| Introduction | jurisprudence |
| relevant Case laws | Abu Salem vs state of Maharashtra Arrest Warrant (Congo vs Belgium) Arrest and Restroration of Savarkar |
| present problem | question related |
| conclusion | decision as per our reasoning |
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.
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.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 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.
Criminal Jurisdiction
Criminal jurisdiction is the place where the forces of the Court are depicted in managing a situation where an individual is blamed for an offense. Criminal Jurisdiction is utilized in numerous laws like Constitutional Law and Public International Law.
The three particular circumstances where just the denounced individual can record a suit are:
- To control the connection between States, or between one State and another;
- To control the connection between the Federal Courts and Domestic Courts;
- Just where he has submitted the offense and in no other State. Additionally, the law of that State ought to be a codified law.
Territorial Jurisdiction of the States
It is gotten from State power and comprises a few highlights. It is the authority of the State over people, property and occasions which are fundamentally inside its domains.
(Anglo Norwegian Fisheries Case) For this situation, the UK mentioned the International Court of Justice (ICJ) to decide how far Norway’s territorial case stretched out to the ocean and to give some pay since Norway meddled in the fishing vessel of the UK and furthermore guaranteed that Norway’s case to such degree was against International Law.
The Court held that Norway’s case to the waters was reliable with the International law in regards to the piece of the ocean space.
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.
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)
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.
Territorial Principle
It is an essential attribute of the sovereignty, that States should possess jurisdiction over all
property, persons, acts or events occurring within their territory.
Every State has jurisdiction over crimes which are committed in its own territory, irrespective of
the fact whether they are committed by nationals of that State or the foreigners.
Sometimes, a criminal act is completed in two States. It may start in one State and is completed in
another State. In such a case, both the States have jurisdiction. The State where the act commenced
has jurisdiction under the subjective territorial principle, and the State where the act is completed
has jurisdiction under the objective territorial principle.
For example, if a person stands near to the border between State A and State B and fires a gun
from State A and injure a person in State B, both the States will have jurisdiction in such a case.
State A shall have subjective territorial principle, whereas State B shall have objective territorial
principle.
The objective territorial principle is exercised by State on the basis of effect doctrine. It is
based on the principle that the injurious effect has been brought on the other State, even though
that act might not have been committed on the territory of such State.
Thus, under subjective territorial principle, States exercise jurisdiction to prosecute and punish
crimes which has commenced in their territory, but was completed in the territory of another State.
Sometimes, conspiracy is made in one State and the criminal act is committed in another State. In
such a situation, both the States may exercise their jurisdiction. However, some States may not be
willing to exercise their jurisdiction on the ground that only ancillary acts and not the principal act
was committed in their territories. But in international law, there is no bar on them to exercise their
jurisdiction over such acts.
Extraditions:
Extradition is the handing over of an alleged offender or convicted criminal who has escaped
before completing his prison term by one State to another. There is no international customary law
which obligates a State to extradite a person who is present on its territory and alleged to have
committed a crime on the territory of another State. Such a person may take refuge in a State which
has no jurisdiction to try him, or in a State which is unable or unwilling to try him because all the
evidences and witnesses are abroad.
To resolve this problem, international law has evolved the practice of extradition. Individuals are
extradited by one State to another, in order that they may be tried in the latter State for offences
against its laws. Extradition also includes the surrender of convicted criminals who have escaped
before completing their punishment.
The international law does not impose any duty on States to extradite a person in the absence of a
treaty. Extradition of an offender is to be made by a State which is a party to a multilateral treaty
which imposes obligations on the parties to make such extradition. Article VII of the Convention
on the Prevention and Punishment of the Crime of Genocide, 1948 provides that the acts of (a)
genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit
genocide; (d) attempt to commit genocide; and (e) complicity in genocide are not to be
considered as political crimes for the purpose of extradition. The Contracting Parties pledge
themselves in such cases to grant extradition in accordance with their laws and treaties in force.
