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Theory of Extraterritoriality of States and Jurisdiction In International law

There are many provisions laid down in international law in relation with the state territorial jurisdiction and extraterritoriality principle. Keeping in mind all the contentions raised there are established laws, agreements, treaties and conventions on the basis of which these jurisdiction principles of sovereign states are based upon. There is a need to study all these topics related to jurisdiction principle so that the sovereignty of states can't be infringed or harmed whether it is willful or not. We come to know about so many things under international law about this present topic like the actual definition of state jurisdiction, the concept of extraterritoriality and more similar things.

So many questions came into our mind about this that:
  • To what extent the state can exercise its jurisdiction?
  • whether any person is liable for the acts committed by him with regard to any other country in which he doesn't reside?
  • Can someone be punished for an act done by him abroad to the territory of his state?

The author in the present article has tried to take a glimpse over almost all the concepts which are related to the territoriality of state and the jurisdiction principles and tried to explain that how different nation states apply their laws by extraterritorial operation. All the questions have been discussed in detail with the case laws. The definition of state territory is defined here, all the principles are discussed here in detail in order to give a detailed explanation of this concept that can be understood very easily through this article.

Introduction:

Jurisdiction Meaning:

Jurisdiction is an authority given to a body to cope up with matters related to law with some inference.

Sovereignty and supremacy have a link with the term jurisdiction in public international law. State gets sovereign independence by getting jurisdiction in something. States further pass on their independence globally to the states in which they acquire legal interest.

State Territory:
It is one of the basic and essential condition for an area to have some defined territory of it in order to be called as a state. There cannot be a state without a defined territory of it. The area or surface on which a state leads to or tends to exercise its own sovereign or supreme authority/power is termed as state territory.

A state territory basically comprises of its surface underneath subsoil, land territory, national water space, national air space, territorial waters over the territory.
According to Kelsen, “when international law allows the states to act in a particularly defined space than that is to be considered as the territory of state”. In that space the state can perform its acts legally without any interference.

According to Oppenheim's definition of state territory, “it is a part of globe which is devoted and subjected to the state's sovereignty”. A strolling group of people whether it is totally organised or has a government it will not be a state until it gets its own territory.

State territory is absolutely an object of international law, as it tells and recognises that which supreme authority must be exercised according to international law.

Objectives:
  1. To study the meaning of jurisdiction and state territory in public international law.
  2. To study the concept of territorial jurisdiction and sovereignty.
  3. To study the meaning of extra territoriality.
  4. To study the relation between state and extra territorial jurisdiction.
  5. To study various principles and case laws related to this.

Territorial Jurisdiction or Sovereignty of States:

Territorial jurisdiction of states is derived from the sovereignty of states and consists of many features. When a state performs the authority over the land, population, property and primary events happening in the state territory.

State has the power and authority to form and enforce the laws made by it.

Territorial jurisdiction of states comprises of:

  • Land,
  • Territory,
  • Territorial sea,
  • Internal water,
  • National aircrafts, and
  • National vessel.
Territorial jurisdiction with respect to laws and commission of crime means that, it consists of not only the crimes that are committed within its territory or boundary but, the crimes which are committed outside its territory and have direct effect on the state itself.

UK vs. Norway (North Atlantic Fisheries Case) [i]:

In this case, Norway's claim for sea territory and interference in fishing vessel was challenged by the UK and it was also requested by it to ICJ to determine extension of Norway's territorial claim to sea and to provide some compensation as it was against the International law.

The Court held that claim to the waters regard to the part of the sea space by Norway is completely consistent with International law.

Territorial sovereignty is something where it is essential for a state to have a defined territory and state can exercise its authority and make its own laws without any foreign interference. Territorial sovereignty sets a rule which says that there is a specific territory and state only have the exclusive power to act over it and apply its jurisdiction on people and land included in the territory without approaching other states.

Thus, we can say that the jurisdiction of a state over the boundary or territory is termed as territorial sovereignty. And this is the reason why any state can't encroach the power of any other state by exercising its functions there, two states are separated by these criteria.

