Jurisdiction In International Law

Jurisdiction In International Law

Palak Sinha_JudicateMe


This Blog is written by Palak Sinha from Symbiosis Law School, NoidaEdited by Viral Agarwal.



Jurisdiction refers to the power or the authority given to the State, to deal with legal matters and circumstances within its territory. It is the right to enforce laws through the legislative, judiciary, or executive actions. According to the natural territorial principle, the State has exclusive rights to deal with all the criminal matters within its territory. But, this principle is modified to permit officials of one state to act for another State in certain cases. The territorial jurisdiction of a State controls its authority over persons, property (land), national aircraft and airspace, territorial sea, national vessels. This permits the State to exercise its control on matters within its territory and also on the matters affecting its territory.

International Law is known as the Law of Nations or the Public International Law set rules, principles, norms, and standards for establishing strong and peaceful links between nations. The International Law addresses criminal matters only and leaves the civil jurisdiction to the national level. The aspects of the Public International Law are strongly linked to jurisdiction and sovereignty. The sovereign independence of a State is ensured by the controlling authority of jurisdiction. There are many sources for the derivation of International Law at the global stage. It fairly includes the international customs, treaties by nations, general guidelines by international bodies, principles of law recognized by the nation’s legal systems.

The concept of Jurisdiction has acquired a prescribed dimension in the fields of international human rights. The treaties in this field permit the State to secure the rights of individuals within their jurisdiction, even in cases when they are outside their territory. For like, high seas are traditional, beyond the territorial jurisdiction of any State, and are open to all. But, the creation of maritime zones has defined it as the water bodies that are not considered to water in economic zones, territorial zones, or internal waters of any state.

Just like the Outer Space have its undefined upper limits in a sovereign state’s airspace. In the 1963 UN General Assembly, it was declared open to all and free for explorations. Then the Outer Space Treaty (1967) redefined its consideration and provided that the explorations must be carried out for the benefit of all States. The regulation of jurisdiction assertion of states is a leading aspect of International Law.


Not all the privileges and immunities are completely absolute as they are subjected to limitations and restrictions as well. They reflect the rules that are developed by the States to ensure the balance of the regularity of international relations with the conduct of State activities. The fundamental requirements of a stable International Law system flow in a pattern link established by acceptance by the states and the limitations on their regulating authority.

1) Sovereign Immunity: – The sovereign immunity or the state immunity refers to laws and rules that protect one sovereign state from being prosecuted by another sovereign state. It is a type of jurisdictional immunity, which means exemption from the jurisdiction. This immunity ensures the equality and public independence of the sovereign states.

2) Diplomatic Immunity: – The Diplomatic personnel from a nation has immunity from prosecution in the state from where they operate. The diplomatic missions, agendas, and archives of that country are also protected.

3) Consular Immunity: – The Consular personnel perform a variety of principle actions in the interest of their sending countries. Generally, they do not act as the mediate for contact or communication between the States. They have functional immunity and not diplomatic immunity.


There is a difference between exercising the jurisdiction and the basis of jurisdiction. The International Law determines the factors responsible for justifying the basis of jurisdiction of a State. The restrictions or limitations in the jurisdiction protect the independence and sovereignty of the states. It is responsible for maintaining the equality of powers, responsible for exercising the basis of jurisdiction. The advance policies in the State’s interest are also, the responsibility of International custom laws.

It has given special recognition to the need for interdependence among the States by ensuring the effective and fair jurisdiction that exists to achieve certain objectives in the States. It has harmonized the rights of States, in cases where there arises jurisdiction of 2 or more states by ensuring concurrent jurisdiction. This also protects the individuals from the unreasonable exercise of the jurisdictional powers of States in matters of conflicting interests. The legal rules of International Law on jurisdiction are overpowered by the ideas and principles of the territorial authority, then there’s a special role of ideas and approach to identify the regulatory power.

