STATE JURISDICTION

NATURE OF JURISDICTION

Jurisdiction is an aspect of State sovereignty. It includes both the power to prescribe rules and
the power to enforce them (enforcement jurisdiction).

TYPES OF JURISDICTION

1. Exclusive: Only one state has jurisdiction.

2. Concurrent: two or more states can claim jurisdiction.
3. Criminal: the main concern of Public International Law
4. Civil: Private international law or conflicts of law

GENERAL PRINCIPLES ON CRIMINAL JURISDICTION

1. TERRITORIAL PRINCIPLE

• determining jurisdiction by reference to the place where the offence was committed
• A State can exercise jurisdiction over persons, property, acts or events occurring, within
its territory.
o Extension of the territorial principle

1. It is proposed that a State be allowed territorial jurisdiction when a crime is

committed ‘in whole or in part’ within its territory.
2. A crime is committed ‘in part’ within the territory when any essential
constituent element is consummated there.
3. It means that due to the modern development of inter-state transactions,
territorial principle should be extended to include:
i. Subjective territorial principle- a State has jurisdiction over offences
commenced in its territory but completed or consummated abroad.
ii. Objective territorial principle - State has jurisdiction when any
essential constituent element of a crime is commenced in another state
but completed or consummated in its territory.
iii. The classical example is the firing of a gun across a frontier causing a
death on the territory of the forum.

2. NATIONALITY PRINCIPLE

• determining jurisdiction by reference to the nationality of the person committing the

offence
• state are permitted to exercise jurisdiction over its “nationals” for crimes committed
anywhere in the world.
• The jurisdiction of course will not be exercised until the national physically comes within
the territory of his or her home state. Some countries claim jurisdiction on the basis of
some personal link, other than nationality, for instance, crimes committed abroad by their
‘permanent residents’.
 3. PROTECTIVE PRINCIPLE

• determining jurisdiction by reference to the national interest injured by the offence

• a state can punish acts prejudicial to its security, integrity, or national interest,
irrespective of where those acts take place or by whom they are committed. [i.e. without
any territorial or nationality linkage]

4. UNIVERSALITY PRINCIPLE

• determining jurisdiction by reference to the custody of the person committing the offence
• there are certain crimes which are so destructive of the international order and are
contrary to the interests of the international community as a whole, that they are treated as
delicta jure gentium (crimes under international law).
• generally accepted that all states are entitled to apprehend and punish the perpetrators of
crimes under international law regardless of territorial or national link with them.
• purpose of conceding universal jurisdiction is to ensure that no such crime goes
unpunished.
• Crimes which are subject to the universality principle are very limited in number.
• The clearest, and non-controversial, illustration of such a crime is ‘piracy’; for centuries
there has been a true, universal jurisdiction over piracy.
• Slavery too is generally regarded as being subject to universal jurisdiction.
• As far as war crimes and crimes against humanity are concerned, reference is especially
made to the 1949 Four Geneva Conventions and the obligations of State parties to punish
persons guilty of these crimes. (Art. 49, Convention I).
• Due to the almost universal adherence to these conventions (194 parties), it is generally
accepted that the grave breach of these conventions (war crimes and crimes against
humanity) are subject to universal jurisdiction.
• The same is true with the crime of genocide (which was a sub- category of crimes against
humanity but has later been regarded as a separate international crime).
• Attorney-General of the Government of Israel v Eichmann - Eichmann was the Head of
the German Gestapo and in charge of the policy that led to the extermination of Jews in
Europe.He was found in Argentina in 1960 by Israeli agents and abducted to Israel. There
he was prosecuted for war crimes, genocide and crimes against humanity. He was
convicted and sentenced to death. It was held by the court that: “The abhorrent crimes
...are not crimes under Israel law alone. These crimes are grave offences against the law
of nations itself (delicta jure gentium). The jurisdiction to try crimes under international
law is universal.”

5. PASSIVE PERSONALITY PRINCIPLE

• determining jurisdiction by reference to the nationality of the person injured by the

offence.
• If the victim of a crime is its national, a State can exercise jurisdiction over a foreigner
even though he committed it in a foreign country.
• This principle can be said as an opposite version of the nationality principle (also known
as active personality principle).
IMMUNITY FROM JURISDICTION

• Although States can exercise jurisdiction over persons, things, and occurrences within
their territory, there are certain categories of persons and entities, which, under
international law, are immune from the jurisdiction of municipal courts.
• three types of immunity

i. SOVEREIGN OR STATE IMMUNITY

1. There are several theories among which the widely accepted one is that based on the
“sovereign equality of States”.
2. The maxim says- Par in parem non habet imperium - “An equal has no power over an
equal”.
3. States are sovereign and they are equals.

