STATE JURISDICTION AND

IMMUNITIES UNDER
INTERNATIONAL LAWS
BY: SHABANA KOUSER
 State Jurisdiction

• • State jurisdiction is the capacity of a State

• under International Law to prescribe and
• enforce the rules of law.
• • It is derived from the State sovereignty and
• constitutes its vital and central feature.
• • It is the authority of a State over persons,
property and
• • events which are primarily within its territories (its
land, its national airspace, and its internal and
territorial water).
• • This authority involves the powers to prescribe the
• rules of law, to enforce the prescribed rules of law and
• to adjudicate.
• • The powers related to State jurisdiction raise the
• question regarding the types and forms of State
• Jurisdiction.
• • State jurisdiction may extend beyond its
• territory over persons and things which have a
• national link.
• • This extension raises the question regarding
• the grounds or the principles upon which the
• State can assert its jurisdiction within and
• beyond its boundaries.
• • Nevertheless, there are certain persons,
property and events within a State territory
which are immune from its jurisdiction.
• This limitation to a State jurisdiction raises a
question regarding the immunity from
jurisdiction.
• • The answers to the above raised questions are
dealt with in the following sections.
 Types of State Jurisdiction
• • State jurisdiction implies the competence to
prescribe rules of law, the jurisdiction to
enforce the prescribed rules of law and the
jurisdiction to adjudicate.
• • Accordingly, it is of three types: legislative
jurisdiction, executive jurisdiction and judicial
jurisdiction.
 (1) Legislative Jurisdiction
• • Legislative jurisdiction is the capacity of a State
to
prescribe rules of law (the power to legislate).
• • A State has the supremacy to make binding
laws
within its territory.
• • It has a legislative exclusivity in many areas.
• • This supremacy is entrusted to constitutionally
recognized organs.
• • Although legislation is primarily enforceable
within a State territory, it may extend beyond
its territory in certain circumstances.
• • International Law, for example, accepts that a
State may levy taxes against persons not
within its territory as long as there is a real
link between the State and the proposed
taxpayer, whether it is nationality or domicile
• • The question of how far a court will enforce
foreign legislation is a matter within the field
of Private International Law (conflict of laws).
• • It is common practice of States that a State
enforces civil laws of another State, but it is
rare to enforce the penal or taxes laws of
another State.
• • The legislative supremacy of a State within its territory is
• well established in International Law.
• • However, this supremacy may be challenged in cases
where
• a State adopts laws that are contrary to the rules of
• International Law.
• • In such cases, a State will be liable for a breach of
• International Law.
• • A State may also be liable for a breach of International
Law
• if it abuses its rights to legislate for its nationals abroad.
 (2) Executive Jurisdiction
• • Executive jurisdiction is the capacity of a State to act and
to
enforce its laws within its territory.
• • Generally, since States are independent of each other and
possess territorial sovereignty, they have no authority to
carry out their functions on foreign territory.
• • No State has the authority to infringe the territorial
sovereignty of another State.
• • In this sense, a State cannot enforce its laws upon foreign
territory without the consent of the host State; otherwise,
it will be liable for a breach of International Law.
 (3) Judicial Jurisdiction
• • Judicial jurisdiction is the capacity of the
courts of a State to try legal cases.
• • A State has an exclusive authority to create
courts and assign their jurisdiction, and to lay
down the procedures to be followed.
• • However, in doing so, it cannot by any
means alter the way in which foreign courts
operate.
• • There are a number of principles upon which the
courts of a State can claim jurisdiction.
• • In civil matters, the principles range from the mere
presence of the defendant in the territory of a State to
the
nationality and domicile principles.
• • In the criminal matters, they range from the
territorial
principle to the universality principle.
• • These principles are the subject of the following
section.
 Principles of Jurisdiction
• • Generally, the exercise of civil jurisdiction by courts of a
State has been claimed upon far wider grounds than has
been the case in criminal matters.
• • The consequent reaction by other State with this regard
has been much mild.
• • This is partly because public opinion is far more vigorous
where a person is tried in foreign territory for criminal
offences than if a person is involved in a civil case.
