STATE JURISDICTION

  Introduction 

State jurisdiction is the power of a state under the law of nations to control persons and property  by its municipal law. It includes both the facility to prescribe rules and also the power to enforce  them. the foundations of State jurisdiction identify the persons and also the property within the  permissible range of a state’s law and its procedures for enforcing the law. A State may regulate  its jurisdiction by legislation through its courts or by taking executive or administrative action.  Thus the jurisdiction of a State isn't always a co-incident with its territory Case of KTMS Abdul  Cader et al v/s Union of India-1977, the court held that act has no extraterritorial application  and hence the regime has no power under the Act to pass orders of detention against persons  who at the time when the orders were made weren't within India but were out-side its territorial  limits. 

In general, every State has exclusive jurisdiction within its territory but this jurisdiction isn't  absolute because it's subject to certain limitations imposed by the law of nations. Thus in  practice, it's not always necessary that a State may exercise jurisdiction in its territory on the  opposite hand in some circumstances may exercise jurisdiction outside its territory. Though  the link between jurisdiction and sovereignty is close jurisdiction isn't coextensive with State  Sovereignty. Each state has normal jurisdiction over all persons and things within its territory. Illustration: A French armed public ship flying the flag of France was within the British body  of water when M, the servant of the ship committed the offence of murder by shooting dead D  the captain of the ship. Both M&D were British nationals. During the trial that came about that  country, courts had no jurisdiction to do him for the murder committed on board a French  cruiser flying the French flag. The defence cannot succeed because he theory that the general  public ship of a state should be treated to be a floating portion of that state has long been  discarded. Secondly, the offence was committed within the territory of England. Thirdly  seeking the great office of British police and medical care amounted to a waiver of the  immunity. Thus M may be tried by country Court. 

Types Of Jurisdiction: Prescription And Enforcement

There are two key aspects of state jurisdiction: jurisdiction to prescribe and jurisdiction to  enforce. it's also possible to speak of a subsidiary sort of prescriptive jurisdiction, being the  jurisdiction to adjudicate, although in reality adjudication doesn't form – and isn't usefully  spoken of – as a definite head of jurisdiction. Prescriptive and enforcement jurisdiction reflects  the legislative, judicial and executive branches of the state. 

1. Prescriptive Jurisdiction 

Prescriptive, or legislative, jurisdiction describes the competence of states to make norms,  recognized as valid by the law of nations. This power is binding within a state’s territory and,  under certain circumstances, beyond. National law may cover any subject material, but in  certain areas, a state has exclusive jurisdiction which will not be interfered with by other states.  A state might not try to alter the legislative, judicial or administrative framework of a far off  state by so legislating. While this may be ineffective, because the legislating state would haven't  any thanks to enforcing its ‘reforms’, the mere act of legislating would amount to an  interference with the topic state’s sovereignty. 

Legislation may provide for criminal sanctions to be imposed on people with a sufficient  reference to the legislating state. this needs the exercise of the jurisdiction to adjudicate to see  guilt, and enforcement jurisdiction to impose the penalty. The prescriptive jurisdiction, during  this case, is employed to define the offence, penalty, procedure for trial, and so on. While  exercised most often within the state’s territory, it can even be wont to bind a state concerning acts committed abroad. Foreign nationals, outside the jurisdiction, who commit acts damaging  to the regulating state, may additionally be subjected to the present jurisdiction under the  protective principle. 

2. Enforcement Jurisdiction 

Enforcement, or executive, jurisdiction describes a state’s authority to act coercively to enforce  its law. this manner of jurisdiction could also be freely exercised only on the territory of the  enforcing state thanks to its coercive nature. Employment of enforcement jurisdiction on the  territory of another state without consent or under another ‘permissive rule’ of the law of  nations is prohibited as interference within the sovereignty of another state. 

A classic example of this is often the kidnapping by Israeli agents of Nazi from Argentina in  1960. While this overreached Israel’s enforcement jurisdiction, being undertaken on the QT 

and without Argentina’s consent, the Supreme Court of Israel ruled that the invalidity of the  arrest under the law of nations didn't vitiate its jurisdiction to do him under Israeli law (a  position consistently maintained in contemporary national and international law). However,  the UN SC considered the interference with Argentinian sovereignty a danger to international  peace and security and ordered Israel to pay reparations. The prohibition on such interference  with the ‘domestic jurisdiction by any state’ is inexplicit the principle of the sovereign equality  of states and is reflected in Article 2(7) of the Charter of the world organisation. 

Exemption To The Territorial Jurisdiction 

There are some exceptions of the exercise of jurisdiction which recognizes the protective  jurisdiction of a state to handle foreign nationals acting in their country against its security and  integrity:- 

1. Diplomatic Agents: Diplomatic agents enjoy certain privileges and immunities. they're  immune from the jurisdiction of the civil and criminal courts of the receiving State. during this  connection, the old view was that the diplomatic agents enjoy these immunities and privileges  because they were deemed to be outside the jurisdiction of the receiving State. Within times,  this theory has been discarded. Modern view diplomatic agents enjoy certain immunities and  privileges thanks to the special functions they perform. This was affirmed in a very case by Ex 

parte Petroff-1971 by the Supreme Court of Australia. 

2. Foreign Embassies: Foreign embassies are often considered to be outside the jurisdiction  of the State within which they're situated. For the sake of convenience, embassies are to be  treated as a component of their home States. the proper view, however, is that though not a part  of their home States, embassies enjoy certain immunities thanks to the special functions  performed by the diplomatic agents. 

3. Foreign Sovereigns: Foreign sovereigns are often treated to be outside the jurisdiction of  other states and possess many privileges and immunities. within the case of Christina-1938,  Lord Wright observed that there are general principles of law consistent with which a sovereign  state is held to be immune from the jurisdiction of another sovereign State. 

The principle of immunity of Foreign Sovereign was developed within the early years of the  nineteenth century. within the case of the Schooner Exchange v/s McFadden-1812, A French  Naval Vessel stayed in Philadelphia for repairs after a storm. Some persons sought possession 

of the ship on the bottom that truly the ship Schooner Exchange. An American ship which they  owned and was seized by French on the High Seas in 1810 in pursuance of a Napoleonic  Decree. The U.S. Govt. however requested the court to refuse jurisdiction on the bottom of  immunity. Court held that the vessel was exempt from U.S. Jurisdiction. 

The jurisdiction of the state within its territory is necessarily exclusive and absolute. it's liable  to any limitation not imposed by it. In another case of Vavasseur v/s Krupp-1878, the plaintiff  contended that the Japanese Government had violated his patent rights and so he demanded  that the delivery of the products be stopped. But the court had no jurisdiction over the property  of the foreign sovereigns more especially with what we call the general public property of the  State of which he's sovereign. 

– Shishir Yadav 

Faculty of Law, University of Lucknow