The States are now able to identify a conceptual approach, to establish sufficient nexus between the basis for its jurisdiction and the objective of its assertion. Also, it is a possibility that the offense committed is not entirely in the territory of one State. As, it may have been conspired and planned in one state but, it consummated in another. Thus, the specified jurisdiction is obligatory in this scenario and hence, the development in the rules and norms was significant. The incorporation of the territorial principle by many international studies and conventions make the multinational corporation biddable to the local laws of State.


The Public International Law has various methods to settle the disputes among the States and none of the settlements takes any precedence over from any other. One of the famous methods of dispute resolution is the Peaceful settlement. They are the direct negotiations between the parties and involvement of third parties like through officials, duty personnel, inquiry or conciliation, etc.

The peaceful methods for dispute resolution are arbitration and judicial settlement. In Arbitration, the states having disputes bring their conflict in binding, before a tribunal. The tribunal is bound to give decisions in the number for all the claimants. The Judicial Settlement occurs when the dispute between the states is brought forth to the notice of an independent existing Court. Some of those international judicial bodies are ICJ (International Court of Justice), European Court of Human Rights, the Inter-American Court of Human Rights, and most importantly, the International Tribunal.

The next alternative to resolve the disputes among the states is by the use of force. Though, the UN Charter prohibits the use of force or even threat of using it, as it is against territorial integrity. The States may only use force for self-defence or after the permitted authorization of the UN.

If there is any kind of breach or threat to international peace and security, then the regional organizations may issue any binding decision that may be necessary to impose economic sanctions or the military force into the region.


Since, the end of World War II, the participation of the regional and international organizations at the global level has drastically increased. This has resulted in an increased level of peaceful-settlement policy and peacekeeping treaties between more countries. This also gave rise to the mechanisms that can be made applicable to dispute resolution between the member states. Like the UN (United Nations) can now be utilized at several more levels than before, the role of Secretary-General, the Security Council and the General Assembly have been revised. They can now suggest the terms for the settlement among the member nations and can recommend methods or solutions to resolve disputes [4].

The International customary law permits the states to have the right to self-defence but, the use of force must be proportionate to the threat. As a result, the States have opted to cooperate in many areas beyond the regulation of sovereign rights and allocation of border peace. The boundaries of the International Law, norms of its jurisdiction are a subject matter for controversy.

The nation-based jurisdiction is dependent on the Law of the nation’s rules, that the States may assert its jurisdiction over the authority conduct of nationals regardless of their territorial location. Nonetheless, the International Law of nations has a very important role in an individual’s involvement and the States are its key subjects. From a global perspective, the International Law is the source that restores the balances between the world powers and other nation-states. But, each State is said to have that hidden interest, to get exclusively reserved for competence of prescribing policies, without the external interference or disruption.


The Charter of the United Nations (UN) specifies an organization for settling the international conflicts and matters of international disputes. It mentions these resolutions of conflicts, disputes by all peaceful means. One of the most important, comprehensive courts of International dispute resolution is the ICJ (International Court of Justice). It was established by the UN in 1920 under Charter (Article 92). Since then, it has been the principal judicial organ of the UN, it has a total of 15 judges. Each representing the main aspects and different forms of civilizations and the existing principal legal systems in the world.

The International Law Commission established by the UN in 1947 promotes the progressive, natural development of International Law. It addresses the issues relevant to the regulation of the strong link and relations among the States, and is guided to take guidance from the Red Cross, International Court of Justice, and especially United Nations specified agencies.

The peaceful settlement of International matters of disputes and conflicts may be resolved by arbitration and judicial settlement as under Article 33 of the Charter. The encouragement of the progressive development of this law of nations and its legal codification is mentioned under Article 13 of the Charter.


The Lotus Case (France vs. Turkey), 1927[6]

Issue: – Does rule of Law of Nations that prohibits a state from exercising criminal jurisdiction over a foreign national, who commits acts outside of the state’s national jurisdiction exist? Does Turkey got to support its assertion of jurisdiction using an existing rule of Law of Nations or is the absence of a prohibition rule preventing the assertion of jurisdiction enough?

Rule: – A rule which prohibits a state from asserting criminal jurisdiction over a foreign national who commits acts outside of the state’s national jurisdiction in Public International Law.

