Doctrine of Jurisdiction in International Laws*
Shri. M. V. K. Moorthy, Advocate
International Law is a fascinating but complicated subject. The author uses his expertise to demystify the subject and traces out all the fundamental principles that form the core of international law.
Today, International Law refers to those rules and norms which regulate the conduct of States and other entities which at any time are recognized as being endowed with international personality, for example international organizations and individuals in their relations with each other. States, although remain the primary subject of International Law, are no longer its exclusive subjects as they once were. International Law was initially concerned exclusively with regulating interstate relations and then only in respect of diplomatic relations and the conduct of the war. International Law has expanded both in terms of its subjects and its contents. Major problems of international concern have been tackled collectively by States. The consequence has been a proliferation in the international organizations in the years since 1945. Modern technology has brought states and other populations into closer and more frequent contact with each other and rules have evolved to regulate such contact. The subject matter of International Law has correspondingly extended and International Law now has within its ambit issues which were traditionally regarded as being exclusively within a state, domestic jurisdiction, for example is treatment of one’s own nationals. This has had repercussions for individuals. They are now recognized as possessing some, albeit limited, international personality. The traditional definition of International Law, namely a body of rules governing the relations of independent states in times of peace and war, is too rigid and outmoded. Definition of International Law must accommodate the developments which the International Legal System has witnessed in the 20th century and must reflect International Law as it is today.
Analysis of the question whether International Law is a law, principally pre-supposes a definition of law and is therefore one more suited for a jurisprudence class than International Law class. It is sufficient to say here that International Law is Law. States acknowledge it as such and some states refer to International Law in their Constitutions and like to be seen acting in accordance with it, and the legal advisers were employed to formulate, to present and defend their states position in International Law. International Law is not imposed on states because there is no International legislation. International Law is concerned with promoting International cooperation and achieving co-existence among states. In the event of the breakdown of the International Law, the fault does not lie with it but with those who operate within International Legal System. The International Legal System is decentralised and founded essentially on consensus. International Law is made primarily in one of the two ways, through the practice of states (Customary International Law) and through agreements entered into by states (Treaties). The absence of strong enforcement machinery is highlighted by skeptics as a weakness of International Law. There is no International Police Force nor is there an International Court with compulsory jurisdiction to which states are required to submit. That is not to say, however, that International Law is not effective. There is an International Court to which states can refer their disputes for settlement, subject to the agreement of states to submit to the courts. The International legal system is intrinsically different from municipal law. The principal participants of the International Legal System, States, are all treated as equally sovereign. The International community is composed not of a homogeneous grouping of States but rather a heterogeneous group of nearly 200 which differ Politically, Economically, Culturally and Ideologically. States need to co-exist. International Law was conceived and born out of such need and thus is designed to promote International peace and harmony. International Law as a system is of a recent origin. Modern International Law stems from the rise of the secular sovereign state in Western Europe. As in any community, law is required to regulate the relations of the States with each other. International Law set the perimeters of state action; within these perimeters establishing national competent states enjoyed freedom of action. International Law continues to be explained as International intercourse increased and by the 19th century had become, geographically at least, a universal system. The 20th century has witnessed major changes which have had repercussions for the International Legal System. The 20th century has seen a greater emphasis on International cooperation, whereby States work together rather than individually. Matters once considered exclusively within domestic jurisdiction are now susceptible to International regulations. The international law today is no longer the preserve of some 50 States but rather embraces more than 200 states. It is no longer a exclusive western club. The new States have ideas contrary to those held by the old states. Jurisdiction is a attribute of state sovereignty. A State’s jurisdiction refers to the competence of the State to govern persons and property by its local law (criminal and civil). This competence embraces jurisdiction to prescribe, to adjudicate and to enforce the law. Jurisdiction is primarily exercised on territorial basis, but there are exceptions, for example there will be persons within the territory who will be immune from jurisdiction, whilst there will be occasions when a state may exercise jurisdiction outside its territory. The exercise or non-exercise of the jurisdiction is governed by a state’s local law. In International law, jurisdiction relating to the allocation of competence between state’s is an till defined concept. International Law confines itself to criminal rather than civil jurisdiction. The civil law is the concern private international law on, more correctly, the conflict of laws, though in the last resort civil jurisdiction, may be backed by the sanctions of the criminal law. International Law does not prescribe rules requiring the exercise of the jurisdiction. It concerns principally with the propriety of the exercises of state jurisdiction.
