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Define State and its JurisdictionSubmitted ToMrs. Jasmeet GulatiPublic International Law Submitted ByU.I.L.S., EshaSinghP.U Semester III 19/13

ACKNOWLEDGEMENT

I feel immense pleasure to thank my learned Professor Jasmeet Gulati , to have to have put in so much of effort in helping us understand each and every aspect of the syllabus so well ignoring her health. I feel so thankful and have no words to thank her. I also want to thank my mother who has helped me find material for this project.Thank You So much Ma'am!

ESHA SINGH

INTRODUCTION

State is the main subject of international law. It is very difficult to define the term 'state' but certain jurists have made their endeavors to this respect .A state is an organized community living under one government.States may be sovereign. The term state is also applied to federated states that are members of a federal union, which is the sovereign state. Some states are subject to external sovereignty or hegemony where ultimate sovereignty lies in another state. The state can also be used to refer to the secular branches of government within a state, often as a manner of contrasting them with churches and civilian institutions. Many human societies have been governed by states for millennia, however for most of pre-history people lived in stateless societies. The first states arose about 5,500 years ago in conjunction with rapid growth of cities, invention of writing, and codification of new forms of religion. Over time, a variety of different forms developed, employing a variety of justifications for their existence (such as divine right, the theory of the social contract, etc.). Today, however, the modern nation-state is the predominant form of state to which people are subject.The state is an abstract institution that only exists if it is acknowledged by those who reside in it. The area the state covers is the first element. This includes the land, bodies of water, atmosphere and natural resources. The next element is the people who live within the state. The people within a state are bound by the laws. Sovereignty is another element, and its responsibility is to ensure the inhabitants abide by the law. The government, another element, is the institution who is responsible for ratifying laws and for being an outlet of opinions and beliefs held by the people.

The land is essential to form a state because it needed for containing all of the other elements. Resources such as agriculture, livestock, minerals, oil, natural gas, and forestry can be found on the land. These resources benefit the state because they supply the economy. The people are the most important element because they are the ones who create the state. They also maintain the resources, live on the land, and form the government. In 21stCentury, State is everywhere. It is touching, directly or indirectly, all aspects of human existence. It has become omnipotent. This was not the case a few centuries ago. Back then state had limited role. It was primarily concerned with (i) an order and (ii) revenue collection. From this very small role to today's all pervading role, the role of state has been expanding.

Sovereignty is an abstract but necessary element of the state. The sovereign is only an authority if the majority of the people recognize it as one. The sovereign is different in every type of government. In police states, the police and/or military are the sovereign powers. In some countries, the monarch is the sovereign. Unfortunately, some people have to endure a dictator as the sovereign power. In true communism, the people are the sovereign power. Others elect their sovereign, or the sovereign is appointed by government members. Sometimes the court holds the sovereign power in a country. The government is linked to the sovereign because it creates the laws. All four elements are intertwined with each other, and all depend on each other to remain stable.A STATE has been defined in various ways according to the manner of thinking of the writer concerned.According to Salmond,State is a community of people which has been established for some objectives such as internal order and external security . According to Lawerence ,he defines state as a political community, the members of which are bound together by tie of common subjection to some central authority whose commands the bulk of them habitually obey stay to the society which is politically organized and its members are bound with each other by being under by some central authority and most of the people automatically follow the rules of this central authority. According to Prof. H.L.A.Hart"the expression , 'a state' is a way of referring to two facts: First ,that a population inhabiting in a territory live under that form of ordered government provided by legal system which its characteristics structure of legislature, courts , and primary rules ; and secondly, that the government enjoys a vaguely defined degree or independence "Starkehas righlty pointed out that an ideal definition of the term 'state' is not possible. but in the modern period it is finally settled as to what are the essential elements of the state.According to Thomas D. Musgrave, Self-determination and national minorities used the following definition of state:In Opinion No. 1 the Commission had noted, at p. 1495, that "the State is commonly defined as a community which consists of a territory and a population subject to an organized political authority; that such a state is characterized by sovereignty.[footnoteRef:2] [2: (Oxford Monographs in International Law, Oxford University Press, 2000) p. 235 n. 170, in 1991]

Essential Elements Of The StateAccording to Article 1 of Montevideo Convention 1933 on Rights and Duties of states the state "the state as a person of international law should poses the following qualifications: (a) A permanent population (b) A definite security (c ) A government(d) capacity to enter into relation with other statesFor a list of most of the states in the international community , who now total over 190.The Vatican city is the only state that is generally recognized by the international community that is not a member the united nations .Oppenheim has pointed out the following essential elements the state 1.population2.definite territory 3.government4. sovereignty

The famous jurist Holland has added the one more essential element namely, to some extent , 'civilization ' because of which the state becomes the member of international community .

