DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PUBLIC INTERNATIONAL LAW

TERRITORIAL SOVEREIGNTY AND DOMESTIC JURISDICTION

NAME OF THE FACULTY

G. ARTHI

19LLB102 & Semester V

 ACKNOWLEDGEMENTS

I would like to express my gratitude to my professor, for the support and guidance. The help and
comments were helpful in making the research.  I have tried to implement the suggestions given
and make the project to the best of my abilities.

1
 TABLE OF CONTENTS

Abstract…………………………………………………………………………….3

Domestic Jurisdiction………………………………………………………………4

The Principle of Domestic Jurisdiction…………………………………………….6

Territorial
Sovereignty……………………………………………………………...8

The State as The Primary and The Original Subject of The International
Order…...10

Protective Principle……………………………………………………….……….12

The Legal Relationship Between State and Territory: The Theories on Territorial
Sovereignty……………………………………………………………….……….14

Conclusion………………………………………………………………………...16

2
 ABSTRACT

The “phrase domestic jurisdiction, as it has been employed in international law theory and
practice, primarily since the League of Nations Covenant, is not a novel legal notion in terms of
content. Indeed, the word sovereignty in the sense of the State's supreme power over its territory
and population within the framework of international law obligatory on the State means nothing
else or anything else. Domestic jurisdiction relates to what some authors referred to as internal
sovereignty. Although it is translated as so in the Covenant, this phrase does not mean the same
thing as the French language; compétence exclusive de l'Etat.

Exclusive competence of the State may mean the scope of the internal as well as of the external
freedom of action of a State, unlimited by international law. Domestic jurisdiction only refers to
the exclusive internal competence of the highest legislative, judicial, and administrative
(executive) authorities of the State. In practice, however, the exclusive competence is understood
and interpreted in the sense of the domestic jurisdiction, i.e., as the exclusive competence in
internal matters.”

3
 DOMESTIC 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. His authority
involves the powers to prescribe the rules of law, to enforce the prescribed rules of law and to
adjudicate.1

There is a need to study all these topics related to jurisdiction principle so that the sovereignty of
states can't be infringed or harmed whether it is willful or not. We come to know about so many
things under international law about this present topic like the actual definition of state
jurisdiction, the concept of extraterritoriality and more similar things.2

The breadth of a State's internal as well as exterior freedom of action, as defined by international
law, may be referred to as exclusive competence of the State. Domestic jurisdiction exclusively
refers to the highest legislative, judicial, and administrative (executive) authority of the state's
exclusive domestic competence.

However, in practice, exclusive competence is understood and construed in the context of

domestic jurisdiction, i.e., exclusive competence in internal issues. 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.3 

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.”

1
https://blog.ipleaders.in/jurisdiction-in-international-law-details-you-must-know/
2
Ibid.
3
https://unijuris.sites.uu.nl/wp-content/uploads/sites/9/2014/12/The-Concept-of-Jurisdiction-in-International-Law

4
Liechtenstein v Guatemala4

In this case, “Nottebohn- a German lived in Guatemala for 34 years. He has his German
citizenship and then he also applied for Liechtenstein citizenship a month after the outbreak of
World War ll. 

The application was approved by Liechtenstein. After this approval, he travelled to Liechtenstein
and during his return to Guatemala he was not allowed to enter because he was deemed to be a
German citizen. Liechtenstein filed a suit before the court on Guatemala to allow him as a
citizen. 

The Court held that granting citizenship is solely the concern of the granting nation. But in this
case, there is no relationship between Liechtenstein and Nottebohn. This happened because of
the war that they became two nations. Hence, the court said that Nottebohn wasn’t forced by the
Guatemala country to recognise him as a citizen and in result, the suit was dismissed.”

UK v Norway5 (North Atlantic Fisheries Case)

In this case, the UK requested the International Court of Justice (ICJ) to determine how far
Norway’s territorial claim extended to sea and to provide some compensation because Norway
interfered in the fishing vessel of the UK and also claimed that Norway’s claim to such extent
was against International Law. The Court held that Norway’s claim to the waters was consistent
with the international law regarding the part of the sea space.

4
I.C.J. 1955, I.C.J., 4 (1955)
5
[1951] ICJ 3

5
 THE PRINCIPLE OF DOMESTIC JURISDICTION

It follows “from the nature of the sovereignty of states that while a state is supreme internally,
that is within its own territorial frontiers; it must not intervene in the domestic affairs of another
nation. This duty of non-intervention within the domestic jurisdiction of states provides for the
shielding of certain state activities from the regulation of international law. State functions which
are regarded as beyond the reach of international legal control and within the exclusive sphere of
state management include the setting of conditions for the grant of nationality and the elaboration
of the circumstances in which aliens may enter the country.