Therefore, it is impossible for one sovereign State to exercise authority (by means of its legal
system) over another sovereign State.

a. absolute immunity

i. According to this theory, Foreign States were immune from the jurisdiction of
domestic courts for all the acts whatsoever without any exception.

b. Restrictive immunity

i. According to the theory of restrictive immunity, States can enjoy immunity from the
jurisdiction of a municipal court only in respect of their ‘sovereign acts’ (acta jure
imperi), not in respect of their ‘commercial acts’ (acta jure gestionis).
ii. Although some States still accept the principle of absolute immunity, the principle of
restrictive immunity is today adopted by most States.

Head of state immunity (State officials immunity)

A number of distinctions must be made.

The distinction between a serving head of State and a former head of State;
The distinction between acts done in a private capacity and those done in a public capacity;
Whether the act was an ordinary crime or an international crime.

Both heads of State and heads of government are treated as a ‘State’, which enjoys immunity
under international law. The position of a head of State in terms of immunity can be equated
to that of a head of government.

Immunity of a serving head of state

Exemption of the sovereign from ‘arrest’ or ‘detention’

Immunity from civil proceedings: A serving head of state can immune for his official acts but
not for his private acts.

Immunity from criminal proceedings: A serving head of state enjoys absolute immunity from
criminal proceedings, in respect of both acts performed in the course of official functions and
private acts.

Ghadaffi Case: Colonel Ghadaffi as Head of State of Libya was immune from jurisdiction in
respect of alleged complicity in acts of terrorism leading to the destruction of a civilian
aircraft in 1999.

ministers other than the head of government

In the Arrest Warrant case, the ICJ stated that “A Minister for Foreign affairs occupies a
position such that, like the Head of State or the Head of Government, he or she is recognised
under international law as representative of the State solely by virtue of his or her office”

The consequence of such status was, on the facts before the Court, to confer personal
inviolability and immunity from criminal jurisdiction.

immunity of a former head of state: A former head of State has no immunity in respect of
private acts committed while in office.

DIPLOMATIC (AND CONSULAR) IMMUNITY

‘Diplomacy’: any means by which states establish mutual relations, communicate with each
other, or carry out political or legal transactions, in each case through their authorised agents.
Normally diplomacy involves the exchange of permanent diplomatic missions.

Nevertheless, diplomacy in a wider sense may also include the categories of (1) special
missions or ad hoc diplomacy, and (2) the representatives of states at international
conferences.

The rules of international law governing diplomatic relations were the product of long-
established State practice.

The law has now been codified to a considerable extent in the Vienna Convention on
Diplomatic Relations, 1961. (179 Parties to the Vienna Convention; almost universal).

A diplomatic mission usually include a ‘head of the mission’ and the members of the
mission.

Article 14: Heads of mission - three classes:

1. that of ambassadors or nuncios [a diplomatic representative of the Pope having

ambassadorial status] accredited to Heads of State;
2. that of envoys, ministers and internuncios [ranking below a nuncios],
accredited to Heads of Government;
3. that of charg`e d’affaires accredited to Ministers for Foreign Affairs.
The staff of the mission divided into three categories

(Article 1):

i. The diplomatic staff, namely, members of the staff of the mission having diplomatic
rank, such as counselors, diplomatic secretaries, or attachés.
ii. The administrative and technical staff, such as clerical assistants and archivists.
iii. The service staff, who are in the domestic service of the mission, such as drivers,
cleaners and kitchen staff.

Persona non grata (unaceptable diplomat): Article 9: The receiving State may at any time
declare the head of the mission or any member of the diplomatic staff of the mission persona
non grata or that any other member of the staff of the mission is not acceptable.

The sending State has either to recall the person concerned or terminate his functions with the
mission. This is a step which can be used as a sanction if immunities are abused.

Inviolability: Inviolability can be defined as secureness from violation, assault or trespass.

The two main forms of inviolability are:

1. inviolability of the mission; and

2. inviolability of diplomatic agents.

inviolability of the mission (article 22)

The premises of the mission shall be inviolable. The agent of the receiving state may not
enter them, except with the consent of the head of the mission.

The receiving state is under a special duty ...to protect the premises of the mission against any
intrusion or damage and to prevent any disturbance of the peace of the mission....

