MODULE-II

State - Legal Definition

The criteria for statehood, as outlined in Article 1 of the Montevideo Convention on

Rights and Duties of States 1933, are commonly accepted as a basis for determining
when an entity qualifies as a state under international law. Despite the increasing range of
actors and participants in the international legal system, states remain by far the most
important legal persons, & despite the rise of globalization and all that this entails, states
retain their attraction as the primary focus for the social activity of humankind & thus for
international law.

A subject of international law is “an entity capable of possessing international rights and
duties and endowed with the capacity to take legal action in the international plane”. In
the past, States were considered the only subjects of international law and the only legal
persons, possessing the totality of rights and duties recognized by international law. With
developments in international law, especially the establishment of the UN, other non-state
actors like international organizations have emerged and it has become clear that States
are not the only subjects of international law. To what extent do these international
organizations possess international legal personality?

Since 1945, several attempts have been made to agree on such a definition. During the
negotiations over the draft text on the Declaration on the Rights and Duties of States
(1949), the Vienna Convention on the Law of Treaties (1956 and 1966) and the articles
on Succession of States in respect of Treaties (1974), attempts were made to describe the
concept of the State. None of these efforts succeeded however, as a codification of a
definition of the State turned out to be too politically sensitive.

● Legal Personality

Personality as ‘presence’ in the Law of Nations ( connected with ideas of Statehood

& Sovereignty)

● Concept of Sovereignity
● Principle of the Equality of States
● Rights of States - Sovereignty & independence of States, equality of States,
territorial jurisdiction, right to self-defence & self-preservation
 ● Duties of States - Not to resort to war, fulfill treaty obligations in good faith, duty
of non-intervention.

State as subject of international law

Creation of States/Essentials of statehood/ Criteria of Statehood

Defined territory

Permanent population

Government

Capacity to enter into relations with other states.

Effectiveness

Independence

Democratically Legitimate Authority

Self-Determination : The right claimed by a ‘people’ to determine their future.

Types of States -

Sovereign States

Non-sovereign States : Protectorate, Vassal, Federal, Commonwealth,

Confederation, Condominium

Not-typical States :Holy-See or Vatican City, Neutralised State & Neutral State,
Free cities

Modes of acquisition of state territory

Cession, annexation occupation, accretion, subjugation, prescription, award,

plebiscite
Modes of loss of state territory

Subjugation, cession, and prescription,revolt,dereliction(actual

abandonment/relinquishment), secession, grant of independence by
metropolitan State, vanishment

State responsibility

It denotes the general responsibility of a State towards other States as well as

institutions.

Traditional concept - Authority wielded by the State for the protection of

individuals belonging to it against foreign elements beyond its territory.

Later development - Diplomatic protection of citizens abroad

International Law Commission, Draft Articles on Responsibility of States for

Internationally Wrongful Acts, 2001

What constitutes an “Internationally Wrongful Act”? - Article 2, 4-11 of the Draft

Nature of State Responsibility -

International Delinquency

Act or omission resulting in the breach of international obligation

State responsibility is effectuated through acts committed by natural persons

Responsibility arising out of wrongful acts of other States

Responsibility for acts of insurgents, governments

State responsibility for injuries to aliens

State responsibility for environment

Defences to State liability

Consent

Counter measure in respect of an internationally wrongful act

 Force majeure & fortuitous event

Distress

State of necessity

Self-Defence

Reservation as to compensation for damage

Theories

Fault/ Subjective

Risk/Objective

Absolute Liability

Eclectic theory of responsibility

Breach of Peremptory Norms(Jus Cogens)

Breach of treaty obligations & contractual obligations

Calvo doctrine

Recognition - Concept of recognition, theories, kinds and consequences of

recognition

STATE SUCCESSION

Types : Universal, Partial

State Succession - Voluntary & by revolt

Theories : Universal succession, Popular continuity theory, organic substitution,

self-abnegation, negative, communist

Rights & Duties arising out of State Succession

Effect of State Succession

 1. Succession to treaties
2. Cession of territory
3. Unification of States
4. Complete dissolution of a State
5. Memberahip of International Organisations
6. Separation
7. Newly-independent States
8. Public property
9. State Archives
10. Public Debt
[Link]
12. Torts
13. Nationality
14. Private rights

State jurisdiction

In the classic Westphalian understanding, this right has been limited to a State’s
territory, a limitation that at the same time ensures that no State intervenes in
another State’s affairs (Section 1).