The exercise of jurisdiction is based upon the following concepts – Territorial Principle, Nationality Protective (Security) Principle, Universality Principle and Passive Personality Principle. The first four principles were accepted by the Harvard Research Draft Convention of 1935. The convention was an unofficial work produced by a number of American international lawyers. Although not binding on any state, it remains of interest because of the extensive study of state practice which was undertaken. The last principle namely Passive Personality principle was however, not adopted by the Convention. It is interesting to note that the bases of jurisdiction are not listed in any hierarchy. No state can claim precedence simply on the principle on which it exercises jurisdiction. A state may legitimately possess jurisdiction concurrently with another state, the state which will exercise jurisdiction will be decided by other facts, for example physical presence of the alleged offender.
Territorial principle on which basis exercise of jurisdiction is the favoured basis for the exercise of state jurisdiction. Events occurring within a state’s territorial boundaries and persons within that territory, albeit their temporary presence are as a rule subject to the application of local law. If a person stands near to the border between two countries and fires a gun and thereby injures a person on the other side, which state has jurisdiction? The answer is both. The state from which the gun was fired has jurisdiction under the subjective territorial principle, whilst the state where the injury was sustained has jurisdiction under the objective territorial principle.
The subjective territorial principle allows the exercise of jurisdiction in the state where a crime is commenced and the objective territorial principle gives jurisdiction to the state in which the crime has been completed and has effect— the forum of injury. Both the states in such case legitimately can claim jurisdiction. Of course, there is no rule of international law which gives a state, where a crime is completed, exclusive jurisdiction. The state in which the crime was initiated is, in other words, not restricted from exercising jurisdiction. More controversial has been the exercise of jurisdiction based on the effects principles so as to regulate the affairs of foreign nationals abroad, because such activities have an economic impact in the regulating state. The most frequent application of this principle which is essentially an extension of the objective territorial principle has been by the United States.
The jurisdiction exercised on Nationality principle relates to the nationality of the offender. A state may exercise jurisdiction over any of its nationals wherever they may be and in respect of offences committed abroad. Although universally acknowledged as a basis of jurisdiction, it is utilized more extensively by civil law countries than those with a common law system. The fact that jurisdiction may be claimed on the nationality principle does not preclude the state in which the offence was committed from exercising jurisdiction on the territorial principle.
The state may exercise jurisdiction on Protective principle, in respect of offences which, although occurring abroad and committed by non-nationals, are regarded as injurious to the state’s security. However, the justification lies in the need to protect a state from the prejudicial activities of an alien when such activities are not, for instance, unlawful in the country in which they are being carried out. Examples of when a state might claim jurisdiction on this principle would be in respect of plans to overthrow its government or counterfeit its currency. The principle was invoked by Israel along with the universality principle in the case against Eichmann, while in the English courts it has been said “no principle of comity demands that a state should ignore the crime of treason committed against it outside its territory”, reported in Joyce vs. D.PP  A.C.347 (H.L.) at 372.
In regard to Universality principle, one interpretation of this principle is that it gives jurisdiction to a state over all crimes perpetrated by foreigners abroad. Of course, such an interpretation is not regarded as being in conformity with international law. The principle may acceptably be invoked is in respect of international crimes, that is, offences which are prohibited by international law and the international community as a whole. War crimes and genocide are now widely accepted as being susceptible to universal jurisdiction. No state has exercised jurisdiction exclusively on such a basis. In the Eichmann Case reported in Attorney-General of the Government of Israel vs. Eichmann (1961) 36, I.L.R. 5, Harris, p 266, Israel successfully claimed jurisdiction on universality principle. International crimes “proper” are susceptible to the universal jurisdiction under customary international law regardless of whether a state is party to any international agreement.
The link between the state exercising jurisdiction and the offence is the nationality of the victim. A state may exercise jurisdiction over an alien in respect of an act which has taken place out with its boundaries but against one of its nationals. Of course, it has not been widely accepted a basis of jurisdiction. A reference is made to the objection of Judge Moore in the Lotus Case in (1927) pp 141-148.
