FACTS

Two nationals of State ‘A’ meet at State ‘B’ and decide to plant an
explosive device on a commercial air craft registered in State ‘C’. The
explosive was planted when the aircraft was in state ‘C’ and the air craft
explodes while it was in ‘D’ killing all, majority of whom were nationals of
‘B’. Discuss the jurisdiction of states in this case.
ISSUE
 Which state have jurisdiction to try the case?
LAWS APPLIED
As per International Law, criminal jurisdiction can be determined on the
basis of five principles. The importance of these jurisdictional principles is that
they are accepted by all states and the international community and are said to
be consistent with international law. They are the Territorial Principle of
Jurisdiction, The Nationality Principle, the Passive Personality Principle, the
Protective Principle and the Universality Principle. Though it said that these
principles are consistent with international law, they are not consistent with
each other. Inconsistency coupled with an overlapping nature is what dilutes
these principles.

  The Territorial Principle can be defined as a territorial basis for the

exercise of jurisdiction. It reflects one aspect of the sovereignty exercisable by a
state in its territorial home, and is the indispensable foundation for the
application of the series of legal rights that a state possesses. In other words, a
nation state can take action against any offence committed or consummated
within its territory. All such crimes committed within the territorial jurisdiction
of a state may come before the municipal courts and the accused if convicted
may be sentenced as per the rule of law in that nation state. Further, this applies
even when the offenders are foreign citizens. However, this principle is not
foolproof, as per the European Court of Human Rights in Loizidou v. Turkey, it
was observed that although jurisdiction is primarily and predominantly
territorial, it is not inevitably and exclusively so and states are free to consent to
arrangements whereby jurisdiction is exercised outside the national territory and
whereby jurisdiction by other states is exercised within the national territory.
Thus, while jurisdiction is closely linked with territory it is not exclusively so.

The second principle is the Nationality Principle. The concept of

nationality can be described as the link connecting the state and the people it
includes in its territory. Since the state possesses sovereignty and jurisdictional
powers over its territory and its people, it can exercise its jurisdiction over the
acts committed by its people in any state or territory in accordance with
international law. Common law countries tend to restrict the crimes over which
they will exercise jurisdiction over their nationals abroad to very serious ones.
In the UK this is generally limited to treason, murder and bigamy committed by
British nationals abroad. Further, the common law countries have never
protested against the extensive use of the nationality principle to decide
jurisdiction in criminal matters by other states. The Nationality principle though
is generally accepted is not infallible. As per this principle, nation states can
claim jurisdiction over the offences committed by its nationals but other states
wherein the crime has been consummated within their soil may also seek
territorial jurisdiction. They may also question the sincerity with which the
accused will be penalised. An example of nationality jurisdiction is the US
prosecution of Lieutenant William Calley for his role in the My Lai massacre in
Vietnam. This case also provides an example of one the criticisms often laid at
the door of nationality jurisdiction that prosecution by states of their own
nationals for war crimes may tend to be overly lenient.

  Next is the most controversial jurisdictional principle in International

criminal law, the Passive Personality Principle.  Under this principle, a state
may claim jurisdiction to try an individual for offences committed abroad which
have affected or will affect nationals of the state. The leading case on this
particular principle is the Cutting case in 1886. The overall opinion has been
that the passive personality principle is rather a dubious ground upon which to
base claims to jurisdiction under international law and it has been strenuously
opposed by the US and the UK, although a number of states apply it. It has been
opposed as the concept of passive personality favours powerful States at the
expense of weaker States. There have been concerns that it could lead to people
being subjected simultaneously to the laws of many different States, which
would include prohibitions of which they are understandably unaware.

