STATE JURISDICTION IN INTERNATIONAL LAW

Introduction:

Jurisdiction concerns the power of the state under International law to regulate or otherwise impact upon people, property and circumstances and reflects the basic principles of state sovereignty, equality of states and non-interference in domestic affairs.¹

• Jurisdiction is a central feature of state sovereignty, for it is an exercise of authority which may alter or create or terminate legal relationships and obligations. It may be achieved by means of legislative, executive or judicial action.

As pointed by D.J Harris, “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 and the power to enforce them (enforcement jurisdiction).

• In India for instance the Parliament passes binding statutes, the courts make binding decisions and the administrative machinery of government has the power and jurisdiction (or legal authority) to enforce the rules of law.
  • It is particularly necessary to distinguish between the capacity to make law, whether by legislative or executive or judicial action (prescriptive jurisdiction or the jurisdiction to prescribe) and the capacity to ensure compliance with such law whether by executive action or through the courts(enforcement jurisdiction or the jurisdiction to enforce).
  • Jurisdiction although primarily territorial, may be based on other grounds for example nationality, while enforcement is restricted by territorial factors.

To give an instance, if a man kills somebody in India and then manages to reach Dubai, the Indian Courts have jurisdiction to try him, but they cannot enforce it by sending officers to Dubai to apprehend him. They must apply to Dubai authorities for his arrest and dispatch to India. If, on the other hand, the murderer remains in India then he be arrested and tried there, even if it becomes apparent that he is a Chinese national.

• Thus while prescriptive jurisdiction (or the competence to make law) may be exercised as regards events happening within the territorial limits irrespective of whether or not the actors are nationals, and may be founded on nationality as in the case of an Indian subject suspected of murder committed abroad who may be tried for the offence in India(If he is found in India, of course), enforcement jurisdiction is another matter entirely and is essentially restricted to the presence of the suspect in the territorial limits.
  • Thus while jurisdiction is closely linked with territory it is not exclusively so tied. Many states have jurisdiction to try offences that have taken place outside their territory, and in addition certain persons, property and situations are immune from territorial jurisdiction in spite of being situated or taking place there.
  • Diplomats for example, have extensive immunity from the laws of the country in which they are working and various sovereign acts by states may not be questioned or overturned in the courts of a foreign country.

Criminal Jurisdiction

International law permits states to exercise jurisdiction (whether by way of legislation, judicial activity or enforcement) upon a number of grounds. There is no obligation to exercise jurisdiction on all or any particular one, of these grounds. This would be a matter for the domestic system to decide.

• The importance of these jurisdictional principles is that they are accepted by the international community as being consistent with international law.

Territorial Jurisdiction

The territorial basis for the exercise of jurisdiction reflects one aspect of the sovereignty exercisable by a state in its territorial home, and is the indispensable foundation for the application of the series of legal rights that a state possesses.

• Thus all crimes alleged to have been committed within the territorial jurisdiction of a state may come before the municipal courts and the accused if convicted may be sentenced and punished.
• The principal ground for the exercise of criminal jurisdiction is, therefore, territoriality.

1.    The Nationality Principle:

Since every state possesses sovereignty and jurisdictional powers and since every state must consist of a collection of individual human beings, it is essential that a link between the two be legally established.

The link connecting the state and its people in its territory is provided by the concept of nationality.

• Common law countries however, tend to restrict the crimes over which they will exercise jurisdiction over national abroad to a very serious crimes.

2.    The protective principle

• This principle provides that states may exercise jurisdiction over aliens who have committed an act abroad which is deemed prejudicial to the security of the particular state concerned.
  • The term ‘protective principle’ is generally used to denote the principle of international criminal jurisdiction permitting a State to grant extraterritorial effect to legislation criminalizing conduct damaging to national security or other central State interests (Criminal Jurisdiction of States under International Law; Extraterritoriality)²