Application: -Turkey’s assertion of jurisdiction over a French citizen, who had been the primary officer of a ship that collided with a Turkish ship on the high seas, was challenged by France as a violation of the rule of International Law.

Conclusion [7]: – As per curium, the rule of International Law that prohibits the state from exercising jurisdiction over foreign national committing offense outside the state’s jurisdiction doesn’t exist. Turkey does not violate any International Law by imposing criminal proceedings over Lotus. The Court held that the state should have territorial jurisdiction over the matter, even if the offense committed is outside the territory. As long as any consecutive element is related to the matter with a strong link. This was termed as ‘subjective territorial jurisdiction’ as ruled by the Court. Hence, Turkey has the authority to arrest the French Officer under the provisions of the Treaty of Lausanne. The Court held that both Turkey and France have concurrent jurisdiction over the cases, arising in the high season a French Vessel. But, due to the different treaties between the states, many nations have overruled this judgment and have ruled that only the flag country will have the jurisdiction. And so, the State cannot exercise its power or enforce its laws on matters outside their territory except for those, under permissive law derived from the core of international custom.

Central Bank of India vs. Ramnarain, 1954(AIR 75 S.C. 36)[8]

Issue: – Whether the Indian Penal Code (IPC) could be applied to a person, who is not the citizen of India while committing an offense?

Rule: – Section 4, 188 and 380 of Indian Penal Code (IPC). Section 188 of The Code of Criminal Procedure (CPC), 1973.

Application: – Section 4 of the IPC and Section 188 of CPC applies that at the time of the commission of the offense if the person committing the offense is a citizen of India then even if the offense was executed outside the territory of India, the person can be made subject for it.

Conclusion: – The Court held that the IPC rules and conduct cannot be applied to the foreigner for the offense committed outside British India. As the offense was committed in the part of a district that was not the part of India, after the partition. So, after the migration to India, he acquired the status of being a citizen to India. The venue of the offense does not affect the jurisdiction of the Courts in India for its citizens. Hence, if any citizen of India commits an offense anywhere in India or even beyond the Indian territory, is subjected to rules of CPC by Section 188 of the Act. So, the High Court held that Ram Narain could not be tried in Court in India for the offenses committed by him in Mailsi. So, the provincial government had no authority to sanction any rule for his prosecution.

Abdul Kader Mahomed Jhaveri vs. Union of India, 1986 (AIR 1987 Guj 176) [9]

The petitioner was a foreign national in India and was a citizen of the Republic of South Africa. The passport on which he travelled was expired and so, was asked to get a valid one from his country. Meanwhile, the country as respondent initiated legal proceedings against him. As he had breached the provisional norms of the Foreign Exchange Regulations Act, 1973, as he is not the citizen of India but the resident of India.

Issue: – The petitioner breached the provisions of the Foreign Exchange Regulations Act, 1973. He carried his business and activities related to it, without the granted authority of Reserve Bank of India. Whether the authorities functioning have the power to seize his passport or not? The petitioner contended that the order of seizure is null and void?

Rule: – Section 37, 38, 50, 51 of the Foreign Exchange Regulations Act, 1973. It confers powers vested in Section 131(3) of the Income Tax Act. It states the powers of authority to seize the “documents” including passports. Section 104 of the Indian Penal Code states that Court may impound any document deemed fit.

Application: – As the petitioner was not a citizen of India but a resident of the country. He carried his business in the country. He was alleged to have breached Section 29 of the Foreign Exchange Regulations Act. Also, he conducted his business activities without the permission of the Reserve Bank of India under Section 28 of the Act.

Conclusion:- The commission was set up led by Justice Shah held that the period for the passport was expropriated cannot be definite. The validity of the order was unreasonable as the validity of his passport was confirmed by the Central government. So, under Section 51 the passport of the petitioner remains valid and relevant. His foreign passport is the best evidence to prove that he is a resident-foreigner in India. Section 38 of the Act gives ample authority to seize the passports that are found to be relevant for conflict or inquiry. The passport was seized for inquiry and hence, cannot be in seizure for an indefinite period.


