State jurisdiction: principles and exemptions

1. Meaning

Jurisdiction is the power of a State under international law to regulate or affect people, property and events. Writers distinguish jurisdiction to prescribe (make laws), to adjudicate (subject persons to its courts) and to enforce (arrest, seize, punish). Enforcement is strictly territorial: a State may not exercise its power in the territory of another State without consent (Lotus). Prescriptive jurisdiction may reach outside the territory on the bases below.

2. The principles

• Territorial principle, the primary basis. A State has jurisdiction over all persons and things within its territory, including its territorial sea and airspace. It has two forms: subjective (the offence began in the territory) and objective (the offence was completed or took effect in the territory, as where a shot fired across a border kills someone on the other side).
• Nationality (active personality) principle. A State may regulate the conduct of its nationals abroad. India: section 1(4) and (5) of the Bharatiya Nyaya Sanhita, 2023 (formerly section 4 of the IPC) extend the Code to offences by Indian citizens outside India and on Indian-registered ships and aircraft; section 208 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly section 188 CrPC) deals with the trial of offences committed outside India.
• Passive personality principle. Jurisdiction over a foreigner for an act abroad that injured a national of the forum State. Long contested (the Cutting case), now accepted for terrorism and attacks on diplomats in several treaties.
• Protective principle. Jurisdiction over foreigners abroad for acts threatening the security or vital interests of the State: counterfeiting its currency, espionage, forging passports (Joyce v. DPP, House of Lords, 1946, where an alien who held a British passport was convicted of treason for broadcasting for Germany).
• Universality principle. Every State may punish certain crimes wherever and by whomever committed because they offend the whole community: piracy (UNCLOS Article 105), war crimes, genocide, crimes against humanity and torture. Attorney-General of Israel v. Eichmann (Supreme Court of Israel, 1962) relied on universality and the protective principle.

3. The Lotus case

S.S. Lotus (France v. Turkey), PCIJ, 1927. On 2 August 1926 the French mail steamer Lotus collided on the high seas with the Turkish collier Boz-Kourt, which sank; eight Turkish nationals died. When the Lotus reached Constantinople, Turkey prosecuted Lieutenant Demons, the French officer of the watch, for manslaughter. France argued that only the flag State could exercise jurisdiction.

Held (by the casting vote of the President): Turkey had not acted contrary to international law.

• Restrictions upon the independence of States cannot be presumed. States have a wide measure of discretion to extend their laws and courts to acts outside their territory, limited only by prohibitive rules. France had to show a rule forbidding Turkey to act.
• A ship on the high seas is assimilated to the territory of its flag State. The effects of the offence were felt on the Turkish vessel, so Turkey had jurisdiction on the objective territorial principle.
• The absence of earlier prosecutions did not show a custom against them, since there was no proof that States abstained out of a sense of duty.

Later history. The rule on collisions was reversed by Article 11 of the Geneva Convention on the High Seas, 1958, and now Article 97 of UNCLOS: in a collision on the high seas, penal proceedings against the master or crew may be instituted only before the authorities of the flag State or of the State of which the person is a national. The general “Lotus principle” (what is not prohibited is permitted) is still cited but has been criticised, for example in the separate opinions in Arrest Warrant (2002).

4. Exemptions from territorial jurisdiction

(a) Foreign States (sovereign immunity). One sovereign cannot be sued in the courts of another: par in parem non habet imperium (The Schooner Exchange v. McFaddon, US Supreme Court, 1812). The absolute theory gave immunity for all acts; the restrictive theory, now prevalent, confines it to sovereign acts (acta jure imperii) and denies it for commercial acts (acta jure gestionis): Trendtex (Court of Appeal, 1977); the UN Convention on Jurisdictional Immunities of States and Their Property, 2004 (not yet in force). Immunity covers even serious breaches of international law committed in armed conflict: Jurisdictional Immunities of the State (Germany v. Italy), ICJ, 2012.

In India, section 86 of the Code of Civil Procedure, 1908 provides that no foreign State may be sued in an Indian court except with the consent of the Central Government certified in writing by a Secretary to that Government.

• Mirza Ali Akbar Kashani v. United Arab Republic, 1965 INSC 143, AIR 1966 SC 230. A suit against the UAR for the price of goods without Central Government consent was not maintainable. Section 86 is a complete code; the Court treated it as modifying the absolute immunity of international law to the extent of allowing suits with consent.
• Ethiopian Airlines v. Ganesh Narain Saboo, 2011 INSC 556, (2011) 8 SCC 539. A State-owned airline sued under the Consumer Protection Act for damage to cargo could not claim sovereign immunity for a commercial activity. The Court accepted the restrictive theory as the modern position.