Sovereign immunity and diplomatic immunity are the two principal exceptions to the exercise of territorial jurisdiction. Sovereign immunity refers to immunities enjoyed by foreign heads of state. Diplomatic immunity refers to the immunities enjoyed by their official representatives. A legal maxim is that ”Par in parem non habat imperium” means one cannot exercise authority over an equal. All states are equal. No state may exercise jurisdiction over another state without its consent. Historically, a sovereign and his state were regarded as synonymous. The ruler of a foreign state enjoys complete immunity — the principle that this extends to acts done in a private capacity was confirmed in Mighell vs. Suitan of Johore in (1894)1 Q.B.149 and this principle still holds the field even today.
Traditionally, foreign states were likewise immune from the jurisdiction of the courts of other states. States in the twentieth century, however, became increasingly involved in commercial activities until eventually state enterprises enjoyed an immunity not enjoyed by non-state counterparts. Sovereign immunity placed state enterprises in a privileged position. Consequently, a number of states adopted a modified absolute immunity policy. A distinction was drawn between the public acts of a state (government acts) jure imperii, and private acts (trading and commercial acts) jure gestionis. Immunity was granted in respect of jure imperil acts, but not in respect of jure gestionis. The principle of absolute immunity was established in The Parliament Belge case, reported in (1879) 4 PD.129, in which it was held that The Parliament Belge, a mail packet vessel belonging to the Belgian King, was entitled to complete immunity. The principle was subsequently confirmed in the Porto Alexandra case reported (1920) P30, The Cristina in (1938) A.C.485, Krajina vs. Tass Agency in (1949) 2 All E.R. 274. Concerned at the privileged position enjoyed by foreign governments, the courts of a number of European states handed down judicial decisions curtailing the scope of immunity. In Dralle vs. Republic of Czechoslovakia in (1950) 17 l.L.R. 155 Austrian S C and Empire of Iran in (1963) 45 I.L.R. 57, Federal Constitution Court, German Federal Republic. The so-called “Tate-letter” issued by the United States State Department in 1952 intimated a similar change in American policy by which the immunity of the sovereign is recognized with regard to sovereign or public acts of a State. The American Foreign Sovereign Immunities Act of 1976 also confirms restrictive immunity as American Policy. The United Kingdom and Commonwealth countries, however, maintained a strict adherence to absolute immunity — at least until 1970’s. Britain in the 1970s adopted a restricted immunity policy. The common law was affected by decisions of the courts. The State Immunity Act was introduced in 1978. However, sovereign immunity in Britain is now governed primarily by the statutory law which spells out the instances when, and in respect of what activities a state will not be immune from proceedings in the British courts. Canada also adopted the restrictive doctrine in the State Immunity Act, 1982.
In relation to Diplomatic immunity, it is to be noted that the institution of diplomacy, with its concomitant privileges and immunities, has withstood the test of centuries and proved to be an instrument essential for effective cooperation in the international community, and for enabling States, irrespective of their differing constitutional and social systems, to achieve mutual understanding and to resolve their differences by peaceful means. The territorial jurisdiction is an exception to diplomatic immunity, representatives of a foreign state are immune from the application of the host states municipal law. International diplomatic law was the earliest expression of international relations. For example, Diplomatic relations exist only by mutual consent of states. Although all independent states enjoy the capacity to establish diplomatic relations, there is no right to diplomatic relations.
Diplomatic privileges and immunities have, as their raison d’etre, a functional objective — the purpose of such privileges and immunities is not to benefit individuals, but to ensure the efficient performance of the functions of diplomatic missions as representing States. The receiving State may, at any time and without providing reasons, notify the sending state that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is unacceptable. The sending State is required either to recall the person concerned or terminate his functions at the mission. If the sending State refuses or fails to do this duty within a reasonable period, the receiving State may refuse to recognize the person concerned as a member of the mission. The premises of a diplomatic mission are inviolable i.e., premises which are currently being used for the purpose of a mission. Reference is made to West Minister C.C vs. Government of Iran reported in (1986) 1 WLR 979 (CH). Inviolability does not mean extra territorial jurisdiction. Diplomatic staff enjoy free movement and travel within the territory of the host State, subject to laws regulating entry into certain areas for reasons of national security. The receiving State must also allow and protect free communication by the mission for all official purposes and the diplomatic bag, which must be clearly marked as such, must be neither opened nor detained. The International Law Commission adopted draft Articles on the Status of Diplomatic Courier and the Diplomatic Bag Not accompanied by the Diplomatic courier in 1989. The Central article is Article 28 which enunciates the basic principle of inviolability. The International Law Commission has proposed to the general assembly of the UNO that an international conference be convened with a view to the Draft Articles forming the basis of an international convention on the subject. The person of a diplomatic agent is inviolable and is not liable to any form of arrest or detention and the receiving State must treat such a person with due respect and must take all appropriate steps to prevent any attack on his person, freedom or dignity. A diplomatic agent is for the purposes of Convention is the head of the mission or a member of the diplomatic staff of the mission.
