Jurisdiction of International Law

Jurisdiction of International Law

Jurisdiction refers to the power of a state to affect persons, property and circumstances within its territory. It is exercised through legislative, executive or judicial actions. It reflects the basic principle of state sovereignty, equality of states and non-interference in domestic affairs. It is the prominent feature of state sovereignty. According to international law, it is the power of states to regulate or impact upon people, property and events in its territory. It is the capacity of a state under IL to prescribe the rules of law, enforced the prescribed rules and to adjudicate them. In other words, it means that a state court has the right to make a legally binding decision that affects the parties involved in the case. It may extend beyond its territory over persons and things which have a national link. The concept of jurisdiction that a state has complete jurisdiction over all things and activities within its territory was for the first time established by the Westphalia congress 1648. Or International law is a body of rules and principles that governs the relationship between states and other international actors such as international organizations and individuals. The jurisdiction of international law refers to the scope of its applicability and enforcement.

International law is primarily concerned with regulating the conduct of states in their interactions with each other. It applies to all states, regardless of their size, power or level of development. International law also applied to international organizations such as the United Nations and the International Court of Justice as well as to individuals and non-state actors such as multinational corporations and non-governmental organizations.

The jurisdiction of international law is generally based on two principles: territorial and nationality. Territorial refers to the principles that a state has jurisdiction over its territory and the people and activities within it. Nationality refers to the principles that a state has jurisdiction over its citizens and their activities wherever they my be.

International law also recognizes the principles of universality which holds that certain crimes such as genocide, war crimes and crimes against humanity, are so heinous that they concern the international community as a whole and therefore fall under the jurisdiction of international law, regardless of where they are committed or by whom. Overall, the jurisdiction of international law is constantly evolving and expanding as the international community faces new challenges and develops new norms and principles to address them. There are following categorized of jurisdiction of international law:

1.      Territorial Jurisdiction:

Sovereignty is the main base of territorial jurisdiction. A sovereign state has the power to regulate the people, property, action and events taking place in its territory. The territorial jurisdiction of a state extends over its land, airspace, internal water, territorial water, national aircraft and vessels. In other words, the exercise of this jurisdiction by a state over persons, property and events within its territory is clearly conceded by international law to all members of society of states. In this jurisdiction, a national court has to adjudicate two types of cases - civil and criminal. In civil cases, there do not come so many jurisdictional complications among states. They can easily solve civil cases using the civil laws, rules and regulations prevailing in related states or mutual legal provisions. But there may come problems and controversies about the jurisdiction of criminal cases because there are different criminal laws among the states. In this situation, mainly two methods- subjective territorial principle and objective territorial principle are applied in adjudicating cases. According to the first principle states prosecute and punish the crimes planned in their territory but complete in the territory of another state; and in second principle when a crime planned in one state and committed in another state, the state of crime happened has the jurisdiction over the criminal.

2.      Personal Jurisdiction:

Personal (Nationality/Citizenship) jurisdiction implies that a state jurisdiction extends to its nationals and actions they take beyond its territory. As in the territorial jurisdiction, no so much complex problem arise in civil cases. But in criminal cases, the problem of jurisdiction may exist. In this context, the following three methods are applied- a) Passive personality method: a state can claim jurisdiction for crimes committed by aliens against its nationals abroad. b) Protective method: it implies that a state exercises jurisdiction over an alien who commits act outside its territory against safety or peace order of a given state. c) Universal method: it implies that a state has jurisdiction over certain crimes (eg. drug trafficking, sexual crimes, murders, reckless and dangerous driving, human slavery, firearm trafficking etc.) committed by any person, anywhere in the world without any required connection to its territory, nationality or special national interest.

3.      Maritime Jurisdiction:

Maritime jurisdiction refers to the legal authority that a state has over maritime areas and activities including the internal water, territorial sea, contiguous zone, exclusive economic zone, continental shelf and high sea. This jurisdiction encompassed both civil and criminal matters such as shipping, fishing, marine pollution and piracy.