However, the influence of international law is beginning to make itself felt in areas hitherto
regarded as subject to the state’s exclusive jurisdiction. For example, the treatment by a country
of its own nationals is now viewed in the context of international human rights regulations,
although in practice the effect of this has often been disappointing.6

Domestic jurisdiction is a relative concept, in that changing principles of international law have
had the effect of limiting and reducing its extent 7 and in that matters of internal regulation may
well have international repercussions and thus fall within the ambit of international law.” This
latter point has been emphasized by the International Court of Justice. In the Anglo-Norwegian
Fisheries case8 it was stressed that: “although it is true that the act of delimitation [of territorial
waters] is necessarily a unilateral act, because only the coastal state is competent to undertake
it, the validity of the delimitation with regard to other states depends upon international law.”

The “principle was also noted in the Nottebohm case, where the Court remarked that while a
state may formulate such rules as it wished regarding the acquisition of nationality, the exercise
of diplomatic protection upon the basis of nationality was within the purview of international
law. In addition, no state may plead its municipal laws as a justification for the breach of an
obligation of international law.”

6
Shaw, Malcolm N. International Law. Cambridge, UK: Cambridge University Press, 2008, Chapter 13, p 265.
7
Nationality Decrees in Tunis and Morocco case, PCIJ, Series B, No. 4, 1923, pp. 7, 23–4; 2 AD, pp. 349, 352.
8
ICJ Reports, 1951, p. 116; 18 ILR, p. 86

6
Accordingly, the dividing line between issues firmly within domestic jurisdiction on the one
hand, and issues susceptible to international legal regulation on the other, is by no means as
inflexible as at first may appear. Article 2(7) of the UN Charter declares that: “Nothing
contained in the present Charter shall authorize the United Nations to intervene in matters
which are essentially within the domestic jurisdiction of any state or shall require the
members to submit such matters to settlement under the present Charter.”

This “paragraph, intended as a practical restatement and reinforcement of domestic jurisdiction,

has constantly been reinterpreted in the decades since it was first enunciated. It has certainly not
prevented the United Nations from discussing or adopting resolutions relating to the internal
policies of member states and the result of over fifty years of practice has been the further
restriction and erosion of domestic jurisdiction.

The expanding scope of United Nations concern has succeeded in further limiting the extent of
the doctrine of domestic jurisdiction. Nevertheless, the concept does retain validity in
recognizing the basic fact that state sovereignty within its own territorial limits is the undeniable
foundation of international law as it has evolved, and of the world political and legal system.”

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 TERRITORIAL SOVEREIGNTY

The “theoretical discussion surrounding the concept of effectiveness and its definition show how
effectiveness lies at the core of the existential and foundational questions of law of nations that
are apparent if we consider one among the key legal concepts of the law of nations, that of
territorial sovereignty, whose understanding is crucial to a correct conceptualization and analysis
of unlawful territorial situations.

Territorial sovereignty normally denotes a political and legal expression, which designates a
relationship of power, supremacy or independence between an actor, the state, and an object, the
territory. The implications of the concept of effectiveness for law of nations issues concerning
the question of unlawful territorial situations are going to be considered, namely statehood,
territorial sovereignty and military occupation. The qualitative expression of the connection
between state and territory, together constitutes what’s called territorial sovereignty.

Territory and its normative translation, that’s territorial sovereignty, stay as the basis of up so far
international legal order, as Article 2 (1) of the United Nations Charter solemnly declares.9

Territorial Sovereignty offers a qualified defence of a territorial states system. Should we see this
mode of political organization as just a firmly rooted historical contingency? Or are there ethical
principles that might support or legitimate it?

The question is significant because in recent years, cosmopolitan theorists have offered systemic
critiques of the territorial states system, as sustaining and reproducing problems of war,
unfreedom, inequality, and failures of collective action.

Because of these problems, some hold that the territorial states system is radically unjust and
ideally should be replaced by a different form of political organization: perhaps a global
democracy; a nonterritorial, polycentric political order; or a world in which state sovereignty was
drastically curtailed.10 While these proposals are currently politically unviable, realizing them
might be a valid long- term goal. After all, the modern territorial states system is a historically
9
https://lawcorner.in/territorial-sovereignty-under-international-law/
10
Unlawful Territorial Situations in International Law chapter 3) Statehood and Territorial Sovereignty, Enrico
Milano

8
contingent political form, and there have been many far- reaching changes in organization over
the course of human history. Given that engaged efforts to transform the territorial states system
may be possible, it is worth considering the evaluative stance we should take towards it.”