The jurisdiction of a State is parallel to the jurisdiction of another State [10], this gives rise to a series of conflicts. As more, there are cases, where more than 2 states have jurisdiction against the same matter or individual. Another issue for conflict arises where the state having custody of the accused cannot give his claim to the state having territorial jurisdiction over him. There are still some unanswered questions, why states voluntarily adopt the international custom norms and rules that limit their freedom of taking actions on the matter? Why the states do not suggest theoretical frameworks, to make suggestions for improvement rather than criticizing?

The most controversial is the exercise of jurisdiction based on the legality of principles, to regulate affairs at the global level. This is necessary as it plays important role in the economic regulation of the State. But, this response has always been critical and hence, giving need for a balanced and reasonable test, when considering the potential of the assertion of jurisdiction. Hence, there are some complexities in the reality of the legal order under International Law that make states responsible for both jurisdictional obligations and rights.

Though every state has the power to exercise jurisdiction over several offenses. But admittedly, they need to have a strong territorial link in the land of another state for jurisdiction over that matter like the presence of a suspect. But, the International Law never stating any requirements like these, hence making this principle to be unsure. But, the idea that any state may exercise its jurisdiction over any offense, regardless of any link or connection to that state, seems like an uneasy idea if centred with the view of Public International Law.

Hence, it is high time that we acknowledge the role that International Law plays and will eventually play over the years in the constitutional and national jurisdiction of the States. To survive, the global contextual principles, humanity need to adapt moral diversification and have to globalize.


Jurisdiction is an essential part of the classical framework of Public International Law and states are the key factors in it. The inquiries of private law have been, for the most part, minimized in present-day conversations of the law of purview, as the spotlight has instead been on the civil, administrative and criminal law of jurisdiction. This is regrettable as the significance of private law regulation has been undermined. In reality, the States still play the leading role in the governance of global affairs, by signing multilateral treaties and agreements.

Though individual State plays their role in worldwide institutions as well as at the national level. They may maintain their peace with other nations, to avoid the rise of conflicts on its territorial borders. However, one cannot disagree with the rising possibility of a situation, where the State’s unilateralism would lead to abuse of global interest, for their interest as they may tend to limit foreign operator’s access to their local market.

Some studies and scholar’s research approach to the problem of the basic formation of the International Law rules while other approaches are based on the domestic law theories that expressly analyze the Public International Law. The grounds of jurisdiction recognized in the International Law, do accept the budding possibilities of overlapping regulation.

The exercise of national jurisdiction under the spotlight of International Law maybe stands to question the duty or its obligation rather than the right. The existence of the different scholarly sources and disciplines of International Law is relevant for assistance in a comprehensive framework that applies to humanitarian protection. As the International Humanitarian Law has provided the core basis of humanitarian principles like humanity and moral.


• Academic, O. (2014). Rethinking Jurisdiction in International Law. The British Yearbook of International Law.

• Central Bank of India v/s Ram Narain. (n.d.). Retrieved from lawyerservices.in: https://www.lawyerservices.in/Central-Bank-of-India-Versus-Ram-Narain-1954-10-12

• International Law. (n.d.). Retrieved from wikipedia: https://en.wikipedia.org/wiki/International_law

• International Law. (1768). In Encyclopaedia Britannica. Encyclopaedia Britannica, Inc. Retrieved from https://www.britannica.com/topic/international-law/Jurisdiction

• International Law and Justice. (n.d.). Retrieved from United Nations: https://www.un.org/en/sections/issues-depth/international-law-and-justice/index.html

• Jurisdiction in International Law. (n.d.). Retrieved from HeinOnline: https://heinonline.org/HOL/LandingPage?handle=hein.journals/byrint46&div=7&id=&page=






[6]PCIJ, SS Lotus, PCIJ Reports, Series A, No. 10, 18-19 (1927)





One Thought to “Jurisdiction In International Law”

  1. Ajay sinha

    Nice reasearch and content

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