Jurisdiction in International Law: details you must know

Introduction
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 states 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 that 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:

1. land,
2. national airspace,
3. internal water,
4. territorial sea,
5. national aircraft,
6. 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. 

Case law

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 traveled 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 recognize him as a
citizen and as a 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
Criminal jurisdiction is where the powers of the Court are described in dealing with a case where a person is
accused of offense. 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:

1. To control the relation between States, or between one State and another;
2. To control the relationship between the Federal Courts and Domestic Courts;
3. Only where he has committed the offence and not in any other State. Also, the law of that State
should be a codified law.

Case 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

Territorial 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.

Nationality Jurisdiction
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:

Active Nationality

 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.

Passive Nationality

 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.

Universality Jurisdiction
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.

Protective Principle
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-

1. Prosecute a person who commits one offence.

2. 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?

Sovereign Immunity
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.

Diplomatic Immunity
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.

Consular Immunity
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.
Conclusion
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.