Relevant Case Laws:
Arrest Warrant (Democratic Republic of the Congo v Belgium), (2002) ICJ Rep
In the Arrest Warrant case, the ICJ emphasised that the immunity from jurisdiction enjoyed by the Minister for Foreign Affairs of Congo did not mean that they enjoyed impunity in respect of any crimes they might have committed, irrespective of their gravity. Immunity from criminal jurisdiction and individual criminal responsibility were quite separate concepts. While jurisdictional immunity was procedural in nature, criminal responsibility was a question of substantive law. Jurisdictional immunity could bar prosecution for a certain period or for certain offences; it could not exonerate the person to whom it applied from all criminal responsibility. The ICJ also stated that in customary international law, the immunities accorded to the Ministers were not granted for their personal benefits, but to ensure the effective performance of their functions on behalf of their respective States. The immunity and inviolability protected the individual concerned against any act of authority of another State which would have hindered him in the performance of his duties. In this respect, no distinction could be drawn between acts performed by a Minister of Foreign Affairs in an “official capacity” and those claimed to have been performed in a “private capacity”.
Abu Salem v. State of Maharashtra
facts:
Abu Salem, along with his girl-friend Monica Bedi, was extradited to India in 2005 from Portugal, after the Indian government gave a solemn assurance before the Portuguese court that if convicted, they would not be sentenced to death. The assurance was given since European law prohibits extradition of any accused to such a country where capital punishment is in vogue.
Abu Salem was accused of Mumbai blasts of 1993 and was trailed by the CBI from the United
States to Portugal. As there was no extradition treaty between India and Portugal, political
considerations played a major role in extradition.
Indian government sought his extradition under the United Nations Convention on Suppression
of Terrorism of 2000 under which all member-nations have to help each other in the war against
terrorism. Portugal and India are both signatories to the Convention.
issue:
Whether the Indian courts have jurisdiction to try Abu Salem for offences not mentioned in the ex-tradition decree?Whether the Rule of Speciality has been violated?
judgement:
The term ‘extradition’ denotes the process whereby under a concluded treaty one State surrenders to any other State at its request, a person accused or convicted of a criminal offence committed against the laws of the requesting State, such requesting State being competent to try the alleged offender.
Though extradition is granted in implementation of the international commitment of the State, the procedure to be followed by the courts in deciding, whether extradition should be granted and on what terms, is determined by the municipal law of the land.
Extradition is founded on the broad principle that it is in the interest of civilized communities that criminals should not go unpunished and on that account it is recognized as a part of the comity of nations that one State should ordinarily afford to another State assistance towards bringing offenders to justice.
The doctrine of speciality is recognised in section 21 of the Indian Extradition Act of 1962. The speciality doctrine is a universally recognised principle of international law and partakes of doctrines of both double criminality and reciprocity.
Extradition is different from deportation by which competent State authorities order a person to leave a country and prevent him from returning to the same territory. Thus, deportation basically is a non-consensual exercise whereas extradition is based on a consensual treaty obligation between the requesting State and the requested State. Indeed, a country does not need a treaty to decide that a fugitive found within its jurisdiction should be extradited to another country that requests extradition. It can do so even by exercise of executive discretion.
Arrest and Restoration of Savarkar (France/Great Britain)
facts:
Savarkar escaped from the British ship bringing him to India, was apprehended by the French Police at the port of Marcelese and handed over to the captain of the British ship. The French Government demanded his return, on the ground that he was wrongly handed over without the rules of extradition being strictly observed.
judgement:
The Permanent Court of Arbitration held that though international law does not impose any obligation to extradite, if extradited, even in an irregular manner, the receiving State is not bound to return the fugitive.The Tribunal concluded that despite the irregularity committed in the arrest of Mr. Savarkar, such irregularity did not result in any obligation on the British government to restore Mr. Savarkar to the French government.
Present Problem:
Explain jurisdiction according to protective principles. X, an Indian politician, to avoid arrest by Lokayukta Authorities takes refuge in a merchant ship of State Y which is stationed in territorial sea of India. Can Indian Lokayukta Authorities arrest him?
Answer: Yes, Indian Lokayukta authorities can arrest X while he is on the merchant ship of State Y stationed in the territorial sea of India. The combination of territorial jurisdiction and the protective principle provides a strong legal basis for such an action.