Nature: The nature of jurisdiction of state over the territory tells us that how independent or sovereign is actually the state. The more territorial sovereignty the state has the more independent it would become.

State must have complete and full legislation and legal control over the territory without any external disturbances.

State must have territorial integrity and political independence to become complete sovereign state. State should also ensure that it must be rendering its services and imposing its supreme power without harming the rights of other states.

All this should not be mixed up with the term Extra Territorial Jurisdiction of state because it is a very limited expression of authority of state or, say a part of state authority which is described under modern international law which we'll discuss later on.

Meaning of Extraterritoriality:

Extraterritoriality in public international law is also known as Ex-territoriality. Both the modern and traditional international law accept this concept. It is a diplomatic immunity which is basically enjoyed by the states which are out of its territory and organisations or bodies which are established internationally. This immunity is enjoyed by administrators as resident of the state.

Since the concept is widely hold forth to the entities which are present abroad, like the passage troops, vessels, legation etc. it helps these agencies to get rid of complex local process of judiciary which is under the enclave of foreign states. It also exempts such bodies from police intrusion, and other estimates which put check on them. This is a kind of fiction according to this the above mentioned agencies are considered to not present within the state enclave(territory) where they are literally present.

The doctrine of Ex-territoriality was first propounded by French scholar Pierre Ayraut which was later adopted by many classic writers like Hugo, Grotius, Pufendorf etc.

The basic idea and scope behind the doctrine of ex-territoriality is to protect the administrators and certain bodies from the local laws of alien state if that body visits that foreign state than no local civil or criminal law of the state should be performed over that body. [ii]

Scope, Extent and Types of State Jurisdiction:

Scope:
The main aim behind this concept is to give protection and exclusive resilience to the person and the property which resides and are established under the region of state itself.

Extent:
As we have discussed earlier the authority of state extends to its whole territory but, it also may extend beyond its recognized territory to those people and property and the things which have some connection or link to it. The state can apply or impose its jurisdiction within or beyond its territory but it depends upon some grounds and principles.

Types:
There are mainly three types of state jurisdiction, which are discussed below:
  1. Legislative jurisdiction:

    In simple words this is the power of state to make and prescribe laws for its territory and it pursue that sovereignty to bind each and every one within its territory by such laws. Our constitution has recognized such bodies which have power to make laws. We often read and see that a legislation exercises within its territory however only to some extent it also extends to area of alien state, like under International law, state imposes tax on such person who don't reside within a particular territory but somehow have some link with the state. If state makes any law which is contrary to the international law than it can be challenged on that basis, and this would be considered as breach of International law.

  2. Executive jurisdiction:

    It is the power of a state through which laws are enforced in the territory. As we know that each and every state is independent and have their own supremacy over their territory hence, they don't possess any authority to enforce their laws over other state's territory. There is no any authority or power given to any state through which it can infringe the sovereignty of any other territory. There is a law or say rule through which any state can't make or impose law on other state's territory without getting their consent and if it would be done by any other means than would be considered as breach of International law.

  3. Judicial jurisdiction:

    It means the courts of the particular state has power to try the cases related to law. Every state has power to make and establish courts and assign them their jurisdiction and also prescribe the procedure for them which to be followed. And like any other form of jurisdiction the state also can't create any court or assign jurisdiction to it which may abridge the operation of foreign courts. There are several principles based on which jurisdiction of any state can be claimed. E.g. In matters related to crime, the jurisdiction ranges from territorial principle to universality principle. [iii]

State and Extraterritorial Jurisdiction:

There are several rules in international law which show that a state can't possess the jurisdiction over the other states. If state is made a party to proceedings of alien states than that will be considered as invalid. There are many cases in which different contentions have been given pertaining to it. It was observed in one of the instances that a supreme state gets resilience from other sovereign states according to the proposition of international law.