The fourth principle of jurisdiction is the Protective Principle of

jurisdiction. This principle provides that states may exercise jurisdiction over
aliens who have committed an act abroad which is deemed prejudicial to the
security of the particular state concerned. It is a well-established concept,
although there are uncertainties as to how far it extends in practice and
particularly which acts are included within its net. The principle is justifiable on
the basis of protection of a state’s vital interests, since the alien might not be
committing an offence under the law of the country where he is residing and
extradition might be refused if it encompassed political offences. However, it is
clear that it is a principle that can easily be abused, although usually centred
upon immigration and various economic offences, since far from protecting
important state functions it could easily be manipulated to subvert foreign
governments. Nevertheless, it exists partly in view of the insufficiency of most
municipal laws as far as offences against the security and integrity of foreign
states are concerned.

Although the principle could be used to justify the assertion of

jurisdiction over aggression, and was asserted by Israel as one of the bases of
jurisdiction over Adolf Eichmann, practically all its imaginable uses in relation
to international criminal law overlap with territorial, nationality or passive
personality jurisdiction. The assertion of the protective principle in Eichmann
was criticized on the basis that, irrespective of its right to prosecute him, the
State of Israel did not exist during the Holocaust.

The final principle of jurisdiction recognized by International criminal

law is the Universality Principle of jurisdiction. Under this principle, each
and every state has jurisdiction to try particular offences. The basis for this is
that the crimes involved are regarded as particularly offensive to the
international community as a whole. There are two categories that clearly
belong to the sphere of universal jurisdiction, which has been defined as the
competence of the state to prosecute alleged offenders and to punish them if
convicted, irrespective of the place of commission of the crime and regardless
of any link of active or passive nationality or other grounds of jurisdiction
recognised by international law. Therefore, crimes which can lead the
universality principle to be invoked are piracy, war crimes and crimes against
humanity. This principle of jurisdiction though is easy to invoke, it is difficult to
substantiate. The principle is based on the presumption that offences such as
war crimes and crimes against humanity affect the international legal order as a
whole. Though some states may recognise this threat, not all states will respond
fairly and effectively to allegations of international crimes. Furthermore,
international law grants all States the right to prosecute international crimes..

CRITICAL ANALYSIS

Conflict in jurisdiction therefore may only occur where the same rule of
law is interpreted or applied in a divergent manner by different international
judicial bodies, a situation, which will be rather the exception, since the
majority of international judicial bodies have been created within a special, even
very special, context to decide disputes arising in this context. Nevertheless
such conflicts are possible.In international law, sovereignty is a prized virtue, a
virtue which becomes a vice in deciding as to which particular jurisdictional
principle will precede in a case where conflict exists between two or more
jurisdictions. Though it is difficult to decide as to which jurisdiction shall be
invoked, certain cases have laid down a possible solution. In the case of In US
v. Yunis (No. 2)88 a Lebanese citizen had hijacked a Jordanian airliner and was
arrested by US agents in international waters. Further, he was prosecuted in the
US for his alleged involvement in the hijacking. USA had based its
jurisdictional claim on the basis of the universality principle and the passive
personality principle. The International Court of Justice observed that though
the passive personality was the most controversial of the jurisdictional principle
in international law, ‘the international community recognises its legitimacy’.
Throughout the years, US had opposed this principle but after this incident it
was accepted by US and the international community. In the instant case, there
was a friction between two jurisdictional principles, which was finally resolved
by accepting the passive personality principle by the international community.
This principle is now invoked in case of terrorist and internationally condemned
crimes.

iN this case the Two nationals of State ‘A’ meet at State ‘B’ and decide to
plant an explosive device on a commercial air craft registered in State ‘C’. The
explosive was planted when the aircraft was in state ‘C’ and the air craft
explodes while it was in ‘D’ killing all, majority of whom were nationals of
‘B’all the states are affected by the act of the person so every state have
jurisdicyion to try the case.

CONCLUSION
 Jurisdiction can be defined as a concept which concerns the power of the
state under international law to regulate or otherwise creates an impact upon
people, property and circumstances. It further reflects the basic principles of
state sovereignty, equality of states and non-interference in domestic affairs.
The most significant aspect of this definition is that it is based on the
independence of a state’s sovereignty. This means that a State can construe an
incident as per its own Rule of Law or municipal law, which may or may not be
consistent with International Law.
 Q2

FACTS

P who ruled ‘C’ was wanted by a court in ‘S’ for charges of torture,
kidnapping and mass disappearances. When he was in ‘L’ for treatment he was
arrested and produced before the courts in ‘L’. He claimed sovereign immunity
from prosecution.