POPULATIONA state fundamentally comprises of a permanent population over which it exercises its unlimited authority. The nature of the state depends upon the quality and quantity of its population. No ideal size of population can be stated. Aristotle stated "A population must be large enough to be self-sufficient, but small enough to be well-governed." A good population makes a good state; a bad one, a bad state. Since state is human association the first essential element that constitute it is the people.How much people constitute state? No exact answer can be given to such a question.It is a different matter that a philosopher like Plato suggest the figure of 5040 people for his sub ideal state in the laws and a modern thinker like Rousseau prefers population of 10000 in a real democratic state.The fact in that the states of the world vary in terms of demographic strength.We have states with the population of 100 millions as china and with a strength of few thousands people like san marino.In this direction we may appreciate the view of Aristotle that the population of a state should be neither so large that administration may be a problem nor so small that the people may not lead a life peace and security.It should be so much that the people may lead a life self sufficiency. Another question that arises at this stage is whether the population of a state should be homogenous . Homogeneity is determined by any factor like commonness of religion, or blood, or language, or culture and the like. It is good that population of a state is homogenous , because it makes the task of national integration easy. But it is not necessary. Most of the states have a population marked by diversity in respect of race , religion , language,culture etc. All problems of nation building are solved and the people of a state , irrespective of the differences become a nation. t signifies the situation of unity and diversity. the student of demographic politics also take note of the fact that a very large and unwisely population force the rulers to appreciate the course of war . The reason is that overpopulation of the country is a standing threat to its survival .[footnoteRef:15685] [15685: J.C.Johari, Principles of modern Political science , Sterling Publishers Pvt. Ltd. , 2004 , 56]

Hence , there should be export of population to other countries or a large chunk of the population should be pushed into a war. In short, it is to be noted that without population there can be no state.

TERRITORYA state cannot exist without territory. Territory refers to land, surrounding water upto 3 nautical miles, as well as the air above the land and water. Nomadic settlements did not possess any permanent territory. Hence, they cannot be called a state . There can be no state without a territory of its own.The nomadic tribes cannot have a state of their own for the reason that they do not have a fixed territory.The territory of a state includes land water and airspace, it has maritime jurisdiction extending upto a distance upto 3miles, though some states contend for a distance upto 20 miles.the territorial authority of a state also extends to ships and high season under its flags as well as its embassies and legations in foreign lands as we have seen in the case of factors of population so here it should be emphasized that the size of a state territory cannot be fixed.We have as large states as Soviet Union and china and small states as Fiji and Mauritius in respect of the territorial make up.It is also possible that a state may be in the form of a group of islands as Indonesia Philippines and Japan.It is however certain that the boundary lines of a state must be well marked out.This can be done either by the geographical make in the forms of division by the seas,rivers,mountains,thick forests etc.[footnoteRef:18064] [18064: supra note 2,57]

The second qualification is territory where the permanent population live on. However, there is not a necessity of having well- established boundaries international Court of Justice said in the North Sea Continental Shelf cases, ... there is...no rule that the land frontiers of a state must be fully determined and defined". The well known example is the uncertainty of the land frontiers of Israel when it was admitted as a state .[footnoteRef:19229] [19229: http://www.mu.ac.in/myweb_test/Politicals%20Science%20-%20I%20- , 12.11.2014 at 1;14pm]

GOVERNMENT It is a body of a few people who administer the population and are meant to express the will of the state. The government has limited power, as opposed to the state's unlimited authority. The government is subject to change and is bound to obey will of the people as well as state. To equate the Government with State is a dangerous, yet common mistake. Government is that agency which steers the ship of the State. Without government, state will be directionless. Here the form of government does not Matter. It could be Presidential System, one party rule or even dictatorship, there has to be a government. In other words, government is nothing but the implementing arm of state. Government is that system through which stateexpresses its will. The government makes law, punishes law breakers, promotes welfare of people. It is the soul of the state . It implements the will of the community .It protects the people against the conditions of insecurity . If state is regarded as the first condition of a civilized life, it is due to the existence of a governments that maintains law and order and makes 'good life ' possible.The government is the machinery that terminates the condition of anarchy . Government is another name for administration. if we deeply scrutinize the views of anarchists who want to abolish the state root and branch , we may take note of the fact that even they desire .[footnoteRef:9640] [9640: supra note 2 , 58]