The extent of a state’s maritime jurisdiction is determined by the United States convention on the law of the sea which sets out rule and guidelines for the use and protection of the world’s ocean and seas. United States convention on the law of the sea defines he territorial sea as a belt of coastal waters extending up to 12 nautical miles from a state’s baseline while the exclusive economic zone extends up to 200 nautical miles from the baseline. Maritime jurisdiction can be exercised by various authorities including coastal states, flag states and port states. The enforcement of maritime laws and regulations is typically carried out by coast guards naval forces and other maritime law enforcement agencies. The maritime jurisdiction has been six categorized which are following described below:

a.      Internal Water:

Internal waters are completely under the land territory of coastal state. They are inside the baseline. Coastal states have exclusive civil and criminal jurisdiction over foreign merchant vessels and persons on abroad in internal waters. But generally coastal states tend to renounce their jurisdiction when actions on abroad vessels do not affect the interest of the states or in of no consequences beyond the vessel. The coastal state may apply and enforce its law in full against foreign merchant vessels in its internal waters.

b.      Territorial Sea:

The territorial sea is a part of the coastal state's territory and the state exercises sovereignty in it. It is adjacent to the land territory or internal waters of a state. The breadth of territorial sea is measured up to 12 miles from the baseline. In territorial sea, sovereignty is exercised by a coastal state but foreign ships have the right of innocent passage through it. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state. The coastal state has the following rights:

·         The state has an exclusive right to fish and to exploit the resources to the seabed and subsoil of the territorial sea.

·         It can do exclusive enjoyment of airspace above the territorial sea, unlike ships foreign aircraft have no right of innocent passage.

·         The coastal ships have the exclusive right to transport goods and passengers from one part to another of the sea.

·         If the coastal state is neutral in the time of war, belligerent states may not fight or capture merchant ships while in the sea.

·         The coastal state may enact regulations concerning navigation, health, customs duty and immigration which foreign ships must obey.

c.       Contiguous Zone:

A contiguous zone is connected to the territorial sea that may not extend beyond 24 miles from the baseline from which the breadth of territorial sea measured. Within the contiguous zone the coastal state may exercise the control necessary to prevent and punish infringement of its customs, revenue, immigration or sanitary laws and regulations within its territory or territorial sea. In all other respects, contiguous zone is an area as the subject to high sea freedom of navigation, over flight, military exercises etc.

d.      Exclusive Economic Zone:

This zone extends beyond 200 miles from the baseline or 176 miles from the contiguous zone. A coastal state has sovereign rights in its economic zone. It may exploit its living and mineral resources and has right to create any artificial islands, erect any economic installations or issue permission to do so, conduct maritime scientific research. It must allow other countries to engage in fishing activities. All states can enjoy freedom of navigation and flights and laying the cables and pipelines in this zone. A coastal state may not bring part of EE zone under its sovereignty.

e.       Continental Shelf:

In most part of the world, the seabed slopes gently away from the coast to quite a long distance before it plunges steeply down to the great ocean depth. This gently sloping of the seabed covered by sallow water is called the continental shelf. The breadth of this shelf cannot go more than 350 miles from the baseline or 150 miles far from the EE zone. The coastal state exercises over the continental shelf, sovereign rights for the purpose of exploring it and exploiting its natural resources. No one may undertake these activities or make claim to the continental shelf without the express consent of the coastal state.

f.       High Sea:

Oceans, seas, waters outside national jurisdiction are referred as the high seas. High seas are freely accessible to all nations (coastal and landlocked). The regulation of a vessel on the high seas is normally the responsibility of the nation whose flag that vessel flies. High seas are open to the common and equal utilization by all nations. Freedoms of navigation, over flight, laying cables and pipelines, construction of artificial islands and economic installations, fishing and the conduct of scientific research are available there for all interested. But all types of nuclear tests are prohibited there. High seas are only for peaceful purposes.

4.      Airspace Jurisdiction:

Airspace is the portion of the atmosphere controlled by a state above its territory including its territorial waters. The airspace above the territory of the state is an inseparable part of the territory and within the sovereignty of the state. Every state has total and exclusive sovereignty over its air space. The state has the right to prohibit private flights over some specific areas and has right to visit and search the aircraft. Military aircrafts cannot fly over the territorial airspace of another state without special permission of the authorized state.

5.      Domestic Jurisdiction:

States determine the sphere of state activity which IL cannot interfere with. In this direction, while in the past, violations of human rights of citizens, the system of administration, society, economy, the method of governance, the living standard of citizens etc. were regarded as matters with the reserved domain of states. But the internationalization of human rights, the recognition of democracy and good governance as the customary norms of IL altered this position. Now the domestic jurisdiction is not so much effective as in the past. Because of the impact of globalization and internationalization the exclusive domestic jurisdiction of the state is not free from international legal regulation. Now domestic jurisdiction has become relative concept.