to India and in the meantime passport expired and again he asked the Republic of South Africa for the issue of a new passport which was still valid.
The respondent who is the authority, initiated the legal proceedings against him for the breach of the provisions of the Foreign Exchange Regulations Act, that he is not a citizen of India but a resident of India.
He carries on his business activity in India. But had done without the permission of the Reserve Bank. And it was contended that the petitioner should be penalised for the breach of the provision. Due to the pending proceedings, the passport has been seized by the respondent. The petitioner contended that the seizure was null and void and without the permission of any jurisdiction. So the respondent should be directed to return the passport.
The commission of inquiry headed by Justice Shah stated that the period for which the passport was impounded cannot be said to be definite and certain and it may extend for an indefinite time. This would clearly make the validity of an order unreasonable and the validity of the passport of the petitioner is confirmed by the Central Government. The duration of the validation will not exceed more than period of six months from the date of the decision that may be taken on the petitioner’s representation.
Cross Frontier Jurisdiction
In this, the Court may recognize jurisdiction over any conduct that applies outside its jurisdiction.
While taking any legal action of disputes between multiple parties and those other parties who will be examined, similarly in various jurisdiction in which proceedings to resolve the disputes may properly be commenced and the decisions from the outcomes will be made in such location.
Achille Lauro Incident
The US had originally planned to charge the terrorists with piracy under its Criminal Code of 1909 “whoever, on the high seas, commits a crime of piracy as defined by the law of nations, will be brought into or if found in the United States, shall be sentenced to imprisoned for life.”
This would be a problematic situation because the US government follows International Law, specially Law of the Seas, 1982 which states that if a ship is seized for any political purpose then it’s not a piracy. Due to the murder of the passengers and crew members of the ship, the US government can claim jurisdiction under passive personality principle and can accuse the terrorists under Crimes Act, 1970.
1994 Israel-Jordan Peace Treaty
Under which the Israel criminal laws are applicable for the Israelii nationals and the activities only involve them in the specified areas. Under Jordan’s sovereignty, the measures can be taken in the areas by Israel to enforce certain laws.
Principles of this Treaty
- Borders– The international boundary separates between Israel and Jordan which follows the Yarmouk River and the Gulf of Aqaba.
- Diplomatic Relations and Cooperation– parties were agreed to establish full diplomatic and consular relation and grant visas, seaports, etc. This agreement prohibits hostile information.
- Security and Defense- Each country promised to respect their sovereignty and territory and not to enter in other territories without any permission.
- Water- Israel and Jordan develop their water reservoirs and can help each other. And also for additional water, Israel agreed to help Jordan.
- Palestinian Refugees- Both countries agreed to help the refugees.
Multiple Jurisdictional Grounds
Tokyo Convention, 1963
It is also known as the convention on offences. Tokyo Convention can be applicable for the offences against the Penal Laws and Acts that risks the safety of the persons or property on board civilian aircraft while in flight and engaged in international air navigation.
This conference was for the purpose of further consideration, finalization, adoption and opening for the signature of Rome Draft. Sixty-one States and Five International Organizations were present at this conference.
Montreal Convention for the Suppression of Unlawful Seizure of aircrafts against the safety of civil aviation
It is a multilateral treaty by which States agree to prohibit and punish, who threatens the safety of civil aviation. It only applies exclusively to civilian aircrafts but does not apply to customs, law enforcement or military aircraft.
This convention criminalises the following behaviour:
- If an act is committed on a person who is onboard an aircraft and is likely to endanger the safety of the aircraft.
- Destroying or damaging such an aircraft in such a way which is likely to endanger the safety in flight.
- A device of substance placed or for causing destruction or damage to an aircraft.
- Any information which is known to be false, thereby endangering the safety of an aircraft in flight.
It lays the principle of aut dedere aut judicare that the party to the treaty must either-
- Prosecute a person who commits one offence.
- Send the individual to another State that requests extradition for the prosecution of the same crime.
What are the conflicts that arose in Jurisdiction?
- The jurisdiction of the State is parallel with the jurisdiction of another State. More than two-State can exercise the jurisdiction against the same person or on the same matter.
- Even the State having territorial jurisdiction cannot claim over the States having custody over the accused.
What are the Immunities from Jurisdiction?
It refers to the legal rules and principles which determine the condition from which the State can claim the exemption of sovereign immunity from the jurisdiction of another State.
This immunity is a creation of the customary international law which is derived from the principles of independence and equality of sovereign States.
The rules here are most accepted and uncontroversial rules of International Law. This helps in the maintenance and conduct of the relations between the States.
Diplomatic agents enjoy immunity from the criminal jurisdiction of the receiving State.
The consular officer is like a diplomatic agent who represents the State who will be receiving State.
Not granted the same degree of immunity from jurisdiction as a diplomatic agent.
However, the individual State plays a leading role in the worldwide organisation in spite of having multilateral agreements and centralized agreements. There must be friendly relations between the States to avoid conflicts on the territorial borders. Territorial jurisdiction and State jurisdiction plays an important role as it is very important to follow all the rules stipulated in different provisions.
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