General Characteristics of Territorial sovereignty

Irrespective of the varied theories on the legal function of territory there’s widespread agreement
that consistent with the principle of territorial sovereignty a state exercises full and exclusive
authority over its territory. Max Huber, within the Palmas Island Arbitration award, has affirmed
this general principle as follows;

“Sovereignty within the relations between States signifies independence. Independence in regard
to a number of the planet is that the proper to exercise therein, to the exclusivity of the opposite
States, the functions of a State”

Consistent with the International Court of Justice between independent States, respect for

territorial sovereignty is a crucial foundation of diplomacy. 11 “Territorial sovereignty therefore
implies that subject to applicable customary or conventional rules of law of countries, the
respective State alone is entitled to exercise jurisdiction, mostly by subjecting the objects and the
persons within its territory to domestic legislation and to enforce these rules. Moreover, the State
is entitled to manage access to and egress from its territory. The latter right seems to also apply
to all or any or any kind of communication. Territorial sovereignty protects a State against any
kind of interference by other States.”

11
Ibid.

9
 THE STATE AS THE PRIMARY AND THE ORIGINAL SUBJECT OF
THE INTERNATIONAL ORDER

The international order, “because the other legal order consists by a plurality of subjects. The
latter could even be roughly divided into territorial and non-territorial entities. Among the
territorial ones, the State stands out, because the first and original subject of the contemporary
international order. The consubstantiality between the law of countries and State is so obvious
that it’s often been questioned in doctrine which of the two was the first to look from a
chronological point of view.

According to a standard division of your time, with the Peace of Westphalia in 1648, there was
the definite completion of a process that had begun four centuries before, to mention the smallest
amount. In other words, the State, as a territorial entity, emerges as a defined and first subject of
the contemporary international order. This horizontal character of the new international order
presupposes the centrality of the territory and thus the effective deployment of sovereign powers
over it.12”

The Different Components of the State’s Territory

Traditionally, the state’s territory consists (ab inferos et usque ad sidera) by land territory
(mainland) and its subsoil, internal water and their soil and subsoil, and by the subjacent column
of air (the aerial or atmospheric space).

These “spaces constitute the state’s territory properly speaking. It must be distinguished by other
spaces on and within which riparian States exercise rights and competencies which, although
derived from States’ sovereignty, must not be confused themselves with the latter, thereby
preventing the subsumption within the concept of territory just like the ocean bottom and thus
the Exclusive Economic Zone (EEZ).13

12
Theories on Territorial Sovereignty: A Reappraisal, Giovanni Distefano, Université de Neuchâtel, May 2009
13
Wolff Heintschel von Heinegg, Legal Implications of Territorial Sovereignty

10
As far because most features of the territory are concerned, it’s generally recognized by the
doctrine and consolidated practice that the territory must be (a) Stable, (b) Delimitated, (c)
Continuous.

The primary characteristic refers to the permanence of the residing population, thus excluding
the phenomenon of nomadism. With regard to the opposite, it’s to not be interpreted in a
restrictive manner when it’s affirmed that the state’s territory possesses to be clearly delimited.
Indeed, there exist certain States whose borders aren’t clearly limited in their entirety and
nevertheless, their existence isn’t put into question. At last, the third one refers to the continuity
of the State’s territory.”

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 PROTECTIVE PRINCIPLE

The protective principle identifies that a sovereign State can adopt a statute that criminalises act
or any conduct which occurs outside the borders and where that conduct affects the sovereign
State. Under this principle, a nation can adopt laws related to crimes which obstruct the functions
of government or pressurize its security.

Article 51 of the UN Charter

Article 5114 provides the countries to engage in self-defence and against an armed attack. A case
relating to Self-Defence is:

Nicaragua v USA15

In this “case, in 1979, when a pro soviet government called the Sandini States came to power in
Nicaragua, the US authority were alarmed, as this was the height of the cold war. In 1981, the
Reagan administration decided to support the rebel forces in Nicaragua called Somosistas, who
was a USA citizen.

The Central Intelligence Agency ran extensive illegal and secret operations targeting the
Nicaraguan army and air forces, supplied arms, ammunition, money and frequently kidnapped
Nicaragua citizens. Nicaragua citizens brought a case against the USA for violating the Treaty of
the UN Charter.

The Court held that US contested that ICJ did not have jurisdiction to hear this case but ICJ
nevertheless proceeded with the case because of the 1955 treaty of friendship between Nicaragua
and the USA.

The ICJ found out that the USA had knowingly and intentionally violated the provisions of the
UN Charter, general rules of International Law and had clearly violated the territorial
sovereignty of Nicaragua. In 1992, because of tremendous pressure Nicaragua took back the
complaint and unofficially apologized to the US Government.”

