Anda di halaman 1dari 29

Page | 1

Define State
and its
Jurisdiction
Submitted To
Mrs. Jasmeet Gulati
Public International Law
Submitted By
U.I.L.S.,
EshaSingh

Page | 2

P.U
Semester III
19/13

Page | 3

ACKNOWLEDGEMENT
I feel immense pleasure to thank my learned Professor Jasmeet
Gulati , to have to have put in so much of effort in helping us
understand each and every aspect of the syllabus so well ignoring
her health. I feel so thankful and have no words to thank her. I also
want to thank my mother who has helped me find material for this
project.
Thank You So much Ma'am!

ESHA
SINGH

Page | 4

INTRODUCTION
State is the main subject of international law. It is very
difficult to define the term 'state' but certain jurists have made
their endeavors to this respect .
A state is an organized community living under one government.States may
be sovereign. The term state is also applied to federated states that are
members of a federal union, which is the sovereign state. Some
states are subject to external sovereignty or hegemony where ultimate
sovereignty lies in another state. The state can also be used to refer to the
secular branches of government within a state, often as a manner of contrasting
them with churches and civilian institutions.
Many human societies have been governed by states for millennia, however for
most of pre-history people lived in stateless societies. The first states
arose about 5,500 years ago in conjunction with rapid growth of
cities, invention of writing, and codification of new forms of
religion. Over time, a variety of different forms developed,
employing a variety of justifications for their existence (such as
divine right, the theory of the social contract, etc.). Today,
however, the modern nation-state is the predominant form of state
to which people are subject.
The state is an abstract institution that only exists if it is
acknowledged by those who reside in it. The area the state covers
is the first element. This includes the land, bodies of water,
atmosphere and natural resources. The next element is the people
who live within the state. The people within a state are bound by
the laws. Sovereignty is another element, and its responsibility is

Page | 5

to ensure the inhabitants abide by the law. The government,


another element, is the institution who is responsible for ratifying
laws and for being an outlet of opinions and beliefs held by the
people.
The land is essential to form a state because it needed for
containing all of the other elements. Resources such as
agriculture, livestock, minerals, oil, natural gas, and forestry can
be found on the land. These resources benefit the state because
they supply the economy. The people are the most important
element because they are the ones who create the state. They
also maintain the resources, live on the land, and form the
government.
In 21stCentury, State is everywhere. It is touching, directly or
indirectly, all aspects of human existence. It has become
omnipotent. This was not the case a few centuries ago. Back then
state had limited role. It was primarily concerned with
(i) an order and
(ii) revenue collection.
From this very small role to today's all pervading role, the role of
state has been expanding.
Sovereignty is an abstract but necessary element of the state. The
sovereign is only an authority if the majority of the people
recognize it as one. The sovereign is different in every type of
government. In police states, the police and/or military are the
sovereign powers. In some countries, the monarch is the
sovereign. Unfortunately, some people have to endure a dictator
as the sovereign power. In true communism, the people are the
sovereign power. Others elect their sovereign, or the sovereign is

Page | 6

appointed by government members. Sometimes the court holds


the sovereign power in a country. The government is linked to the
sovereign because it creates the laws. All four elements are
intertwined with each other, and all depend on each other to
remain stable.
A STATE has been defined in various ways according to the
manner of thinking of the writer concerned.
According to Salmond,
State is a community of people which has been established for
some objectives such as internal order and external security .
According to Lawerence ,
he defines state as a political community, the members of which
are bound together by tie of common subjection to some central
authority whose commands the bulk of them habitually obey stay
to the society which is politically organized and its members are
bound with each other by being under by some central authority
and most of the people automatically follow the rules of this
central authority.
According to Prof. H.L.A.Hart
"the expression , 'a state' is a way of referring to two facts: First
,that a population inhabiting in a territory live under that form of
ordered government provided by legal system which its
characteristics structure of legislature, courts , and primary rules ;
and secondly, that the government enjoys a vaguely defined
degree or independence "
Starke