• • In addition, International Law does not impose any
restrictions on the jurisdiction of courts in civil matters.
• • In Common Law countries such as the United
States and United Kingdom, the usual ground for
jurisdiction in civil cases is the service of a writ
upon the defendant within the country, even if
the presence of the defendant is temporary and
incidental.
• • In Civil Law countries, the usual ground for
jurisdiction is the habitual residence of the
defendant in the country.
• • In some countries such as Netherlands,
Denmark and Sweden, generally courts assert
their jurisdiction if the defendant possesses
assets in the country; however, in matrimonial
cases the commonly accepted ground for
jurisdiction is the domicile or residence of the
plaintiff.
• • As far as criminal jurisdiction is concerned, the
grounds or principles of jurisdiction mostly
invoked by States are as follows.
 (1) The Territorial Principle
• • The territorial principle is derived from the concept of
State sovereignty.
• • It means that a State has the primary jurisdiction over all
events taking place in its territory regardless of the
nationality of the person responsible.
• • It is the dominant ground of jurisdiction in International
Law.
• • All other State must respect the supremacy of the State
over its territory, and consequently must not interfere
neither in its internal affairs nor in its territorial jurisdiction.
• • The territorial jurisdiction of State extents
over its land, its national airspace, its internal
water, its territorial sea, its national aircrafts,
and its national vessels.
• • It encompasses not only crimes committed
on its territory but also crimes have effects
within its territory.
• • In such a case a concurrent jurisdiction
occurs, a subjective territorial jurisdiction may
be exercised by the State in whose territory
the crime was committed, and an objective
territorial jurisdiction may be exercised by the
State in whose territory the crime had its
effect.
• • Although jurisdiction is primarily and
predominantly territorial, it is not exclusive.
• • A State is free to confer upon other States the
right to exercise certain jurisdiction within its
national territory.
• • States are free to arrange the right of each one
to exercise certain jurisdiction within each
national territory.
• • The most significant recent examples of such
arrangements are: the 1991 France-United Kingdom
Protocol Concerning Frontier Control and Policing,
under which the frontier control laws and regulations
of each State are applicable and may be enforced by its
officers in the control zones of the other; the 1994
Israel-Jordan Peace Treaty, under which the Israeli
criminal laws are applicable to the Israeli nationals and
the activities involving only them in the specified areas
under Jordan’s sovereignty, and measures can be taken
in the areas by Israel to enforce such laws.
 (2) The Nationality Principle
• • The nationality principle implies that a State
jurisdiction extends to its nationals and actions
they take beyond its territory
• • It is based upon the notion that the link
between the State and its nationals is personal
one independent of location.
• • Criminal jurisdiction based on the nationality
principle is universally accepted.
• • While Civil Law countries make extensive use of
it, the Common Law countries use it with respect
to major crimes such as murder and treason.
• • The Common law countries, however, do not
challenge the extensive use of this principle by
other countries.
• • A State may prosecute its nationals for crimes
committed anywhere in the world; the ground
of this jurisdiction is known as active
nationality principle.
• • Also, it may claim jurisdiction for crimes
committed by aliens against their nationals
abroad; the ground of this jurisdiction is
known as passive nationality principle
• • This last principle has been viewed as much weaker
than the territorial or active nationality principle as a
basis for jurisdiction.
• • It has been considered as a secondary basis for
jurisdiction, and a matter of considerable controversy
among States.
• • However, in recent years this principle has come to
be much acceptable by the international community in
the sphere of terrorist and other internationally
condemned crimes.
 (3) The Protective principle
• • The protective principle implies that a State
may exercise jurisdiction over an alien who
commits an act outside its territory, which is
deemed prejudicial to its security and interests.
• • It is universally accepted, although there are
uncertainties as to its practical extent, particularly
as regard to the acts which may come within its
domain.
 Continue…..
• • It is justified on the basis of protection of
State’s vital interests, particularly when the
alien commits an offence prejudicial to the
State, which is not punishable under the law
of the country where he resides and
extradition is refused.
 Continue….
• • Although the protective principle is used as
a secondary basis for jurisdiction and in a
narrower sense than the territorial or the
nationality principle, it can easily be abused,
particularly in order to undermine the
jurisdiction of other States.