This idea is no longer strictly applied, if it ever was. Exceptions that allow for
limited extraterritorial jurisdiction have been carved out, and, moreover, the
territoriality principle has been construed rather liberally (Section 2).

To be true, some States employ a rather strict presumption that the legislature
does not normally intend to apply its laws extraterritorially, but such a
presumption does not limit thIn public international law, the concept of jurisdiction
has traditionally had a strong link with the notion of sovereignty. Jurisdiction
allows States to give effect to the sovereign independence which they are
endowed with in a global system of formally equal States, through stating what 2
the law is relating to persons or activities in which they have a legal interest.
Sovereignty however not only serves as an enabling concept with respect to the
exercise of jurisdiction, but also as a restraining device: it informs the adoption of
international rules restricting the exercise of State jurisdiction. States may indeed
well adopt laws that govern matters that are not exclusively of domestic concern,
and thereby impinge on other States’ sovereignty. In essence, the laws of
jurisdiction delimit the competences between States,1 and thus serve as the
basic ‘traffic rules’ of the international legal order.e discretion of the legislature to
do just that if it so desires (Section 3).

To give an instance, if a man kills somebody in Britain and then manages to

reach the Netherlands, the British courts have jurisdiction to try him, but they
cannot enforce it by sending officers to the Netherlands to apprehend him.

Forms of jurisdiction: prescriptive, enforcement, adjudicatory, and functional

1. Territorial Jurisdiction:
○ Territorial jurisdiction is the most basic form of jurisdiction. It
refers to a state’s authority to apply its laws and exercise its
legal powers within its recognized territory.
○ States have the exclusive right to govern and legislate within
their territorial boundaries, including land, territorial waters, and
airspace.
2. Extraterritorial Jurisdiction:
○ Extraterritorial jurisdiction extends a state’s legal authority
beyond its own territory. It allows a state to assert control over
certain matters that occur outside its borders but have a
connection to the state’s interests.
○ Common examples of extraterritorial jurisdiction include the
prosecution of crimes committed abroad by its nationals or the
regulation of its citizens’ conduct abroad, such as taxation of
income earned abroad.
3. Prescriptive Jurisdiction:
○ Prescriptive jurisdiction refers to a state’s authority to create
and enforce laws that govern the conduct of individuals,
entities, and activities.
○ States exercise prescriptive jurisdiction by promulgating laws
that apply to specific subjects or activities, even if they occur
outside the state’s territory.
○ Prescriptive jurisdiction is typically subject to principles of
international comity, which encourage states to respect each
other’s sovereignty and interests.
4. Enforcement Jurisdiction:
 ○ Enforcement jurisdiction pertains to a state’s authority to
enforce its laws and legal decisions, including the arrest and
extradition of individuals who are subject to its jurisdiction.
○ International legal cooperation, such as extradition treaties,
plays a crucial role in cases involving enforcement jurisdiction.
5. Nationality Jurisdiction:
○ Nationality jurisdiction allows a state to assert jurisdiction over
its own nationals, regardless of where they are located or
where their actions occur.
○ This form of jurisdiction is often used in criminal cases,
taxation, and other matters involving a state’s citizens.
6. Flag Jurisdiction:
○ Flag jurisdiction is related to vessels and aircraft. It grants a
state jurisdiction over vessels and aircraft registered under its
flag, regardless of their location in international waters or
airspace.
○ This concept is governed by international conventions, such as
the United Nations Convention on the Law of the Sea
(UNCLOS) for maritime jurisdiction.
7. Universal Jurisdiction:
○ Universal jurisdiction is a special form of jurisdiction that allows
states to prosecute certain international crimes, such as
genocide, war crimes, and crimes against humanity, regardless
of where they were committed or the nationality of the
perpetrator or victim.
○ Universal jurisdiction is based on the principle that certain
crimes are so grave that they concern the international
community as a whole.