Sovereignty It is the soul of a state. It implies that the state is independent from external interference, as well as can maintain integrity within itself. India could not be referred to as a state prior to 1947, as it did not have an independent government. Scholars believe that sovereignty is the soul of state. Before 15th august 1947, India had territory, population and government. But it did not have sovereignty. It shows the importance of sovereignty.It has two aspects (i) internal and (ii) external. In internal sovereignty, the state has ultimate, unlimited power within its territory. It enjoy final control over all people, associations and other things. Under external sovereignty, it means a state is free from external control. It can enter into international treaties. Some scholars believe that after UNO was formed in 1945 and more specifically after the age of globalization began in 1991, the scope of external sovereignty has shrunk considerably. As already pointed out , sovereignty is the attribute of state . It is a creation of modern times. It is the highest power of the state that distinguishes it from all other associates of human beings.It has two aspects --- internal and external.It means that inside the state there can be no other authority that may claim equality with it . In the external sphere , it implies that the country should be free from foreign control of any kind . It is , however , a different matter that a state willingly accepts some international obligations in the form of obligations in the form of membership of the League of Nations or of the United Nations . The existence of sovereign authority appears in the form of law. It is universally admitted that a sovereign state is legally competent to issue any command which is binding on all citizens and their associations. Thus, by sovereignty Leacock implies that the territory and population in question must form no part of a wider political unit ; nor must the territory and population in question must form no part of it politically. [footnoteRef:13339] [13339: http://www.mu.ac.in/myweb_test/Politicals%20Science%20-%20I%20- , 12.11.2014 at 1:15 pm ]

It follows that a state , in political theory , has four essentials elements . As such , a proper definition of this term should include its physical and spiritual elements . It is also required that all the four elements should be studied in the order given above . We have many definitions of state , but the point of difficulty is that they either fail to include all the four elements . or disturb their order . But the definition of Garner on this point has a merit of its own .[footnoteRef:18733] [18733: supra note 2 , 58 ]

State Jurisdiction

State jurisdiction is the capacity of a State under International Law to prescribe and enforce the rules of law. It is derived from the State sovereignty and constitutes its vital and central feature. It is the authority of a State over persons, property and events which are primarily within its territories (its land, its national airspace, and its internal and territorial water). This authority involves the powers to prescribe the rules of law, to enforce the prescribed rules of law and to adjudicate. [footnoteRef:30648] [30648: http://www.lawnotes.in/State_Jurisdiction 12.11.2014 at 1:20 pm]

According to DJ Harris, State Jurisdiction is the power to prescribe rules (prescriptive jurisdiction) and the power to enforce them (enforcement jurisdiction).Jurisdiction may be concurrent with other States or it may be exclusive. It may be civil or criminal. State jurisdiction may extend beyond its territory over persons and things which have a national link.According to Section 3 & 4 of Indian Penal Code, 1860, any person is liable, by an Indian law, to be tried for an offense committed beyond India shall be dealt with according to the provisions of the IPC for any act committed beyond India in the same manner as if such act has been committed within India.[footnoteRef:30946] [30946: http://www.lawnotes.in/State_Jurisdiction 12.11.14 at 2.00 pm]

Nevertheless, there are certain persons, property and events within a State territory which are immune from its jurisdiction.The State territory, for the purpose of Jurisdiction, is taken as: Land situated within the boundaries of the State as recognized by the International Law over which the State has its control and power. Maritime coastal belt or territorial sea according to Law of the Sea . A Ship bearing the flag of the State wishing to exercise Jurisdiction . Ports . Also, State jurisdiction means that a state court has the right to make a legally binding decision that affects the parties involved in the case. In other words, a plaintiff and defendant in a case must have enough contact with the state that it is fair for the state court to determine what their legal rights are. State jurisdiction exists over any matter in which the state has a vested interest, such as the divorce of individuals within the state, the sale of property within the state, or the breach of a contract made within the state.[footnoteRef:31750] [31750: http://www.wisegeek.com/what-is-state-jurisdiction.htm 12.11.14 at 2:10 pm]

Types of State Jurisdiction

The main types of state jurisdiction are :- Territorial Jurisdiction Extra Territorial Jurisdiction

Territorial Jurisdiction-It includes land, sea/water bodies and air , space above.