A diplomatic agent enjoys absolute immunity from criminal jurisdiction of the receiving State. The diplomatic agent is also immune from receiving State’s civil and administrative jurisdiction, except in the case of a real action pertaining to private immovable property situated within the territory of the receiving State unless the said property is held on behalf of the sending State for the purpose of mission, an action relating to succession in which the diplomatic agent is involved as executor. administrator, heir or legatee as a private person and not on behalf of the sending State and also for an action relating to an professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions and in such circumstances the immunity is not available. A diplomatic agent is not obliged to give evidence as a witness. The immunity enjoyed by the diplomatic agent is also extended to the members of his family namely his spouse and children below the age of 18 if they are not nationals of the host State. It must be noted that immunity is from jurisdiction but not from liability. The Vienna Convention however distinguishes between diplomatic agents, administrative and technical staff and service staff. The administrative and technical staff not being the nationals of the host State enjoy complete immunity from criminal jurisdiction but their immunity from civil and administrative jurisdiction confines only to acts performed in discharge of official duties. Distinguishing between the mission staff and their respective immunities was innovation in the Vienna Convention and represents a modification of the absolute immunity previously enjoyed, for example English Law, reference to Empson vs. Smith reported in (1966) 1 QB 426 (CA). A diplomatic agent who is either recalled or who is declared by the sending State as persona non grata is allowed a period of grace during which his immunity continues where after such immunity will not be available if the diplomat has not left the country and he may be sued for private acts committed during the term of office. In addition to immunity from jurisdiction, diplomatic agents, with certain exceptions such as purchase tax, was exempt from taxes levied in the host State. Mission premises are similarly exempt from local taxes except for those levied in respect of specific services rendered. The right of immunity naturally inhers the duty to respect the laws and regulations of the receiving State and such diplomats are not allowed to interfere in the internal affairs of the receiving State, for example, political affairs of the host State.
Consuls represent their country in another country with the consent of the latter and consuls are not concerned with political affairs of the host country. They also give various forms of assistance to nationals of the sending State when such nationals are within the territory of the receiving States. Consular relations are largely covered by bipartite agreement. The Vienna Convention on Consular Relations was adopted in 1963 to regulate on a universal basis, the position and functions of the consuls. Special adhoc missions sent by a State to fulfill a specific purpose in another State are a recent innovation. There are no rules of customary international law on this subject. A convention guaranteeing immunities to special missions was drawn up in 1969, of course based essentially on the 1961 Vienna Convention on diplomatic relations.
International organizations enjoy those privileges and immunities from the jurisdiction of a member State as are necessary for the fulfillment of the organization’s purposes. Such immunities inter alia include immunity from legal process, financial controls, taxes and duties. The immunities and privileges to be enjoyed by the organization and its staff vis-a-vis member States are provided for and in the Constituent Charter of organization and supplementary agreements adhered to by the members of the organizations, for example, the General Convention on the Privileges and Immunities of United Nations 1946. The General Convention gives immunity from the legal process to inter alia, the property and the assets of the United Nations unless such immunity is waived as well as immunity from criminal jurisdiction for its representations.
Summing up the features, I would like to state that the States exercise their jurisdiction on various principles as elaborated in the foregoing paragraphs. The doctrine of jurisdiction in administration of international law is very much essential and desirable ingredient to achieve, preserve and maintain world peace, intercourse between the countries, globalization on all fronts is economic development and to keep up and maintain the human dignity of the subjects in all the countries in the world. Therefore, the aspect of jurisdiction plays a very important, vital and pivotal role in international law. I do sincerely and wholeheartedly and honestly believe and loyally wish that the development of the world would be galloping on the well established adherence to the concepts of jurisdiction by all the countries.
[Source: Souvenir published at the time of National Tax Conference held at Hyderabad. Page 124]
*Reproduced with permission from the AIFTP Journal – September 2008 issue.