Page | 7

has righlty pointed out that an ideal definition of the term 'state' is
not possible. but in the modern period it is finally settled as to
what are the essential elements of the state.
According to Thomas D. Musgrave, Self-determination and national minorities
used the following definition of state:
In Opinion No. 1 the Commission had noted, at p. 1495, that "the
State is commonly defined as a community which consists of
a territory and a population subject to an organized political
authority; that such a state is characterized by sovereignty.1

1 (Oxford Monographs in International Law, Oxford University Press, 2000) p. 235 n. 170, in 1991

Page | 8

Essential Elements Of
The State
According to Article 1 of Montevideo Convention 1933 on Rights and Duties of
states the state "the state as a person of international law should poses the following
qualifications:
(a) A permanent population
(b) A definite security
(c ) A government
(d) capacity to enter into relation with other states
For a list of most of the states in the international community ,
who now total over 190.The Vatican city is the only state that is
generally recognized by the international community that is not a
member the united nations .
Oppenheim has pointed out the following essential elements the
state
1.population
2.definite territory
3.government
4. sovereignty

Page | 9

The famous jurist Holland has added the one more essential
element namely, to some extent , 'civilization ' because of
which the state becomes the member of international community .

P a g e | 10

POPULATION
A state fundamentally comprises of a permanent population over
which it exercises its unlimited authority. The nature of the state
depends upon the quality and quantity of its population. No ideal
size of population can be stated. Aristotle stated "A population
must be large enough to be self-sufficient, but small enough to be
well-governed." A good population makes a good state; a bad one,
a bad state. Since state is human association the first essential
element that constitute it is the people.How much people
constitute state? No exact answer can be given to such a
question.It is a different matter that a philosopher like Plato
suggest the figure of 5040 people for his sub ideal state in the
laws and a modern thinker like Rousseau prefers population of
10000 in a real democratic state.The fact in that the states of the
world vary in terms of demographic strength.We have states with
the population of 100 millions as china and with a strength of few
thousands people like san marino.In this direction we may
appreciate the view of Aristotle that the population of a state
should be neither so large that administration may be a problem
nor so small that the people may not lead a life peace and
security.It should be so much that the people may lead a life self
sufficiency.
Another question that arises at this stage is whether
the population of a state should be homogenous . Homogeneity is
determined by any factor like commonness of religion, or blood, or
language, or culture and the like. It is good that population of a
state is homogenous , because it makes the task of national
integration easy. But it is not necessary. Most of the states have a

P a g e | 11

population marked by diversity in respect of race , religion ,


language,culture etc. All problems of nation building are solved
and the people of a state , irrespective of the differences become
a nation. t signifies the situation of unity and diversity. the student
of demographic politics also take note of the fact that a very large
and unwisely population force the rulers to appreciate the course
of war . The reason is that overpopulation of the country is a
standing threat to its survival .2
Hence , there should be export of population to other
countries or a large chunk of the population should be pushed into
a war. In short, it is to be noted that without population there can
be no state.

2 J.C.Johari, Principles of modern Political science , Sterling Publishers Pvt. Ltd. , 2004 , 56

P a g e | 12

TERRITORY
A state cannot exist without territory. Territory refers to land,
surrounding water upto 3 nautical miles, as well as the air above
the land and water. Nomadic settlements did not possess any
permanent territory. Hence, they cannot be called a state . There
can be no state without a territory of its own.The nomadic tribes
cannot have a state of their own for the reason that they do not
have a fixed territory.The territory of a state includes land water
and airspace, it has maritime jurisdiction extending upto a
distance upto 3miles, though some states contend for a distance
upto 20 miles.the territorial authority of a state also extends to
ships and high season under its flags as well as its embassies and
legations in foreign lands as we have seen in the case of factors of
population so here it should be emphasized that the size of a state
territory cannot be fixed.We have as large states as Soviet Union
and china and small states as Fiji and Mauritius in respect of the
territorial make up.It is also possible that a state may be in the
form of a group of islands as Indonesia Philippines and Japan.It is
however certain that the boundary lines of a state must be well
marked out.This can be done either by the geographical make in
the forms of division by the seas,rivers,mountains,thick forests
etc.3
The second qualification is territory where the permanent
population live on. However, there is not a necessity of having
well- established boundaries international Court of Justice said in
the North Sea Continental Shelf cases, ... there is...no rule that
the land frontiers of a state must be fully determined and defined".
3 supra note 2,57