The premises of the mission...and the means of transport of the mission shall be immune
from search, requisition, attachment or execution.

inviolability of diplomatic agents (article 29)

United States Diplomatic and Consular Staff in Tehran case - “The person of a diplomatic
agent shall be inviolable. He shall not be liable to any form of arrest or detention. The
receiving state shall treat him with due respect and shall take all appropriate steps to prevent
any attack on his person, freedom or dignity”.

Immunity from local jurisdiction: Diplomatic agents are immune from the jurisdiction of
local courts. They are immune from:

a. criminal,

i. Article 31 (1): “A diplomatic

 agent shall be immune from the criminal jurisdiction of the receiving State...”.

ii. Immunity from criminal jurisdiction is absolute and a diplomatic agent cannot under
any circumstances be tried or punished by the local
iii. criminal courts of the receiving state.
This does not mean that he must have a right to do what he likes. In fact, under Art.
41, he is under an obligation to respect the laws of the receiving state.
iv. Moreover, although exempt from the jurisdiction of the receiving state, a diplomat
remains subject to the jurisdiction of its own state. Art. 31 (4): “The immunity of a
diplomatic agent from the jurisdiction of the receiving state does not exempt him from
the jurisdiction of the sending state”.

b. civil, and administrative jurisdiction

i. In respect of civil and administrative jurisdiction, diplomatic agents cannot enjoy

absolute immunity.
ii. Their immunity is subject to three exceptions mentioned in Article 31 (1) of the
Vienna Convention: “A diplomatic agent .... shall also enjoy immunity from its civil
and administrative jurisdiction, except in the case of:

(a) a real action relating to private immovable property situated in the territory of the
receiving state, unless he holds it on behalf of the sending state for the purposes of the
mission;

(b) an action relating to succession in which the diplomatic agent is involved ...as a
private person and not on behalf of the sending state;

(c) an action relating to any professional or commercial activity exercised by the

diplomatic agent in the receiving state outside his official functions.

DURATION OF IMMUNITY

Article 39 (2): “When the functions of a person enjoying privileges and immunities shall
normally cease at the moment when he leaves the country or on expiry of a reasonable period
in which to do so”.

In case of ‘official acts’, the immunity is permanent.

In respect of ‘private acts’, the immunity is contingent and supplementary as it ceases when
the individual concerned leaves his post.

IMMUNITY OF INTERNATIONAL ORGANIZATIONS

As international organisations are vested by States with important functions, they require
privileges and immunities for the effective exercise of their functions.

There is a major difference between diplomatic immunity and immunity of IOs.

The diplomat who is immune from the jurisdiction of the receiving state is under the
jurisdiction of his own State whereas no such jurisdiction exists in case of the immunity of
IOs.

The UN is the most important international organization of the present day and any study on
immunity of international organizations should start with the privileges and immunity of the
UN.

Article 104 of the Charter:

“The Organisation shall enjoy in the territory of each of its Members such legal capacity as
may be necessary for the exercise of its functions and the fulfilment of its purposes.”

Article 105 of the Charter:

“1. The Organisation shall enjoy in the territory of each of its Members such privileges and
immunities as are necessary for the fulfilment of its purposes.
2. Representatives of the Members of the UN and officials of the Organisation shall similarly
enjoy such privileges and immunities as are necessary for the independent exercise of their
functions.

3. The GA may make recommendations with a view to determining the details of the
application of this Article or may propose conventions to the Members of the UN for this
purpose”.

Article 105(3) of the UN Charter, the GA adopted the ‘Convention on the Privileges and
Immunities of the United Nations 1946’ & ‘Convention on the Privileges and Immunities of
the Specialised Agencies1947’.

According to the former, the UN has complete immunity from all legal process and its
premises, assets, archives, and documents are inviolable.

The Secretary-General and the Assistant Secretaries-General of the UN can enjoy the same
privileges and immunities as the head of a diplomatic mission does. Other officials of the UN
have only limited immunities, such as immunity from legal process in respect of their official
acts.

In respect of experts performing missions for the UN, the Convention provides that: “Experts
performing missions for the UN shall immune from legal process of every kind, in respect of
words spoken or written and acts done by them in the course of the performance of their
mission”.

These conventions are of a multilateral character and thus it is also necessary to conclude a
special treaty with the host State in whose territory the headquarters of the organisation is
situated.

The ‘Headquarters Agreements’ between the UN and the US, as well as the UN and
Switzerland are good examples.