State Jurisdiction
State Jurisdiction is the authority of a State to prescribe, enforce and adjudicate the rule of law within its territory. It extends to all persons and property within its territory. It may also extend to persons and property on foreign territory, where there is a direct national link between the two.
This authority is derived from the sovereignty of the State and is a fundamental feature. It is linked with the concept of equal treatment before the law and the non-interference of the domestic laws of a State.
State has legislative supremacy within its territory but it can be challenged if it makes laws in contravention with International Law. In such cases it can be held liable for the breach of International Law. Similarly, no State can enforce its laws upon any other State without their consent and cannot infringe the territorial sovereignty of another State.
Principles of Jurisdiction
There are a number of principles based on which a State can claim Jurisdiction. These principles differ in civil and criminal cases. The scope of civil jurisdiction is much wider than the scope of criminal jurisdiction. In civil cases, there is usually a service of the writ upon the defendant, even if their presence in the territory is temporary. In the case of criminal jurisdiction, however, certain principles are invoked by the State.
1. Territorial Principle
The Territorial Principle originates from the concept of State sovereignty. This means that the State has supreme jurisdiction over the events in its territory, with respect to its persons and property or over events that directly affect events in its territory, regardless of the nationality of the person responsible. This is the dominant ground of jurisdiction in International Law.
One State cannot interfere with the territorial jurisdiction of another State unless they have an express agreement to do so. An example of this is the 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.
2. Nationality Principle
The Nationality Principle means that the State has jurisdiction over its citizens in foreign territory. This implies that the State has jurisdiction over all its nationals. This principle is weaker than the territorial principle and can be invoked mostly in the cases of heinous crimes by or against the nationals of the State. This has been subject to controversies amongst States, however, it is an internationally accepted principle against terrorism and other such crimes.
3. Protective Principle
The Protective Principle implies that a State may exercise jurisdiction against aliens where there is a question of the security of the State. The State exercises this jurisdiction to protect its sovereignty. However, the scope of this principle is much narrower and it is questionable as to what comes in its purview.
This principle is secondary since it can be abused to undermine the jurisdiction of another State, however, in practice, it is only applied when the actions of an alien on foreign soil threaten the security and sovereignty of the State. This includes plots to overthrow a government, treason, espionage, forging a currency, economic crimes and breaking immigration laws and regulations.
4. Universality Principle
The Universality Principle implies that a State can claim jurisdiction over any person, anywhere in the world, without any relation to its territory, nationality or security. This principle has been collectively recognized by the States in relation to the violation of International Law. This includes war crimes, crimes against humanity and terrorism.
Immunity from Jurisdiction
Under International Law, immunity is granted to certain persons or organizations. Namely, there are 4 types of cases, where the subjects have immunity from the jurisdiction of the State:
- Sovereign Immunity
- Diplomatic Immunity
- Consular Immunity
- Immunities of International Organizations
State Recognition
Recognition is the discretionary unilateral act of the Government of a State to officially accept the existence of another State. If an entity is recognised as a State then it will enjoy certain rights and be subjected to certain duties. Further, it will be entitled to privileges and immunity in a foreign State, not given to a non-State.
The decision of recognising a State is more of a political question than a legal one since the State needs to protect its own national interests. Further, there is no legal procedure for recognising a State and it is a mere diplomatic act.
Theories of Recognition
There are primarily two theories of recognition:
1. Constitutive Theory
Under this theory, the recognition of a body by other States creates a new State which grants it an international legal personality. This means that a new State is established with the will and consent of the existing States.
2. Declaratory Theory
According to the Declaratory Theory, recognition has no legal effect and is a mere formality. Statehood exists even prior to recognition and recognition is only the acknowledgement of that fact. If a body satisfies the conditions of Statehood, then it is a State with all rights and duties and has to be treated as a State by other States.
In the modern context, the declaratory theory is accepted. Article 3 of Montevideo Convention on the Rights and Duties of States, 1933, provides that “The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence”.
De Jure and De Facto Recognition
De Jure Recognition means that according to the recognising State, the State to be recognised fulfils the criterion in International Law. De Facto Recognition on the other hand is a temporary recognition. This means that in the opinion of the recognising State, there are reservations about the future but the State or Government provisionally or for the meantime fulfils the requirements of being recognised as a State.
De Jure recognition is permanent and cannot be withdrawn, while, De Facto recognition can be revoked if the body no longer fulfils the requirements of being a State or can be converted into a De Jure recognition when the recognising State is satisfied. For example, the United Kingdom recognised the Soviet Union as a State, De Facto in 1921 and De Jure in 1924.
State Succession
State Succession is when the sovereignty of one territory succeeds another. Article 2(1)(b) of the Vienna Convention on State Succession defines State Succession as “the replacement of one State by another in the responsibility for the international relations of territory”. Hence, the State loses control over part or the entire territory.
Essentially, this concept deals with the transfer of Sovereignty and rights from the previous State to the new State. This has been especially important since the early 20th century. State Succession can be due to various circumstances. Decolonization of countries has been an important event in the last century. Hence, these countries gained the status of a State and went through a State Succession. Similarly, when a State divides into parts and each part operates as a separate body, there is State Succession. Likewise, annexation, secession and merger of States also result in State Succession.
Kinds of State Succession
1. Universal Succession
When the whole of parent State ceases to exist and a successor State is formed in its place, taking on its identity, it is known as Universal or Total Succession. For Example, The formation of Turkey from the Ottoman Empire is universal succession. This is the most common form of succession.
2. Partial Succession
When a part of the parent State is severed and forms its own separate identity, it is known as Partial Succession. In this case, the old State retains its sovereignty and rights, while the severed part becomes an independent State, carrying no obligations from its predecessor. For instance, the partition between India and Pakistan is an example of Partial Succession.
The Vienna Convention on State Succession provides that in case of the border treaties, no significant changes would be observed and the treaties would pass to the Successor State. This is done keeping in mind the greater interests of the International Community. Similarly, other forms of local treaties related to land, territory, etc. would also pass on to the Successor State upon succession. Treaties relating to Human Rights are passed on to the successors with all their rights, duties and obligations. In the case of treaties relating to peace or neutrality, no succession takes place.
This article is authored by Vallari Gokhale, Second-Year, B.A. LL.B student at Guru Gobind Singh Indraprastha University
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