• 3. The Universality Principle: Under this principle, each and every state has jurisdiction to try particular offences. The basis for this is that the crimes involved are regarded as particularly offensive to the international community as a whole.
  • There are two categories that clearly belong to the sphere of universal jurisdiction, which has been defined as the competence of the state to prosecute alleged offenders and to punish them if convicted, irrespective of the place of commission of the crime and regardless of any link of active or passive nationality or other grounds of jurisdiction recognised by international law. These are piracy and war crimes.
• 4. Extra territorial Jurisdiction of State
• Meaning: It is the situation when a state extends its legal power beyond its territorial boundaries.
• The law relating to extra-territorial operation of laws has been discussed and clarified in K.T.M.S. Abdul Cader and others v UOI, AIR 1977 by the Madras High Court.
  • The High court observed that it is well established that the power of parliament to make a law in relation to the topic entrusted to it is plenary, that a law passed by Parliament under Article 245 cannot be invalidated merely on the ground that 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.
  • The H.C. further observed that the word, extra-territorial operation are used normally in two different senses as connoting firstly, laws in respect of acts and events which take place inside the state but have operation outside, and secondly, laws with reference to the national of a state in respect of their acts outside.
• 5. Extradition, Deportation and Asylum
• (i) Extradition: The practice of extradition enables one state to hand over to another state suspected or convicted criminals
• (ii) The practice of extradition enables one state to hand over to another state suspected or convicted criminals who have fled to the territory of former. It is based upon bilateral treaty law and does not exist as an obligation upon states in customary law.

• (iii) It is usual to derive from existing treaties on the subject certain general principles, for example that of double criminality, i.e. that the crime involved should be a crime in both states concerned, and that of speciality i.e.  a person surrendered may be tried and punished only for the offence for which extradition had been sought and granted.

Case law: Abu Salem Abdul Qayoom Ansari v. State of Maharashtra (2010)CRIMINAL APPEAL NOS. 1142-1143 OF 2007ANDWRIT PETITION (CRIMINAL) NO. 171 OF 2006

The appellant was one of the accused in the serial bomb blasts in Bombay in 1993. He was subsequently extradited from Portugal on the ground that he was involved in crimes under the International Convention for the Suppression of Terrorist bombing. Although India had no extradition treaty with Portugal, it issued a notification under Section 3(i) Extradition Act 1962 for the appellant’s extradition.

• It was further assured that the appellant would not be tried for any offence other than those for which extradition was sought, that the appellant would not be further extradited and that he would not be awarded death penalty or life imprisonment.
  • Finally he was extradited owing to India’s request based on the principle of reciprocity.
  • However, he was also tried for the offences under the TADA act, the explosives substance act and the Arms act, punishment for which was life imprisonment or for 20 years or less. Subsequently he objected that his extradition was illegal.
  • The supreme court, however dismissed the appeal and held that the appellant’s assumption that he had been extradited under the International Convention for suppression of Terrorist bombing, cannot be sustained.

The Savarkar case: FRANCE/BRITIAN 1911

• This case involved extradition proceedings between France and Britian.
  • Savarkar was an Indian revolutionary. On 8 july 1910 he was being transported to India for the purpose of his trial on a charge of his treason and abetment of murder.
  • During his voyage, he dramatically escaped by jumping into the sea. Although the guards noticed him and opened fire, he dived and swimmed under a shower of bullets until he reached the port.
  • He was however, apprehended by the French police.
  • French police wrongly handed him over to captain of the British ship
  • Thereafter, French government requested British government to return Savarkar on the ground that the rules concerning extradition were not observed as French police handed over Savarkar to Britain without extradition proceedings.
  • In fact, France demanded that Great Britain should ask for his extradition in a formal way in conformity with international law.
  • Great Britian refused.
  • The matter was referred to PERMANENT COURT of arbitration at the Hague.
  • In its award the court admitted that an irregularity had been committed by handing over Savarkar to Britian.
  • However, the court decided in favour of GREAT Britain by holding that international law does not impose any obligation upon the state whereby on the above ground the criminal may be returned.

6. ASYLUM

Asylum means the protection or refuge granted by a State on its territory or premises under its control to a person who comes to seek such protection or refuge.

• Obviously Asylum is linked with extradition in as much as asylum stops where extradition or rendition begins. The purpose of Asylum is to accord protection to a person and to bring him under the jurisdiction of the granting state whereas extradition aims at surrendering or returning the offender to the state where he is alleged to have committed the offence. Therefore Asylum stops when the granting state decides to extradite the offender. Therefore the concept of asylum and extradition are opposite to each other.

Right of Asylum

• The offender has no right of asylum. However, on this issue, certain international instruments are worth examining. Article 14 of the UDHR recognises the right of everyone to seek and enjoy in other countries asylum from prosecution.
  • It being a declaration and not a treaty does not bind the states.
  • In 1967 UNGA adopted a declaration on territorial asylum.

Kinds of Asylum

1. Territorial ASYLUM: Territorial asylum is granted by a state on its territory. Territorial asylum is an attribute of the territorial sovereignty of the granting state.
2. Extra territorial or diplomatic asylum: It is the refuge granted to offenders by a state within the precincts of its embassies or legations abroad. In the Asylum case involving Colombia and Peru,icj report 1950 ICJ has drawn a distinction between territorial asylum and diplomatic asylum