About this topic
State jurisdiction asks a basic question of Public International Law: when may a state make, enforce and apply its law to a person, a thing or an event? The topic covers the three kinds of jurisdiction, the five recognised bases (the "keys") on which a state may claim jurisdiction, the two limits (the "locks") that can still block it, and how Indian law (the B.N.S., the B.N.S.S. and related Acts) puts these principles into practice.
The cargo ship puzzle: A cargo ship registered in India is crossing the open Arabian Sea, far from any coast. One night, the ship's cook, a citizen of Portugal, stabs the ship's engineer, a citizen of Sri Lanka. A week later, the ship docks in Singapore. Four countries (India, Portugal, Sri Lanka and Singapore) now look at one crime. Which of them can put the cook on trial? The answer is worked out under "Solving the Cargo Ship Puzzle" below.
Meaning of State Jurisdiction
State jurisdiction is the power of a state, within the limits set by international law, to make laws, to enforce them, and to decide disputes under them.
Three kinds of jurisdiction
The three kinds can be remembered through three objects: a pen, a pair of handcuffs and a gavel.
| Object | Kind of jurisdiction | Also called | What it covers |
|---|---|---|---|
| Pen | Legislative jurisdiction | Prescriptive jurisdiction | The power to write rules (make laws) |
| Handcuffs | Executive jurisdiction | Enforcement jurisdiction | The power to investigate, arrest, search and seize |
| Gavel | Judicial jurisdiction | Adjudicative jurisdiction | The power of courts to try a case and give a binding judgment |
The Pen Travels, the Handcuffs Do Not
A state may, within limits, make laws about acts done abroad. It cannot, however, send its police into another country to enforce them.
In the Lotus case (1927), the Permanent Court of International Justice said:
"the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State."
Legislative (prescriptive) jurisdiction can extend to acts abroad, but enforcement jurisdiction stops at the border unless the other state agrees. Only the pen travels.
Bases of Jurisdiction: Five Keys and Two Locks
To use its pen and its gavel, a state needs a recognised link with the crime. Each link can be thought of as a key to the courtroom door. International law recognises five keys, and two locks can still block the door.
| Key | Principle | Link with the state |
|---|---|---|
| Place key | Territorial principle | The crime occurs on the state's territory (strongest key) |
| Flag key | Flag (extra-territorial) principle | The crime occurs on a ship or aircraft of the state |
| Passport key | Nationality principle (active and passive) | The offender (active) or the victim (passive) is a national |
| Shield key | Protective principle | The act threatens the state's security or vital interests |
| Master key | Universality principle | No link needed; the crime injures all humanity |
The two locks are:
- The sovereignty of other states.
- Immunity (in particular, diplomatic immunity).
Territorial Principle (The Place Key)
The territorial principle is the strongest key. A state has jurisdiction over:
- its land;
- its internal waters;
- its territorial sea, up to 12 nautical miles from the coast; and
- the airspace above them.
It covers all property there, movable and immovable, and every person present, whether a citizen or an alien. An alien is a person who is not a citizen.
A backpacker from Germany steals a camera in a Jaipur hostel. A Jaipur court tries him under Indian law, just as it would try an Indian.
Indian law states the territorial principle in Section 1(3) of the B.N.S.:
"Every person shall be liable to punishment under this Sanhita and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India."
Objective and subjective territorial principle
Some crimes cross borders. Such a crime can be pictured as having a head, where the act begins, and a tail, where it is completed or takes effect.
| Point | Objective territorial principle | Subjective territorial principle |
|---|---|---|
| Part of the crime in the state | The tail: the crime is completed or takes effect in the state | The head: the act begins in the state |
| Illustration | A woman in Dubai posts poisoned sweets to her business rival in Surat, and the rival dies there. India may try her. | A man in Kochi posts poisoned sweets to a rival in Singapore. India may act. |
The Lotus case
The Lotus case (1927): In 1926, the French steamer Lotus collided with a Turkish ship on the high seas. The Turkish ship sank and eight Turkish nationals died. When the Lotus reached Constantinople, Turkey prosecuted the French officer on watch. France argued that only the flag state could try him. Held: by the casting vote of its President, the Permanent Court of International Justice held that Turkey had not violated international law, because the effects were felt on the Turkish ship, which is treated like Turkish territory. Principle: the case illustrates the objective territorial principle.
For collisions, the Lotus result no longer stands. Article 97 of the United Nations Convention on the Law of the Sea (UNCLOS) now allows penal or disciplinary proceedings against the master or crew only before the authorities of the flag state or of the accused person's own state.
The Lotus case is cited for two propositions: (1) enforcement cannot be exercised in another state's territory without a permissive rule; and (2) the objective territorial principle (effects felt on a ship treated as territory). Its rule on high-seas collisions has been displaced by Article 97 of UNCLOS.
