State Jurisdiction | Public International Law - CLAT PG PDF Download

Introduction

State jurisdiction, as per International Law, refers to a State's ability to create, enforce, and interpret laws. It allows state courts to make binding decisions affecting parties in a case. Rooted in State sovereignty, it signifies a State's authority over people, property, and events within its territory.

Scope and Extent of State Jurisdiction

• State jurisdiction can extend beyond territorial boundaries over individuals and entities with a national connection. Principles guide a State's jurisdiction both within and outside its borders. 
• However, certain individuals, properties, and events within a State's territory may be exempt from its jurisdiction.

Types of State Jurisdiction

State jurisdiction is categorized into legislative, executive, and judicial types.

Legislative Jurisdiction

• Legislative jurisdiction refers to a State's authority to establish laws. While States have the power to make binding laws within their territory, certain circumstances allow for extraterritorial legislation. For instance, a State may impose taxes on individuals outside its territory if a significant connection exists, such as nationality or domicile.
• States must navigate the balance between legislative supremacy and adherence to International Law. If a State's laws conflict with International Law, it may be held liable for a breach. Additionally, excessive legislative actions concerning nationals abroad can also lead to liability under International Law.

Executive Jurisdiction

• Executive jurisdiction pertains to a State's ability to enforce laws and take actions within its territory. States, being sovereign and independent, generally lack the authority to perform functions on foreign soil without consent. Breaching another State's territorial sovereignty can lead to violations of International Law.

Judicial Jurisdiction

• Judicial jurisdiction involves a State's authority to adjudicate legal cases. States have the exclusive right to establish courts, determine their jurisdiction, and set procedural rules. However, they cannot impose changes on the functioning of foreign courts.
• Various principles guide a State's courts in claiming jurisdiction. In civil cases, principles may include the presence of the defendant in the State's territory, nationality, and domicile. In criminal cases, principles range from territorial to universality.

Principles of Jurisdiction

• The principles of jurisdiction are the foundational grounds on which a State claims its authority to exercise jurisdiction over individuals or entities. These principles vary in their application and significance in civil and criminal matters.
• The principles of jurisdiction are crucial in determining the legal authority of a State's courts to hear and decide cases, both in civil and criminal contexts. While civil jurisdiction is often claimed on broader grounds, criminal jurisdiction is more narrowly defined by specific principles.

The Territorial Principle

• The Territorial Principle is a fundamental concept in international law that asserts a State's primary jurisdiction over all events occurring within its territory, irrespective of the nationality of the individuals involved. This principle is rooted in the idea of State sovereignty and territorial integrity. It is the most dominant ground of jurisdiction recognized in International Law.
• The Territorial Principle extends a State's jurisdiction over its land, airspace, internal waters, territorial sea, national aircraft, and vessels. It covers not only crimes committed on the territory but also crimes that have effects within the territory. In cases of concurrent jurisdiction, subjective territorial jurisdiction may be exercised by the State where the crime was committed, while objective territorial jurisdiction may be exercised by the State where the crime had its effects.
• While territorial jurisdiction is primary, it is not exclusive. States can confer certain jurisdictional rights to other States within their national territory. Examples include treaties and agreements that allow foreign law enforcement to operate within another State's territory under specific conditions.

The Nationality Principle

• The Nationality Principle extends a State's jurisdiction to its nationals and their actions beyond the State's territory. This principle is based on the personal link between the State and its nationals, independent of their location. Criminal jurisdiction based on the nationality principle is widely accepted, with civil law countries using it extensively. Common law countries apply it primarily for major crimes like murder and treason.
• Under the Nationality Principle, a State can prosecute its nationals for crimes committed anywhere in the world (active nationality principle) and can claim jurisdiction for crimes committed by foreigners against their nationals abroad (passive nationality principle). The passive nationality principle is considered weaker and more controversial but has gained acceptance in cases involving terrorism and other internationally condemned crimes.

The Protective Principle

• The Protective Principle allows a State to exercise jurisdiction over an alien committing acts outside its territory that threaten the State's security and interests. While universally accepted, its practical extent is uncertain, and it is often applied in cases involving crimes against the State's sovereignty, such as treason, espionage, and economic crimes.
• This principle is commonly invoked in treaties with multiple jurisdictional grounds for specific crimes, such as the Hostage Convention and the Hague Aircraft Hijacking Convention.

Passive Personality Principle

• The Passive Personality Principle allows a State to exercise jurisdiction over crimes committed against its nationals, regardless of where the crime occurred. This principle is most commonly used in cases involving serious offenses such as murder, rape, and terrorism.
• This principle emphasizes the protection of the State's nationals and reflects the growing recognition of the need for States to safeguard their citizens' rights and interests, even when crimes occur outside their territorial jurisdiction.