P a g e | 13

The well known example is the uncertainty of the land frontiers of


Israel when it was admitted as a state .4

4 http://www.mu.ac.in/myweb_test/Politicals%20Science%20-%20I%20- , 12.11.2014 at 1;14pm

P a g e | 14

GOVERNMENT
It is a body of a few people who administer the population and are
meant to express the will of the state. The government has limited power,
as opposed to the state's unlimited authority. The government is subject to
change and is bound to obey will of the people as well as state. To equate
the Government with State is a dangerous, yet common mistake.
Government is that agency which steers the ship of
the State. Without government, state will be directionless. Here the form
of government does not Matter. It could be Presidential System, one party
rule or even dictatorship, there has to be a government. In other words,
government is nothing but the implementing arm of state. Government is
that system through which stateexpresses its will. The government makes
law, punishes law breakers, promotes welfare of people.
It is the soul of the state . It implements the will of the
community .It protects the people against the conditions of insecurity . If
state is regarded as the first condition of a civilized life, it is due to the
existence of a governments that maintains law and order and makes 'good
life ' possible.The government is the machinery that terminates the
condition of anarchy . Government is another name for administration. if
we deeply scrutinize the views of anarchists who want to abolish the state
root and branch , we may take note of the fact that even they desire . 5

5 supra note 2 , 58

P a g e | 15

Sovereignty
It is the soul of a state. It implies that the state is independent
from external interference, as well as can maintain integrity within itself.
India could not be referred to as a state prior to 1947, as it did not have an
independent government.
Scholars believe that sovereignty is the soul of
state. Before 15th august 1947, India had territory, population and
government. But it did not have sovereignty. It shows the importance of
sovereignty.
It has two aspects (i) internal and (ii) external. In internal sovereignty, the
state has ultimate, unlimited power within its territory. It enjoy final
control over all people, associations and other things. Under external
sovereignty, it means a state is free from external control. It can enter into
international treaties. Some scholars believe that after UNO was formed in
1945 and more specifically after the age of globalization began in 1991,
the scope of external sovereignty has shrunk considerably.
As already pointed out , sovereignty is the attribute of state . It is a
creation of modern times. It is the highest power of the state that
distinguishes it from all other associates of human beings.It has two
aspects --- internal and external.It means that inside the state there can be
no other authority that may claim equality with it . In the external sphere ,
it implies that the country should be free from foreign control of any kind .
It is , however , a different matter that a state willingly accepts some
international obligations in the form of obligations in the form of

P a g e | 16

membership of the League of Nations or of the United Nations . The


existence of sovereign authority appears in the form of law. It is
universally admitted that a sovereign state is legally competent to issue
any command which is binding on all citizens and their associations. Thus,
by sovereignty Leacock implies that the territory and population in
question must form no part of a wider political unit ; nor must the territory
and population in question must form no part of it politically. 6
It follows that a state , in political theory , has four essentials
elements . As such , a proper definition of this term should include its
physical and spiritual elements . It is also required that all the four
elements should be studied in the order given above . We have many
definitions of state , but the point of difficulty is that they either fail to
include all the four elements . or disturb their order . But the definition of
Garner on this point has a merit of its own .7

6 http://www.mu.ac.in/myweb_test/Politicals%20Science%20-%20I%20- , 12.11.2014 at 1:15 pm