Extra Territorial JurisdictionExtraterritorial jurisdiction (ETJ) is the legal ability of a government to exercise authority beyond its normal boundaries.Any authority can, of course, claim ETJ over any external territory they wish. But for the claim to be effective in the external territory (except by the exercise of force) it must be agreed either with the legal authority in the external territory, or with a legal authority which covers both territories. When unqualified, ETJ usually refers to such an agreed jurisdiction, or it will be called something like "claimed ETJ".[footnoteRef:5796] [5796: http://en.wikipedia.org/wiki/Extraterritorial_jurisdiction]

Accordingly, it is of three types: legislative jurisdiction, executive jurisdiction and judicial jurisdiction.

(1) Legislative Jurisdiction Legislative jurisdiction is the capacity of a State to prescribe rules of law (the power to legislate). A State has the supremacy to make binding laws within its territory. It has a legislative exclusivity in many areas. This supremacy is entrusted to constitutionally recognized organs. Although legislation is primarily enforceable within a State territory, it may extend beyond its territory in certain circumstances. International Law, for example, accepts that a State may levy taxes against persons not within its territory as long as there is a real link between the State and the proposed taxpayer, whether it is nationality or domicile.[footnoteRef:28642] [28642: Malcolm Shaw, p. 576.]

The legislative supremacy of a State within its territory is well established in International Law. However, this supremacy may be challenged in cases where a State adopts laws that are contrary to the rules of International Law.In such cases, a State will be liable for a breach of International Law. A State may also be liable for a breach of International Law if it abuses its rights to legislate for its nationals abroad.[footnoteRef:28747] [28747: Id.]

(2) Executive Jurisdiction

Executive jurisdiction is the capacity of a State to act and to enforce its laws within its territory. Generally, since States are independent of each other and possess territorial sovereignty, they have no authority to carry out their functions on foreign territory. No State has the authority to infringe the territorial sovereignty of another State. In this sense, a State cannot enforce its laws upon foreign territory without the consent of the host State; otherwise, it will be liable for a breach of International Law.

(3)Judicial Jurisdiction

Judicial jurisdiction is the capacity of the courts of a State to try legal cases. A State has an exclusive authority to create courts and assign their jurisdiction, and to lay down the procedures to be followed. However, in doing so, it cannot by any means alter the way in which foreign courts operate. There are a number of principles upon which the courts of a State can claim jurisdiction. In civil matters, the principles range from the mere presence of the defendant in the territory of a State to the nationality and domicile principles. In the criminal matters, they range from the territorial principle to the universality principle. These principles are the subject of the following section.[footnoteRef:15402] [15402: 3 http://www.britannica.com/EBchecked/topic/291011/international-law/233512/Jurisdiction]

Principles of Jurisdiction

Generally, the exercise of civil jurisdiction by courts of a State has been claimed upon far wider grounds than has been the case in criminal matters.The consequent reaction by other State with this regard has been much mild. This is partly because public opinion is far more vigorous where a person is tried in foreign territory for criminal offences than if a person is involved in a civil case. In addition, International Law does not impose any restrictions on the jurisdiction of courts in civil matters. In Common Law countries such as the United States and United Kingdom, the usual ground for jurisdiction in civil cases is the service of a writ upon the defendant within the country, even if the presence of the defendant is temporary and incidental. In Civil Law countries, the usual ground for jurisdiction is the habitual residence of the defendant in the country. In some countries such as Netherlands, Denmark and Sweden, generally courts assert their jurisdiction if the defendant possesses assets in the country; however, in matrimonial cases the commonly accepted ground for jurisdiction is the domicile or residence of the plaintiff. As far as criminal jurisdiction is concerned, the grounds or principles of jurisdiction mostly invoked by States are as follows.[footnoteRef:10735] [10735: Harris, D.J. (ed) 2004 Cases and Materials on International Law 6th Ed. at p. 99. Sweet and Maxwell, London ]]