This extraterritoriality of the states under international law possess a deep connection with sovereign freedom and completely based on this rule. We can see in cases like- Duff development company vs. Kelantan government [iv] and Thai- Europe Tapioca Services Ltd. V. Government of Pakistan [v] in these cases it is clearly discussed that the extra territorial aspect of sates is interlinked with the absolute sovereign immunity and it extends to every aspect except when it is connected with trade and property which are not dedicated to public use. So, by this we can say that there must be some connection of extraterritoriality of states with the public of both the states and must do some effect on the elements of both states.

Principles of Territorial Jurisdiction:

There are mainly five principles on which the civil and criminal matters of state jurisdiction depend upon:
  1. Territorial principle:

    State sovereignty depends upon this principle, according to which a state has an exclusive control over its territory, people, and property included in its territory and all other foreign states must respect this sovereignty of a state. The primary jurisdiction over the territory is exercised by the state only irrespective of the nationality of the person. This principle is considered as the primary ground of dominion in international law.

    The internal affairs of a state must not be infringed by the unnecessary intrusion of other foreign states. A state deals with matters which are under the enclave of state and also the matters which are somehow connected with the state in any condition. This condition leads towards the operation of concurrent jurisdiction under which there are two parts named as- Subjective and Objective Territorial Jurisdiction.

    According to it the state in which crime takes place or the crime has committed exercises the subjective territorial jurisdiction and, the state to which this commission of crime affected exercises objective territorial jurisdiction. Although there are some conventions and treaties due to which the states get power to confer upon other states and exercise jurisdiction in those other states to some extent. E.g. Israel-Jordan Peace Treaty, France-UK Protocol.

  2. Nationality principle:

    According to this principle a state can exercise its jurisdiction to its people who are the nationals of the state and to the actions which are carried out by these nationals beyond the state territory. This relationship is completely free from the criteria of location. Criminal jurisdiction is certainly based on this principle, civil law jurisdiction extensively uses this and as we see the common law jurisdiction use this principle for major crimes like murder.

    On the ground of active nationality principle any state can prosecute and punish any such person who is the national of that state and has committed the crime in any other state. On the ground of passive nationality principle any state can claim jurisdiction for those crimes which are committed against the nationals of that state by the foreign nationals (aliens) abroad.

    The passive nationality principle has been in controversy for so many years and not as much acceptable as the prior one because it somehow created a hate between the states but now it is being considered by the cosmopolitan agencies for the crimes like terrorism and other international crimes.

  3. Universality principle:

    According to it a state can claim jurisdiction over the crimes which are committed by any person in any country universally. State does not need to have any special connection with the person for claiming jurisdiction.

    But the scenario was little different before the second world war, at that time this principle was considered to be contrary to international laws but after second world war this principle was recognized completely in order to protect states from those crimes which were intercontinental and which were committed against a whole community by violating the international law, e.g. crimes against humanity, crimes related to war, hijacking of aircrafts, terrorism etc. when all these kind of crimes came into scenario the states are provided with this principle and were made free to exercise power in the other states where crime takes place.

  4. Protective principle:

    According to this principle a jurisdiction can be performed over the prejudicial act of person (alien) by whom the crime is committed outside the state's enclave but is completely against the interest and security of a state. This particularly protects the vital interest of the nation state in which the crime committed by alien is serious but no punishment for that is prescribed in the nation state where he resides and also the extradition is refused in that country.

    Sometimes this principle is easily abused and undermined by the people just because it is narrower and that is why it is treated as secondary to the territorial and nationality principle. Use of this principle takes place when something is done abroad and is against the sovereign power of the state, e.g. forging of currency, violation of immigration laws etc.

  5. Passive personality principle:

    According to this principle, where the victim resides or the state of which victim is a national than the accused will be punished and prosecuted according to that state and according to their laws.[vi]

Important Case Laws:
  1. SS Lotus Case [vii]:

    In the present case France challenged the validity of arrest of French representative of ship, by turkey, as he was representing that ship when it got crashed with ship of turkey. This arrest was in violation of International law according to France.