(b) Heads of State and senior officials. A serving head of State, head of government and foreign minister have personal immunity from the criminal jurisdiction of other States while in office (Arrest Warrant of 11 April 2000, DRC v. Belgium, ICJ, 2002). After office, immunity remains only for official acts, and not for torture under the Torture Convention (R v. Bow Street Magistrate, ex parte Pinochet (No. 3), House of Lords, 1999).

(c) Diplomatic agents, under the Vienna Convention on Diplomatic Relations, 1961 (see the separate note): inviolability of person and premises and immunity from criminal jurisdiction (Articles 22, 29 and 31). Consular officers have more limited immunity for official acts (VCCR 1963, Article 43).

(d) Foreign warships and public ships are immune from the jurisdiction of the coastal State (UNCLOS Articles 32, 95 and 96). If a warship disregards coastal laws in the territorial sea, the coastal State may require it to leave (Article 30). Crew who commit offences ashore while off duty may be tried locally (Chung Chi Cheung v. The King, Privy Council, 1939).

(e) Foreign armed forces present with consent: jurisdiction is usually allocated by a Status of Forces Agreement.

(f) International organisations and their officials: Article 105 of the UN Charter and the Convention on the Privileges and Immunities of the United Nations, 1946.

(g) Other limits: the right of innocent passage through the territorial sea (UNCLOS Article 17) and the limits on criminal jurisdiction over foreign merchant ships in passage (Article 27).

5. Extraterritorial cases from India

In Republic of Italy v. Union of India, 2013 INSC 43, (2013) 4 SCC 721 (the Enrica Lexie case), two Italian marines on an Italian merchant ship shot dead two Indian fishermen about 20.5 nautical miles off the Kerala coast, outside the territorial sea but in the contiguous zone. The Supreme Court held that Kerala had no jurisdiction, since the incident was beyond its territorial waters, but that the Union of India had jurisdiction to try the case, and directed a special court. The dispute then went to an UNCLOS Annex VII arbitral tribunal, whose award (2020) held that the marines were entitled to immunity as State officials, so India could not exercise jurisdiction, but that Italy had breached India's freedom of navigation and India was entitled to compensation.

6. Problem: the Cutting case

A, an American citizen, was arrested in Mexico for having published in Texas an article alleged to be a libel on a Mexican citizen. Can Mexico prosecute him? (February 2025)

Issue. Whether a State may punish a foreigner for an offence committed abroad solely because the victim is its national (the passive personality principle).

Law. The primary basis of criminal jurisdiction is territorial. Jurisdiction over foreigners for acts abroad is permitted only on the protective or universality principles, or, more controversially, the passive personality principle. These are the facts of the Cutting case (USA v. Mexico, 1886): A.K. Cutting, a US citizen, published in a Texas newspaper an article defaming a Mexican citizen, and was arrested on entering Mexico under Article 186 of the Mexican Penal Code, which punished offences against Mexicans committed abroad. The US protested that the assertion of jurisdiction was contrary to international law. Cutting was released when the complainant withdrew, so no tribunal ruled. In Lotus, Judge Moore, dissenting, rejected the passive personality principle by reference to this case.

Application. The act was done wholly in Texas by a US citizen. Libel of a private person does not threaten Mexico's security (no protective principle), and it is not a crime of universal concern. The only link is the victim's nationality. Under Lotus Mexico might argue there is no rule forbidding it; but the preponderant practice, then and now, treats passive personality as acceptable only for serious crimes such as terrorism or hostage-taking under specific treaties, not for an ordinary libel.

Conclusion. Mexico's prosecution would not be in accordance with generally accepted international law; the better view is that it cannot prosecute A, and the US is entitled to protest and seek his release. If the article had been published in Mexico, or if the Mexican victim's harm had been the object of a crime recognised by treaty, the answer would change.

How this is examined

For the principles essay, give the five principles with one example and case each, then a paragraph on the Lotus and its reversal by Article 97 UNCLOS. For the exemptions essay, use the list (a) to (g) with section 86 CPC and the two Indian cases; examiners reward the absolute and restrictive theories. A short note on Lotus: facts, the three propositions, and Article 97.