 Continue…
• • In practice however, this principle is applied in
those cases where the acts of the person
which take place abroad constitute crimes
against the sovereignty of the State, such as
plots to through a government, treason,
espionage, forging a currency, economic
Crimes and breaking immigration laws and
regulations.
 Continue…
• • This principle is often used in treaties
providing for multiple jurisdictional grounds
with regard to specific crimes, such as the
1979 Hostage Convention and the 1970 Hague
Aircraft Hijacking Convention.
 (4) The Universality Principle
• • The universality principle, in its broad sense,
implies that a State can claim jurisdiction over
certain crimes committed by any person
anywhere in the world, without any required
connection to territory, nationality or special
State interest.
• • Before the Second World War, such universal
jurisdiction has been considered as contrary to
International Law by the Common Law
countries, except for acts 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 recognized over certain acts
considered as international crimes.
• • International crimes are those crimes
committed against the international community
as a whole or in violation of International Law
and punishable under it, such as war crimes,
crimes against peace and crimes against
humanity.
• • In recent years, crimes such as Hijacking of
aircraft, violation of human rights and
terrorism, have been added to the list of
international crimes.
• • Today under the universality principle, each
State and every State has jurisdiction over any
of the international crimes committed by
anyone anywhere.
 Immunity from Jurisdiction
• • The concept of jurisdiction is derived from the
concept of sovereignty, and is connected with
the principles of equality and non-interference
in domestic affairs of other States.
• • The grounds for jurisdiction are related to the
duty of a State under International Law to
respect the territorial integrity and political
independence of other States.
• • Immunity from jurisdiction is grounded on
this
duty, and constitutes derogation from the host
State jurisdiction.
• • Under International Law, immunity from
jurisdiction is granted to certain persons,
namely States (sovereigns) and their diplomatic
and consular representatives, and international
organizations.
 (1) Sovereign Immunity
• • In International Law, sovereign immunity refers to
the legal rules and principles determining the
conditions under which a State may claim
exemption from the jurisdiction of another State.
• • Sovereign immunity is a creation of customary
International Law and derives from the principles
of independence and equality of sovereign
States; since States are independent and legally
equal, no State may exercise jurisdiction over
another State without its consent
• • It is a limitation imposed by International Law
upon the sovereignty of a State.
• • Although rules of sovereign immunity form part
of customary International Law, today they are
incorporated either in international treaties, such
as the 1972 European Convention on State
Immunity, or in national statutes of certain
States, such as the 1976 U.S Foreign Sovereign
Immunities Act and the 1978 U.K State
Immunities Act.
• • Historically, the head of a State (a sovereign) was
associated with the State. Originally, both of them enjoyed
under customary International Law absolute immunity, in
all areas of their activities, from the jurisdiction of another
State.
• • While the head of a State continues today to enjoy such
absolute immunity, even for his private activities, a State
nowadays enjoys only qualified (restrictive) immunity.
• • Under the qualified immunity, a State enjoys immunity
only in respect of its governmental acts (acts jure imperii),
not in respect of its commercial acts (acts jure gestionis).
• • In practice, sovereign immunity arises on two
levels.
• • The first level concerns the immunity of a State
from the jurisdiction of courts of another State;
courts of a State cannot adjudicate a claim
against a foreign State.
• • The second level concerns the immunity of a
State from the execution of enforcement
measures undertaken by courts of another State.
• • Sovereign immunity covers the head of a
State as well as the State itself, its
government, its departments, and its
agencies.
• • It embraces the acts of these entities, their
property and assets.
• • This immunity may, however, be voluntarily
waived by a State.
• • A State may waive its immunity from
Jurisdiction and consequently submits itself to
the jurisdiction of a foreign court.
• • However, such submission (waiver of
jurisdictional immunity), although gives the court
of a State the competence to adjudicate and
enter a judgment against a foreign State, it does
not authorize the execution of the court’s
decision against such State.
• • In case of execution, another waiver is
needed, namely a waiver of immunity from
execution.
• • Waiver must be express; however, implied
waiver is accepted if indicated by the
circumstances.