ISSUE

 Whether P can claim sovereign immunity?

LAWS APPLIED

State immunity, or sovereign immunity, is an essential part of the national

laws of many states worldwide. It is based on the theory of sovereign equality
of the states, which means that the state has no right to question the actions of
another state as per national law standards.

It is very closely related to the equality of states and deals with the issues
of a foreign sovereign being challenged in the local courts of other states. This
is often expressed by the maxim “par in parem non habet imperium” which
means an equal has no power over an equal. But just like “all men”, the
sovereign is equal only before the law. It protects an entity in two ways:

1. Immunity from judgment (also known as immunity from

suit)
Immunity from judgment or a suit is essential and important from the
state’s point of view as it is believed that it would be inappropriate for one state
court to sue another state under its jurisdiction. In order to immunize one’s state
entities, states take over the guard of sovereign immunity. However, this
immunity can be waived by the state entity as per its discretion. 

2. Immunity from execution

The states also have a right to immunity from execution which precludes
authorities to seize the property of another state in order to satisfy the demands
of creditors, arbitral awards, or any similar court decisions. However, just like
above this can also be waived by the state as per the circumstances.

This first reference of the principle of state immunity was recognized by

the United States Supreme Court in its landmark 1812 judgment of
the Schooner Exchange V McFadden. Chief Justice Marshall voiced the
principle:” that by the definition of sovereignty, a state has absolute and
exclusive jurisdiction within its territory but that it could also be implied or
express consent waive jurisdiction”.

Since then, State Immunity was recognized and became part of the
general practice in the United States and the majority of other modern European
States.

CRITICAL ANALYSIS

Sovereign immunity, or state immunity, is a principle of customary

international law, by virtue of which one sovereign state cannot be sued before
the courts of another sovereign state without its consent. Put in another way, a
sovereign state is exempt from the jurisdiction of foreign national courts. Thus,
the question of immunity is at the same time a question of jurisdiction: only
when the court already has jurisdiction will it become meaningful to speak of
immunity or exemption from it. For this reason, sovereign immunity is also
referred to as “jurisdictional immunity” or “immunity from jurisdiction.”
Because different types of legal proceedings may be brought against foreign
states, sometimes courts find it necessary to refer to jurisdictional immunities of
states. In history, the words “exterritoriality” and “extraterritoriality” were also
used in this sense. The current law of state immunity has developed
predominantly as a result of cases decided by national courts in legal
proceedings against foreign states. Doctrinal debates among the scholars are of
much later occurrence and consist mainly of comments on decided cases. The
fact that the law of state immunity is primarily judge-made law gives judicial
decisions a prominent position among the possible sources of international law
as contemplated by Article 38 (1) of the Statute of the International Court of
Justice; instead of being a “subsidiary means for the determination of rules of
law,” they are now a main source of legal rules. This feature of the law also
shapes and determines the contours of a research guide on sovereign immunity.
As far as possible, the leading cases in the field must be introduced first, so as to
provide a firsthand view of the law and to place the relevant doctrinal debate in
its proper context.

In this case he has commited offence in jurisdiction of Court s ,he can be

only trialed by court ‘s’ so he should be handed over to s,The court L have no
jurisdiction to prosecute him.

CONCLUSION

Failing to recognize and consider adequately the question of sovereign

immunity can have serious consequences. Therefore, parties dealing with
foreign states or state-owned entities must ensure that they have comprehensive
research and covering all relevant jurisdictions, including the jurisdiction where
proceedings might be brought in case of dispute as well as where enforcement
against state assets might be beneficial. Contractual terms must be carefully
drafted to avoid waiving the sovereign immunity.