(1) The Territorial Principle

The territorial principle is derived from the concept of State sovereignty. It means that a State has the primary jurisdiction over all events taking place in its territory regardless of the nationality of the person responsible. It is the dominant ground of jurisdiction in International Law. All other State must respect the supremacy of the State over its territory, and consequently must not interfere neither in its internal affairs nor in its territorial jurisdiction. The territorial jurisdiction of State extents over its land, its national airspace, its internal water, its territorial sea, its national aircrafts, and its national vessels. It encompasses not only crimes committed on its territory but also crimes have effects within its territory. In such a case a concurrent jurisdiction occurs, a subjective territorial jurisdiction may be exercised by the State in whose territory the crime was committed, and an objective territorial jurisdiction may be exercised by the State in whose territory the crime had its effect. Although jurisdiction is primarily and predominantly territorial, it is not exclusive. A State is free to confer upon other States the right to exercise certain jurisdiction within its national territory. States are free to arrange the right of each one to exercise certain jurisdiction within each national territory. The most significant recent examples of such arrangements are: the 1991 France-United Kingdom Protocol Concerning Frontier Control and Policing, under which the frontier control laws and regulations of each State are applicable and may be enforced by its officers in the control zones of the other; the 1994 Israel-Jordan Peace Treaty, under which the Israeli criminal laws are applicable to the Israeli nationals and the activities involving only them in the specified areas under Jordans sovereignty, and measures can be taken in the areas by Israel to enforce such laws.[footnoteRef:22289] [22289: supranote 15 ]

(2) The Nationality Principle

The nationality principle implies that a State jurisdiction extends to its nationals and actions they take beyond its territory. It is based upon the notion that the link between the State and its nationals is personal one independent of location. Criminal jurisdiction based on the nationality principle is universally accepted. While Civil Law countries make extensive use of it, the Common Law countries use it with respect to major crimes such as murder and treason. The Common law countries, however, do not challenge the extensive use of this principle by other countries. A State may prosecute its nationals for crimes committed anywhere in the world; the ground of this jurisdiction is known as active nationality principle. Also, it may claim jurisdiction for crimes committed by aliens against their nationals abroad; the ground of this jurisdiction is known as passive nationality principle. This last principle has been viewed as much weaker than the territorial or active nationality principle as a basis for jurisdiction. It has been considered as a secondary basis for jurisdiction, and a matter of considerable controversy among States. However, in recent years this principle has come to be much acceptable by the international community in the sphere of terrorist and other internationally condemned crimes.(3) The Protective principle

The protective principle implies that a State may exercise jurisdiction over an alien who commits an act outside its territory, which is deemed prejudicial to its security and interests. It is universally accepted, although there are uncertainties as to its practical extent, particularly as regard to the acts which may come within its domain. It is justified on the basis of protection of States vital interests, particularly when the alien commits an offence prejudicial to the State, which is not punishable under the law of the country where he resides and extradition is refused. Although the protective principle is used as a secondary basis for jurisdiction and in a narrower sense than the territorial or the nationality principle, it can easily be abused, particularly in order to undermine the jurisdiction of other States. In practice however, this principle is applied in those cases where the acts of the person which take place abroad constitute crimes against the sovereignty of the State, such as plots to through a government, treason, espionage, forging a currency, economic crimes and breaking immigration laws and regulations. This principle is often used in treaties providing for multiple jurisdictional grounds with regard to specific crimes, such as the 1979 Hostage Convention and the 1970 Hague Aircraft Hijacking Convention.

(4) The Universality Principle The universality principle, in its broad sense, implies that a State can claim jurisdiction over certain crimes committed by any person anywhere in the world, without any required connection to territory, nationality or special State interest. Before the Second World War, such universal jurisdiction has been considered as contrary to International Law by the Common Law countries, except for acts regarded as crimes in all countries, and crimes against the international community as a whole such as piracy and slave trade. After the Second World War, universal jurisdiction has been universally recognized over certain acts considered as international crimes. International crimes are those crimes committed against the international community as a whole or in violation of International Law and punishable under it, such as war crimes, crimes against peace and crimes against humanity. In recent years, crimes such as Hijacking of aircraft, violation of human rights and terrorism, have been added to the list of international crimes.[footnoteRef:31027] [31027: https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/7-state-jurisdiction]

Today under the universality principle, each State and every State has jurisdiction over any of the international crimes committed by anyone anywhere.

BIBLIOGRAPHY

WEB LINKS1) www.mu.ac.in/myweb_test/Politicals%20Science%20-%20I%20-pdf2) references-definitions.blurtit.com/1942729/what-are-the-elements-of-the-state-and-its-definition3)http://www.justice.gov.tr/e-journal/pdf/LW7081.pdf4)WWW.WIKIPEDIA.COM5)http://www.wisegeek.com/what-is-state-jurisdiction.htm 6) http://ruwanthikagunaratne.wordpress.com/2011/04/13/jurisdiction/

BOOKS USED A) Prasad Mahesh Tandon Public International Law and human Rights ;reprint 2004;Allahabad Law agency.B) DAS P.K. , International Law Documents ; universal law publishing co. pvt ltd 2013 Ed.C) Harris David , cases and Materials on International Law ; Sweet and Marxwell ; 2010 7th edition.