Exceptions to the exercise of jurisdiction

1. Diplomatic agents
2. Foreign sovereigns
3. Foreign embassies
4. Immunity in respect of public property of Foreign Sovereign States
Power of State to Exercise Jurisdiction :

1. Civil
2. Criminal

S S Lotus Case

For this situation, there was a presentation by Turkey over the French resident who
was the primary official of the boat that crashed into a Turkish boat on the High
Sea. It was tested by France as an infringement of international [Link] Court
expressed that Turkey has the power to capture the French official under the
Treaty of Lausanne. It additionally expressed that assuming somebody challenges
the jurisdiction of a Sovereign State, the weight of verification will lie on the
offended [Link] law is an arrangement of opportunity nations can act in
any way which isn’t explicitly denied. This case is checked on as a good grade of
positivism; that the State should keep command over [Link] Court additionally
expressed that France and Turkey had simultaneous jurisdiction over cases
emerging abroad on a French banner vessel on the high oceans. Numerous
arrangements have overruled these and said that lone the banner State has
jurisdiction.

Under criminal jurisdiction :

● Territoriality principle : Jurisdiction refers to the place where the

offence is committed

Territorial Jurisdiction
This incorporates the topographical limit of a court’s jurisdiction. We can take a model
where the Municipal Courts don’t have jurisdiction over the violations that happen
outside as far as possible. Allow us to comprehend this with a case law.

Mubarak Ali Ahmad versus the State of Bombay

For this situation, Mubarak Ali with an unscrupulous aim made a bogus portrayal to the
complainant in Bombay saying that he has a prepared supply of rice so the candidate
ought to send the receipt of cash to the complainant who was restless to import rice direly
and to get the sum on the conviction of such portrayals. It was battled in light of the fact
that the Pakistani public, during the time of the commission of the offense has not
stepped in India and he was in Karachi, so he can’t be attempted in the Indian Courts nor
he can be held culpable under the Indian Penal Code. In the removal continuing the
preliminary which is forthcoming in a court cannot be pursued for the subsequent time.
Thus the conviction was impractical.
The Court held that every one of the fixings establishing the offense of cheating under
Section 420 of the Indian Penal Code have been done in Bombay, despite the fact that the
offense is submitted there and however the candidate was absent in India during the
commission of the offense, his conviction is legitimate under Indian Penal Code.
As the litigant gives up to the Indian Authorities under the Fugitive Offenders Act, 1881.
There is no such arrangement in this Act forestalling capture in India for preliminary of a
new offense. His conviction was legitimate. The litigant who was a Pakistani public was
sentenced for cheating in business under Section 420 of the Indian Penal Code.

Overseer of Public Prosecution versus DOOT

For this situation, the litigant was charged for unlawful demonstrations which are for the
import of risky medications into the UK. Respondents counsel said that they shouldn’t be
attempted in England in light of the fact that the offense was submitted abroad. he
Court held that the respondents were outsiders which had a mysterious arrangement to
import Cannabis in the U.K.
The House of Lords expressed that English Courts have jurisdiction over the offenses
submitted in England. Ruler Wilberforce, for this situation, expressed that it establishes
worldwide components that the suspect were outsiders and an unlawful demonstration is
done abroad. Thus, there is no doubt that assuming there is any break in the standard of
the law, they will be indicted in the country where the wrongdoing has been perpetrated.

● Active Nationality principle : Jurisdiction may be extended on placing

reliance on residence and other connections as evidence of
allegiance owned by aliens and also by ignoring changes of
nationality.
● Passive Nationality principle : An alien may be punished for the acts
committed by him abroad if such acts cause injury to one of its
nationals irrespective of the nationality of the offender.
● Protective principle: The jurisdiction of a State is determined by
reference to the national interest injured by the offence.
● Universality principle : Determined by the custody of the persons
committing the offences.

