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Define State
and its
Jurisdiction
Submitted To
Mrs. Jasmeet Gulati
Public International Law
Submitted By
U.I.L.S.,
EshaSingh
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P.U
Semester III
19/13
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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
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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
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has 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.1
1 (Oxford Monographs in International Law, Oxford University Press, 2000) p. 235 n. 170, in 1991
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Essential Elements Of
The State
According 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 states
For 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.population
2.definite territory
3.government
4. sovereignty
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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 .
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POPULATION
A 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
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2 J.C.Johari, Principles of modern Political science , Sterling Publishers Pvt. Ltd. , 2004 , 56
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TERRITORY
A 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.3
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".
3 supra note 2,57
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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 . 5
5 supra note 2 , 58
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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
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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. 8
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.9
Nevertheless, there are certain persons, property and events within a
State territory which are immune from its jurisdiction.
8 http://www.lawnotes.in/State_Jurisdiction 12.11.2014 at 1:20 pm
9 http://www.lawnotes.in/State_Jurisdiction 12.11.14 at 2.00 pm
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Types of State
Jurisdiction
The main types of state jurisdiction are : Territorial Jurisdiction
Extra Territorial Jurisdiction
Territorial JurisdictionIt includes land, sea/water bodies and air , space above.
Extra Territorial Jurisdiction
Extraterritorial 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". 11
11 http://en.wikipedia.org/wiki/Extraterritorial_jurisdiction
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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.
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(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.14
14 3 http://www.britannica.com/EBchecked/topic/291011/international-law/233512/Jurisdiction
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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.15
15 Harris, D.J. (ed) 2004 Cases and Materials on International Law 6th Ed. at p. 99. Sweet and Maxwell, London ]
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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.
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Hijacking of aircraft, violation of human rights and terrorism, have been added to
the list of international crimes.17
Today under the universality principle, each State and every State has
jurisdiction over any of the international crimes committed by anyone anywhere.
https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/7state-jurisdiction
17
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BIBLIOGRAPHY
WEB LINKS
1) www.mu.ac.in/myweb_test/Politicals%20Science%20-%20I%20pdf
2) references-definitions.blurtit.com/1942729/what-are-theelements-of-the-state-and-its-definition
3)http://www.justice.gov.tr/e-journal/pdf/LW7081.pdf
4)WWW.WIKIPEDIA.COM
5)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.
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