Flag Principle (The Flag Key)
The second key is the flag key, also called the extra-territorial principle. Jurisdiction travels with ships and aircraft.
- Ships: Under Article 92 of UNCLOS, a ship on the high seas is subject to the exclusive jurisdiction of its flag state, save in exceptional cases expressly provided for in treaties or in the Convention.
- Aircraft: Article 3(1) of the Tokyo Convention, 1963, says: "The State of registration of the aircraft is competent to exercise jurisdiction over offences and acts committed on board."
Embassies are not foreign territory
The old exterritoriality theory, which treated an embassy as foreign territory, has been rejected. The Indian embassy in Tokyo stands on Japanese soil. What an embassy gets is protection, not territorial status.
Article 22(1) of the Vienna Convention on Diplomatic Relations, 1961, says:
"The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission."
India's Diplomatic Relations (Vienna Convention) Act, 1972, gives the force of law to the Convention provisions set out in its Schedule.
Inviolability is a closed door, not a foreign country. An embassy is inviolable, but it remains part of the territory of the receiving state.
Nationality Principle (The Passport Key)
Active nationality principle
A state may try its own nationals for crimes committed anywhere.
Farhan, an Indian citizen working in Dubai, forges his employer's cheques and flies home to Lucknow. India can try him.
Passive nationality principle
A state claims jurisdiction because the victim is its national. This is the weakest and most debated key. It is often accepted only for grave crimes such as terrorism, and Section 1 of the B.N.S. does not use it.
| Point | Active nationality | Passive nationality |
|---|---|---|
| Basis | The offender is a national | The victim is a national |
| Scope | Crimes committed anywhere by the state's own nationals | Weakest and most debated key; often accepted only for grave crimes such as terrorism |
| Use in Section 1 of the B.N.S. | Yes (Section 1(5)(a)) | Not used |
Extra-territorial Jurisdiction under Indian Law
Section 1(4) and 1(5) of the B.N.S.
India writes these keys into the B.N.S.
Section 1(4):
"Any person liable, by any law for the time being in force in India, to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Sanhita for any act committed beyond India in the same manner as if such act had been committed within India."
Section 1(5) says: "The provisions of this Sanhita shall also apply to any offence committed by" three groups:
- Clause (a): "any citizen of India in any place without and beyond India";
- Clause (b): "any person on any ship or aircraft registered in India wherever it may be";
- Clause (c): "any person in any place without and beyond India committing offence targeting a computer resource located in India."
Explanation: "In this section, the word 'offence' includes every act committed outside India which, if committed in India, would be punishable under this Sanhita."
Illustration: "A, who is a citizen of India, commits a murder in any place without and beyond India. He can be tried and convicted of murder in any place in India in which he may be found."
| Clause of Section 1(5) B.N.S. | Who is covered | Key used |
|---|---|---|
| Clause (a) | Any citizen of India, anywhere outside India | Passport key (active nationality) |
| Clause (b) | Any person on a ship or aircraft registered in India, wherever it may be | Flag key |
| Clause (c) | Any person abroad committing an offence targeting a computer resource located in India | The tail of a crime in the digital age |
Procedure: Section 208 of the B.N.S.S.
The procedure is in Section 208 of the B.N.S.S. When an offence is committed outside India:
- Clause (a): "by a citizen of India, whether on the high seas or elsewhere"; or
- Clause (b): "by a person, not being such citizen, on any ship or aircraft registered in India",
then "he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found or where the offence is registered in India".
Proviso: "Provided that notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government."
Offences committed outside India cannot be inquired into or tried in India without the previous sanction of the Central Government. Such trials touch foreign relations, so the Central Government acts as the gatekeeper.
Extradition
If the accused is abroad, the state must seek extradition.
Extradition is the formal surrender of a person by one state to another, usually under a treaty.
- In India, extradition is governed by the Extradition Act, 1962.
- The requested state decides according to the treaty, its own law, and its relations with the requesting state.
- Many countries refuse to surrender their own citizens and try them at home instead.
Protective Principle (The Shield Key)
A state may try a foreigner who, while abroad, acts against its security or vital interests, for example through:
- espionage (spying);
- plots against the government;
- counterfeiting its currency; or
- forging its official documents.
A gang abroad prints forged Indian passports and visa stamps for sale. No member is Indian and nothing has happened in India yet, but India's border security is under attack, so India may rely on the protective principle.
Since "vital interests" is a flexible phrase, this key must be kept for genuine threats.
Universality Principle (The Master Key)
Under the universality principle, no link with the state is needed at all. Some crimes are so grave that they injure all humanity, so any state that catches the offender may try him.