    Then the court held that, according to treaty (Treaty of Lausanne) turkey is authorized to arrest that officer and since a supreme nation state's jurisdiction was challenged then the load of proving it is over plaintiff itself. This case is always seen as a high state of positivism. it can be said after this that international law provides independence to nation states to perform in any aspect.

  2. Mubarak Ali Ahmad vs. State of Bombay [viii]:

    In the present case the appellant Mubarak Ali was a resident of Pakistan and he made a misrepresentation against the defendant in Bombay with regard to some rice business in order to receive amount by such misrepresentation keeping in mind that since he is a national of Pakistan and doing all this from Pakistan without entering in India so due to all this he can't be held liable for it under IPC. But court held him liable U/S 420 of IPC even if he was not there in India personally at that time but the whole crime was committed in Bombay itself hence his conviction was not invalid according to the territorial jurisdiction.

  3. Director of Public Prosecution vs. DOOT [ix]:

    In this case the defendant was held liable for ship in harmful drugs in UK. He contended that he must not be held liable as the crime is committed in alien state. It was held by the court that no matter in which nation state the crime was committed the defendant were foreigners and were up to the task of importing the harmful drugs in UK.

    Here international components were there because the crime was carried out abroad and the criminals were aliens but as per one of the provisions of nation state's jurisdiction under international law, they can be held liable in a state for a crime which is committed outside the state by the aliens. [x]

Critical Analysis:
After all this detailed discussion about the theory of International law, state jurisdiction the various principles and extent of ex-territoriality we can now say that it is a very major part for laws of any country. Every country's laws must be depended on it and include some part of it. The concept of territoriality helped us a lot in many ways till now, there are so many states which apply and use this majorly and this concept somehow helps them to minimize the crime rates happening worldwide.

As we have seen that through protective principle and other principles the states can keep check on the crime which happen out of their territory, this is necessary at this time because whatever is happening around may also affects the purpose of a certain state.

The principle of ex-territoriality and territorial jurisdiction are very important part of international law. However, there are some states which have distinct laws on this very concept but overall, this only helps in the welfare of states and also helps to create good correlation among the states worldwide. All the five type of principle help the states to use international law with great wisdom and keep check upon the crimes that happen in their territory as well as worldwide.

This concept also helps us to understand that the ability of a nation state is not extended to its own territory and people only but also to the territories to which theses states has good relation with. The public international laws and its concepts helps to maintain the integrity, peace and harmony between the states worldwide.

Conclusion:
A leading role is being played by the sovereign states worldwide, not matter they have multilateral and centralized agreement, various treaties and conventions among them. To avoid the unnecessary chaos and conflicts over there borders on the territory the states must have friendly relationship with each other.

The International laws and concept of state and territorial jurisdiction helps a lot and play a major role in resolving these kinds of disputes among sovereign states and all the states are somehow bound to follow the rules laid down by the various provisions of international laws in order to maintain the peace among them.

End-Notes:
  1. [1951] ICJ Rep.116
  2. Editors of Britannica, Extraterritoriality (international law), Britannica, https://www.britannica.com/topic/extraterritoriality, by editors of Britannica.
  3. Chege kibathi co. advocates, 14 Dec, 2013, State Jurisdiction in Public International Law, CK Advocates, https://www.ckadvocates.co.ke/2013/12/14/state-jurisdiction-public-international-law/
  4. [1924] A.C 797
  5. [1975] 1 W.L.R 1485
  6. Supra Note 3
  7. [1927] Ser. A. No. 10
  8. [1957] AIR, SC 857
  9. [1973] AC 807
  10. Arijit Mishra, Jurisdiction in International Law: details you must know, ipleaders, https://blog.ipleaders.in/jurisdiction-in-international-law-details-you-must-know/
Award Winning Article Is Written By: Anshika Sharma, IV Year-VII Semester 2020-2021 - Raffles University Neemrana

Awarded certificate of Excellence
Authentication No: SP31156023730-16-920

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