14
https://legal.un.org/repertory/art51
15
ICJ (1986)

12
Abdul Kader Mahomed Jhaveri v Union of India16

In this case, “the petitioner was a foreign national and a citizen of the Republic of South Africa.
The passport issued by the Republic of South Africa on the basis of which he came to India and
in the meantime, passport expired and again he asked the Republic of South Africa for the issue
of a new passport which was still valid.

The respondent who is the authority, initiated the legal proceedings against him for the breach of
the provisions of the Foreign Exchange Regulations Act17, that he is not a citizen of India but a
resident of India.

He carries on his business activity in India. But had done without the permission of the Reserve
Bank. And it was contended that the petitioner should be penalised for the breach of the
provision. Due to the pending proceedings, the passport has been seized by the respondent. The
petitioner contended that the seizure was null and void and without the permission of any
jurisdiction. So the respondent should be directed to return the passport.

The commission of inquiry headed by Justice Shah stated that the period for which the passport
was impounded cannot be said to be definite and certain and it may extend for an indefinite time.
This would clearly make the validity of an order unreasonable and the validity of the passport of
the petitioner is confirmed by the Central Government. The duration of the validation will not
exceed more than period of six months from the date of the decision that may be taken on the
petitioner’s representation.”

16
(1987) 1 GLR 537
17
Foreign Exchange Regulation Act, 1973

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 THE LEGAL RELATIONSHIP BETWEEN STATE AND TERRITORY:
THE THEORIES ON TERRITORIAL SOVEREIGNTY

When scholars speak about the legal relationship between State and territory, they refer to the
legal nature of the state’s territory in international law. “Leaving aside the problem, although
valid, of the legal nature of territory in national order, there are four theories – developed by
international doctrine – which try to explain the aforementioned legal question. Before analyzing
these theories, however, it is worth clarifying the notion of sovereignty.

The two pillars of the contemporary international legal order are the principle of sovereignty and
the already examined principle of territoriality. Both are derived from the horizontal structure of
the international system, which has started to come into being during the twelfth century. The
dominant paradigm of sovereignty absorbs the latter to the concept of independence.”

The principle of territoriality presupposes and implies a subjective right on the State, that is to
say the ius excludendi alios;

“Sovereignty in the relations between States signifies independence. Independence in regard

to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the
functions of State.18”

Thus, “the territorial sovereignty is conceived as the States’ faculty to pretend that other States
(as well as other international subjects of law) abstain themselves from undertaking the functions
related to States’ sovereignty.

This judicial situation, or subjective right of exclusion, is opposable erga omnes and its essential
requirement is based on the effectiveness of the sovereignty that a state exercises in its own
territory and within its boundaries.

The territorial sovereignty is thus the link between the State and its own territory and this is
precisely due to the horizontal structure of the modern international legal order. However,

18
P.C.A, Arbitration Award, 4 April 1928, in RIAA, Vol. II, at. 838.

14
sometimes these normative categories collide with territorial situations which go beyond the
cultural context where they have been elaborated, that is Europe.

The link between sovereign and territory – meaning the territorial sovereignty – was displaced in
that case by the personal relationship; lien d’allégeance personnel- between the sovereign and
the abovementioned populations. Consequently, the sovereign exercised only one of the two
competences composing the notion of sovereignty, namely the ratione personae one, whereas
the territorial competence was absent precisely because of lack of a territory. 19 From the
foregoing, it stems that the concept of territorial sovereignty adequately refers only to an order of
an exclusive territorial character, as it is the case of the international one.”

19
I.C.J, Advisory Opinion, October 1975, in I.C.J. Reports, 1975, at 12 ff

15
 CONCLUSION

Although “sovereign immunity is in various domestic statutes proclaimed as a general principle,

subject to wide-ranging exceptions, it is, of course, itself an exception to the general rule of
territorial jurisdiction. The enumeration of non-immunity situations is so long, that the true
situation of a rapidly diminishing exception to jurisdiction should be appreciated. In many
instances, it has only been with practice that it has become apparent how much more extensive
the submission to jurisdiction has become under domestic legislation. In conclusion, express
provisions need to be made for the lifting of immunity in cases where the persons accorded
immunity commit crimes against humanity, for example in the Vienna Convention on
Diplomatic Relations. This will ensure that diplomats and states do not engage in misdemeanors
and offences with impunity.

A leading role is being played by the sovereign states worldwide, not matter they have
multilateral and centralized agreement, various treaties and conventions among them. To avoid
the unnecessary chaos and conflicts over there borders on the territory the states must have
friendly relationship with each other. The International laws and concept of state and territorial
jurisdiction helps a lot and play a major role in resolving these kinds of disputes among
sovereign states and all the states are somehow bound to follow the rules laid down by the
various provisions of international laws in order to maintain the peace among them.”

16