Article 51 of the UN Charter

Article 51 gives the nations to take part in self-protection and against an outfitted assault.
A case identifying with Self-Defense is:
Nicaragua versus USA
For this situation, In 1979, when an expert soviet government called the Sandini States
came to control in Nicaragua, the US authority were frightened, as this was the stature of
the virus war.
In 1981, the Reagan organization chose to help the renegade powers in Nicaragua called
Somosistas, who was a USA resident.
The Central Intelligence Agency ran broad unlawful and mystery tasks focusing on the
Nicaraguan armed force and flying corps, provided arms, ammo, cash and every now and
again captured Nicaragua residents.
Nicaragua residents brought a body of evidence against the USA for abusing the Treaty
of the UN Charter.
The Court held that US challenged that ICJ didn’t have jurisdiction to hear this case yet
ICJ by the by continued with the case in view of the 1955 ceasefire among Nicaragua and
the USA. The ICJ discovered that the USA had purposely and deliberately disregarded
the arrangements of the UN Charter, general standards of International Law and had
unmistakably abused the territorial power of Nicaragua. In 1992, on account of gigantic
pressing factor Nicaragua reclaimed the objection and informally apologized to the US
Government.

Abdul Kader Mahomed Jhaveri versus Association of India

For this situation, the candidate was a far-off public and a resident of the Republic of
South Africa. The identification gave by the Republic of South Africa based on which he
came to India and meanwhile visa terminated and again he requested the Republic from
South Africa for the issue of another identification which was as yet legitimate.
The respondent who is the power, started the lawful procedures against him for the
penetrate of the arrangements of the Foreign Exchange Regulations Act, that he isn’t a
resident of India yet an inhabitant of India.
He carries on his business movement in India. Be that as it may, had managed without
the consent of the Reserve Bank. Furthermore, it was battled that the candidate ought to
be punished for the penetrate of the arrangement. Because of the forthcoming procedures,
the visa has been seized by the respondent. The applicant fought that the seizure was
invalid and void and without the consent of any jurisdiction. So the respondent ought to
be coordinated to return the visa.
The commission of request headed by Justice Shah expressed that the period for which
the identification was seized can’t be supposed to be unmistakable and certain and it
might reach out for an uncertain time frame. This would obviously make the legitimacy
of a request nonsensical and the legitimacy of the identification of the applicant is
affirmed by the Central Government. The length of the approval won’t surpass more than
time of a half year from the date of the choice that might be taken on the solicitor’s
portrayal.

Cross Frontier Jurisdiction

In this, the Court may perceive jurisdiction over any direct that applies outside its
jurisdiction.
While making any lawful move of debates between numerous gatherings and those
different gatherings who will be analyzed, comparatively in different jurisdiction in
which procedures to determine the questions may appropriately be started and the choices
from the results will be made in such area.

What are the Immunities from Jurisdiction?

Sovereign Immunity
It alludes to the legitimate standards and standards which decide the condition from
which the State can guarantee the exception of sovereign resistance from the jurisdiction
of another State. This resistance is a making of the standard worldwide law which is
gotten from the standards of freedom and balance of sovereign States.

Diplomatic Immunity
The standards here are generally acknowledged and uncontroversial principles of
International Law. This aides in the upkeep and lead of the relations between the States.
Discretionary specialists appreciate invulnerability from the criminal jurisdiction of the
getting State.

Consular Immunity
The consular official resembles a discretionary specialist who addresses the State who
will get State. Not conceded a similar level of invulnerability from jurisdiction as a
strategic specialist.

What are the limitations on territorial jurisdiction ?

Exceptions to Immunity of States

1. Express consent to exercise jurisdiction

2. Effect of participation in a proceeding before a court
 3. Contracts of employment
4. Personal injuries & damage to property
5. Ownership, possession & use of property
6. Intellectual & industrial property
7. Participation in companies or other collective bodies
8. Ships owned or operated by a State
9. From measures of constraint in connection with proceeding before a court.
10. Commercial transactions
[Link] of an arbitration agreement

What are the jurisdiction on High-Seas, aircraft & outerspace?

Refer to United Nations Convention on Jurisdictional Immunities of States

and Their Property

Diplomatic privileges and immunities

1. Vienna Convention on Diplomatic Relations 1961

2. Vienna Convention on Consular Relations 1963
3. Difference btw Diplomats, Consuls & Special Missions
4. Embassies
5. What are the diplomatic immunities & privileges ? - Civil & Criminal
6. Duties of diplomatic agents
7. Can a diplomatic agent waive or lose his immunity?
8. Termination of Diplomatic mission
9. International Convention on the Prevention of Crimes against
Internationally Protected Personsvincluding Diplomatic Agents 1973
10. Aut dedere Aut Judicare