State Jurisdiction: Nationality; Extradition; Asylum
By: Pradeep yadav
Date: 4 August, 2019
Date: 4 August, 2019
State Jurisdiction is the legal boundary of the state to govern its persons and property by its Municipal law. It is an essential feature of a state to exercise its control over all the people so that people can live in a good environment and rule of law can be maintained.
Civil Jurisdiction is the concern of private international law. Public international law confines itself to criminal jurisdiction. In civil matters, the municipal courts apply private international law in the cases in which foreign element is involved.
International law sets little or no limitation on the jurisdiction which a particular state may arrogate to itself.
Civil Jurisdiction is the concern of private international law. Public international law confines itself to criminal jurisdiction. In civil matters, the municipal courts apply private international law in the cases in which foreign element is involved.
International law sets little or no limitation on the jurisdiction which a particular state may arrogate to itself.
Basis of Jurisdiction
In practice, there is no one principle which is followed by the states in the practice of criminal jurisdiction. Following are the general principles on which the criminal jurisdiction is claimed by the states:
1. Principle of Territorial Jurisdiction
The place where the crime is committed gets the Jurisdiction under this principle. Sometimes a crime is committed in more than one state, under that situation it becomes complex to exercise the jurisdiction of a state.
a. Subjective Territorial principle: This principle allows the Jurisdiction of the state where crime is commenced but completed in the territory of another state. E.g. The parties under the Geneva Convention for the suppression of Illicit Drug traffic are under an obligation to punish the offenders if the preparation takes place in their territory.
b. Objective Territorial Principle: Under this principle, the states claim jurisdiction over offences which are completed in their territory. Both the English and American courts recognize this principle.
Immunities from Territorial Jurisdiction
Under International law, the following entities are exempted from Territorial Jurisdiction:
1. Diplomatic Agents: They enjoy immunity under civil and criminal jurisdiction.
2. Embassies: Embassies situated in other states are immune from the jurisdiction of the state.
3. Foreign Sovereign: They enjoy immunity over local civil and criminal jurisdiction.
4. Foreign Armed forces: Armed forces often stay on the territories of different nations. They are considered as extraterritorial and therefore they remain under the jurisdiction of the state to which they belong.
5. Foreign warship and their crew: They have immunity from the jurisdiction of the local state.
1. Principle of Territorial Jurisdiction
The place where the crime is committed gets the Jurisdiction under this principle. Sometimes a crime is committed in more than one state, under that situation it becomes complex to exercise the jurisdiction of a state.
a. Subjective Territorial principle: This principle allows the Jurisdiction of the state where crime is commenced but completed in the territory of another state. E.g. The parties under the Geneva Convention for the suppression of Illicit Drug traffic are under an obligation to punish the offenders if the preparation takes place in their territory.
b. Objective Territorial Principle: Under this principle, the states claim jurisdiction over offences which are completed in their territory. Both the English and American courts recognize this principle.
Immunities from Territorial Jurisdiction
Under International law, the following entities are exempted from Territorial Jurisdiction:
1. Diplomatic Agents: They enjoy immunity under civil and criminal jurisdiction.
2. Embassies: Embassies situated in other states are immune from the jurisdiction of the state.
3. Foreign Sovereign: They enjoy immunity over local civil and criminal jurisdiction.
4. Foreign Armed forces: Armed forces often stay on the territories of different nations. They are considered as extraterritorial and therefore they remain under the jurisdiction of the state to which they belong.
5. Foreign warship and their crew: They have immunity from the jurisdiction of the local state.
2. Nationality principle
It is also often recognized as having an independent jurisdiction. Most states place limitations on the nationality principle and it is often confined to serious offences.
The personal jurisdiction is exercised based on:
a. Active nationality principle: Many states punish their citizens even if the crime takes place in some other country.
b. Passive nationality principle: The states claim jurisdiction when he is found committing the crime on its territory.
It is also often recognized as having an independent jurisdiction. Most states place limitations on the nationality principle and it is often confined to serious offences.
The personal jurisdiction is exercised based on:
a. Active nationality principle: Many states punish their citizens even if the crime takes place in some other country.
b. Passive nationality principle: The states claim jurisdiction when he is found committing the crime on its territory.