7 supra note 2 , 58

P a g e | 17

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. 8
According to DJ Harris, State Jurisdiction is the power to prescribe rules
(prescriptive jurisdiction) and the power to enforce them (enforcement
jurisdiction).Jurisdiction may be concurrent with other States
or it may be exclusive. It may be civil or criminal.
State jurisdiction may extend beyond its territory over
persons and things which have a national link.According to Section 3 & 4
of Indian Penal Code, 1860, any person is liable, by an Indian law, to be
tried for an offense committed beyond India shall be dealt with according
to the provisions of the IPC for any act committed beyond India in the
same manner as if such act has been committed within India.9
Nevertheless, there are certain persons, property and events within a
State territory which are immune from its jurisdiction.
8 http://www.lawnotes.in/State_Jurisdiction 12.11.2014 at 1:20 pm
9 http://www.lawnotes.in/State_Jurisdiction 12.11.14 at 2.00 pm

P a g e | 18

The State territory, for the purpose of Jurisdiction, is


taken as:
Land situated within the boundaries of the State as
recognized by the International Law over which the
State has its control and power.
Maritime coastal belt or territorial sea according to Law
of the Sea .
A Ship bearing the flag of the State wishing to exercise
Jurisdiction .
Ports .
Also, State jurisdiction means that a state court has
the right to make a legally binding decision that affects the parties
involved in the case. In other words, a plaintiff and defendant in a case
must have enough contact with the state that it is fair for the state court to
determine what their legal rights are. State jurisdiction exists over any
matter in which the state has a vested interest, such as the divorce of
individuals within the state, the sale of property within the state, or the
breach of a contract made within the state.10

10 http://www.wisegeek.com/what-is-state-jurisdiction.htm 12.11.14 at 2:10 pm

P a g e | 19

Types of State
Jurisdiction
The main types of state jurisdiction are : Territorial Jurisdiction
Extra Territorial Jurisdiction
Territorial JurisdictionIt includes land, sea/water bodies and air , space above.
Extra Territorial Jurisdiction
Extraterritorial jurisdiction (ETJ) is the legal ability of a government to
exercise authority beyond its normal boundaries.
Any authority can, of course, claim ETJ over any external territory they
wish. But for the claim to be effective in the external territory (except by
the exercise of force) it must be agreed either with the legal authority in
the external territory, or with a legal authority which covers both
territories. When unqualified, ETJ usually refers to such an agreed
jurisdiction, or it will be called something like "claimed ETJ". 11
11 http://en.wikipedia.org/wiki/Extraterritorial_jurisdiction

P a g e | 20

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.12
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.13

(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
12 Malcolm Shaw, p. 576.
13 Id.

P a g e | 21

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.

P a g e | 22

(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.14

14 3 http://www.britannica.com/EBchecked/topic/291011/international-law/233512/Jurisdiction

P a g e | 23

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.15

15 Harris, D.J. (ed) 2004 Cases and Materials on International Law 6th Ed. at p. 99. Sweet and Maxwell, London ]

P a g e | 24

(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
Jordans sovereignty, and measures can be taken in the areas by Israel to enforce
such laws.16
16 supranote 15

P a g e | 25

(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. It is justified on the basis of protection of States vital interests, particularly

P a g e | 26

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.
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. 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. 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

P a g e | 27

Hijacking of aircraft, violation of human rights and terrorism, have been added to
the list of international crimes.17
Today under the universality principle, each State and every State has
jurisdiction over any of the international crimes committed by anyone anywhere.

https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/7state-jurisdiction
17

P a g e | 28

BIBLIOGRAPHY
WEB LINKS
1) www.mu.ac.in/myweb_test/Politicals%20Science%20-%20I%20pdf
2) references-definitions.blurtit.com/1942729/what-are-theelements-of-the-state-and-its-definition
3)http://www.justice.gov.tr/e-journal/pdf/LW7081.pdf
4)WWW.WIKIPEDIA.COM
5)http://www.wisegeek.com/what-is-state-jurisdiction.htm
6)
http://ruwanthikagunaratne.wordpress.com/2011/04/13/jurisdiction
/

BOOKS USED
A) Prasad Mahesh Tandon Public International Law and human
Rights ;reprint 2004;Allahabad Law agency.
B) DAS P.K. , International Law Documents ; universal law
publishing co. pvt ltd 2013 Ed.
C) Harris David , cases and Materials on International Law ; Sweet
and Marxwell ; 2010 7th edition.

P a g e | 29