The Universality Principle

• The Universality Principle allows a State to claim jurisdiction over certain crimes committed by any person, anywhere in the world, without requiring a connection to the territory, nationality, or special State interest. This principle was not widely accepted before World War II, except for crimes like piracy and slave trade.
• After World War II, universal jurisdiction gained recognition for crimes such as war crimes, crimes against peace, and crimes against humanity. In recent years, crimes like aircraft hijacking, human rights violations, and terrorism have also fallen under universal jurisdiction. Currently, every State has jurisdiction over international crimes regardless of where they are committed.

United States of America v Noriega

• General Manuel Noriega was indicted on multiple counts of engaging in a criminal enterprise violating U.S. racketeering and drug laws. The allegations included his involvement in an international conspiracy to import cocaine and materials used in cocaine production into the United States. Noriega was also accused of protecting shipments of cocaine from Colombia through Panama to the U.S. for his personal profit.
• Noriega challenged the case against him on several grounds:
• The District Court of Florida lacked jurisdiction.
• Sovereign immunity prevented the exercise of jurisdiction.
• He was captured and brought before the court as a result of an illegal military invasion.
• A violation of international treaties had occurred.
• The court determined that it had extra-territorial jurisdiction based on precedents involving foreigners conspiring or intending to import narcotics into the United States. The charges against Noriega were deemed to have extra-territorial effects, justifying the court's jurisdiction. The protective principle also supported the exercise of jurisdiction over acts threatening the State's existence with potentially harmful effects.
• Regarding immunity, recent international practices differentiate between private and public acts entitled to immunity. Public officials are granted immunity for acts performed in their official capacity. Noriega's acts, being for personal gain, did not qualify for immunity. Head of state immunity applies when the individual is recognized as the head of state by the immunizing State. In Noriega's case, he was not recognized as such by either the Panamanian constitution or the United States.

Limits in the Exercise of Jurisdiction. (Exemption from state jurisdiction)

• Customary international law dictates that a State should refrain from exercising its jurisdiction in cases where doing so would be unreasonable. The assessment of reasonability is based on various factors, including the connection of the activity to the regulating State, the foreseeable effects within the State, and the extent to which the regulation aligns with international practices.

Immunity of the Sovereign

• Immunity of the sovereign in international law refers to the protection a foreign state enjoys from the jurisdiction of the forum state. This immunity is grounded in the need to preserve the dignity of foreign nations, their organs, and representatives, allowing them to carry out their missions without constraint.
• Sovereign immunity can operate in two ways:
• As a bar to jurisdiction, where the forum state would exercise jurisdiction but for the immunity.
• By rendering the subject matter non-justifiable or inadmissible, meaning the jurisdiction never existed. For example, in Buck V. A.-G, the Court of Appeal declined to determine the validity of the Constitution of Sierra Leone due to the non-existence of jurisdiction, a consequence of sovereign immunity.

Immunity is based on two principles:

• Par in parem non habet jurisdictionem: Legal entities of equal standing cannot have disputes settled in the courts of one of them. This principle highlights immunity based on the status of the defendant, known as immunity atione personae.
• Non-intervention in the internal affairs of other states: The nature of the subject matter leads a municipal court to determine that it has no jurisdiction. This type of immunity affects the local courts' competence concerning the subject matter, known as immunity ratione materiae.

The Extent of Sovereign Immunity

• In the realm of state activity within the commercial sector, courts in countries like Belgium and Italy have made a distinction between acts of government (jure imperii) and acts of a commercial nature (jure gestionis). Immunity is granted concerning the former but not the latter. This principle is known as restrictive immunity.
• Restrictive immunity can be applied in several ways:
• Differentiating between jure imperii and jure gestionis: Municipal courts will distinguish based on whether a key transaction has been accomplished through a private law relationship, such as a contract. For instance, a contract of employment where the employee is recruited to perform specific functions in the exercise of governmental authority may be incorrectly classified as jure gestionis.
• Municipal legislation: Under this method, immunity is generally provided with exceptions outlined. This approach has been adopted by the United Kingdom.
• Treaty: Through treaties like the United Nations Convention on Jurisdictional Immunities of States and their Property, 2004, which has been ratified by 32 states as of October 28, 2013. Kenya is not a signatory to this treaty. The convention generally denies foreign states the right to invoke immunity concerning commercial transactions, contracts of employment, pecuniary compensation for personal injuries, and damage to property. However, it provides for exceptions, such as by agreement.
• Waiver: Immunity can be waived either expressly or by conduct. Examples of waivers include prior contracts, treaties, diplomatic communication, and actual submission to the proceedings of the local court.
• The waiver of immunity from the jurisdiction of the forum does not necessarily imply a waiver of immunity to execution. Article 19 of the United Nations Convention on Jurisdictional Immunities of States and their Property, 2004, reflects this position. Under this article, property used or intended for government non-commercial purposes by the state cannot be attached. Article 21 outlines categories of properties that cannot be subject to execution, including bank accounts used or intended for diplomatic missions or consular posts.