Piracy: the oldest example
Article 101 of UNCLOS says: "Piracy consists of any of the following acts":
- Clause (a): "any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed" either:
- "on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft"; or
- "against a ship, aircraft, persons or property in a place outside the jurisdiction of any State";
- Clause (b): "any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft";
- Clause (c): "any act of inciting or of intentionally facilitating an act described in" clause (a) or (b).
Depredation means plunder.
Article 105 of UNCLOS adds:
"On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith."
India and the universality principle
India uses this key through the Maritime Anti-Piracy Act, 2022.
The MV Ruen piracy prosecution: In March 2024, the Indian Navy recaptured the MV Ruen, a ship flying the flag of Malta that Somali pirates had hijacked, and brought 35 pirates to Mumbai. Held: in July 2026, a special court in Mumbai sentenced them, together with pirates from a second hijacking (44 men in all), to life imprisonment, the first convictions under the Maritime Anti-Piracy Act, 2022. Principle: the ship was not Indian, the pirates were not Indian, and the high seas belong to no state, yet an Indian court had jurisdiction under the universality principle.
Apart from piracy, universal jurisdiction is also widely accepted for:
- genocide;
- war crimes;
- crimes against humanity;
- slavery; and
- torture.
Even the master key does not remove the locks
The Eichmann case: Adolf Eichmann, a senior Nazi official who organised the deportation of Jews to death camps, was secretly seized by Israeli agents in Argentina in 1960 and tried in Israel, where the courts relied on the universal and protective principles. Argentina complained of a violation of its sovereignty, and in Resolution 138 the Security Council requested Israel "to make appropriate reparation". Principle: the key (basis of jurisdiction) was valid, but the method of seizure broke a lock (the sovereignty of another state).
Limits on Jurisdiction: The Two Locks
First lock: sovereignty of other states
Article 2(1) of the United Nations Charter says: "The Organization is based on the principle of the sovereign equality of all its Members."
- One state's power ends where another state's power begins.
- A state wanting a person abroad must "knock", through extradition or consent, and never break the door down.
- For the same reason, a foreign state generally cannot be sued in another state's courts for its sovereign acts.
Second lock: diplomatic immunity
A foreign diplomat in Delhi jumps a red light and injures a delivery rider. The rules of diplomatic immunity below decide what India can and cannot do.
Article 29 of the Vienna Convention on Diplomatic Relations (personal inviolability):
"The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity."
Article 31(1) (criminal immunity): "A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State."
Civil and administrative immunity follows, except for:
- a real action on private immovable property in the receiving state not held for the mission;
- succession matters in which the agent is involved in a private capacity; and
- professional or commercial activity outside official functions.
Immunity is not impunity
| Provision | Remedy | Rule |
|---|---|---|
| Article 32 | Waiver | The sending state may waive the immunity, and the waiver must always be express. |
| Article 9 | Persona non grata | The receiving state may, at any time and without explaining its decision, declare the diplomat persona non grata (an unwelcome person); the sending state must then recall him or end his functions. |
| Article 31(4) | Jurisdiction of the sending state | "The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State." His own country can still use its passport key. |
Immunity is not impunity. Immunity only bars the receiving state's jurisdiction; the sending state can waive it (expressly), the receiving state can declare the diplomat persona non grata, and the sending state keeps jurisdiction under the active nationality principle.
Solving the Cargo Ship Puzzle
| State | Key held | Result |
|---|---|---|
| India | Flag key: the stabbing happened on an Indian ship on the high seas | Strongest claim. Section 1(5)(b) of the B.N.S. applies, and once the cook is in India, Section 208 of the B.N.S.S. allows his trial with the Central Government's sanction. |
| Portugal | Active passport key: the cook is a Portuguese citizen | May claim jurisdiction over its own national. |
| Sri Lanka | Passive nationality: the victim is a Sri Lankan citizen | Only a weak claim. |
| Singapore | No key | The crime was not on its territory, and it is not piracy, which needs an attack on another ship, not a fight within one. Singapore can only hand the cook over, for example through extradition. |
Piracy requires an attack on another ship or aircraft (or on persons or property outside any state's jurisdiction). A crime committed by one crew member against another on board the same ship is not piracy, so universal jurisdiction does not arise.
Quick revision
- Jurisdiction has three parts: the pen (legislative or prescriptive), the handcuffs (executive or enforcement) and the gavel (judicial or adjudicative).
- Only the pen travels; enforcement stops at the border unless the other state agrees (Lotus case).
- Five keys open the courtroom door: place (territorial), flag, passport (nationality), shield (protective) and master (universality).
- Two locks can block it: the sovereignty of other states and immunity.
- Memory aid: three, five and two (three kinds, five keys, two locks).