3. Protective Security Principle
Under this principle, a State may exercise jurisdiction in respect of offences which, although occurring abroad and committed by non-nationals, are regarded as injurious to the State’s security. Currency, immigration and economic offences are frequently punished.
Under this principle, a State may exercise jurisdiction in respect of offences which, although occurring abroad and committed by non-nationals, are regarded as injurious to the State’s security. Currency, immigration and economic offences are frequently punished.
4. Principle of Universal Jurisdiction
A State claiming to act under universality principle claims to exercise jurisdiction over any offender irrespective of any question of nationality or the place of commission of the offence, or any link between the prosecuting state and the offender. It is solely based on the nature of the crime. These crimes are so destructive of the international order and are contrary to the interests of the international community as a whole that they are treated as international crimes. E.g. War crimes and Piracy at the sea.
A State claiming to act under universality principle claims to exercise jurisdiction over any offender irrespective of any question of nationality or the place of commission of the offence, or any link between the prosecuting state and the offender. It is solely based on the nature of the crime. These crimes are so destructive of the international order and are contrary to the interests of the international community as a whole that they are treated as international crimes. E.g. War crimes and Piracy at the sea.
Nationality
Nationality is the legal status which an individual acquires by his membership of an independent political community, which determines his rights and obligations at international law.
Nationality and Domicile
Nationality is a creature of municipal law; it denotes the relation of a man with his nation. On the other hand, domicile denotes the residence of the person. A person may acquire nationality through domicile.
Nationality and Citizenship
Nationality under international law is the legal relationship which exists between the nation and the individual. Citizenship, on the other hand, denotes the relations between the person and the state law. Citizens are the people who possess full political rights of a state.
Acquisition of Nationality
1. Nationality acquired by Birth: Every state provides nationality by birth or descent (being born to parents who are its nationals)
2. Nationality by birth (jus soli): All persons whose birth takes place within territorial limits of a state acquire the nationality of that State. This principle is followed by USA, UK and many Latin American countries.
3. Nationality acquired subsequently: In the majority of states, nationality is also acquired by operation of law after certain changes in the civil status of an individual like marriage, adoption, legitimation, affiliation and naturalization.
a. Marriage: Wife automatically gets the nationality of her husband’s nation through privileged naturalization procedures.
b. Adoption and Legitimation: This process creates the nationality of an individual
c. Resumption: A person, who has lost his nationality by naturalization or other reasons, may acquire the nationality of the same State again. The acquisition of this kind is called reintegration or resumption.
d. Subjugation: A person may acquire nationality when a part of the territory of a State or a State itself is subjugated by another State.
e. Cession: when a part of the territory is ceded to another state then all the nationals of the former acquires the nationality of the latter state.
f. Registration: This process differs from one state to another state.
g. Naturalisation: when a person lives in another state for a long time then he acquires the citizenship of that State.
Nationality and Domicile
Nationality is a creature of municipal law; it denotes the relation of a man with his nation. On the other hand, domicile denotes the residence of the person. A person may acquire nationality through domicile.
Nationality and Citizenship
Nationality under international law is the legal relationship which exists between the nation and the individual. Citizenship, on the other hand, denotes the relations between the person and the state law. Citizens are the people who possess full political rights of a state.
Acquisition of Nationality
1. Nationality acquired by Birth: Every state provides nationality by birth or descent (being born to parents who are its nationals)
2. Nationality by birth (jus soli): All persons whose birth takes place within territorial limits of a state acquire the nationality of that State. This principle is followed by USA, UK and many Latin American countries.
3. Nationality acquired subsequently: In the majority of states, nationality is also acquired by operation of law after certain changes in the civil status of an individual like marriage, adoption, legitimation, affiliation and naturalization.
a. Marriage: Wife automatically gets the nationality of her husband’s nation through privileged naturalization procedures.
b. Adoption and Legitimation: This process creates the nationality of an individual
c. Resumption: A person, who has lost his nationality by naturalization or other reasons, may acquire the nationality of the same State again. The acquisition of this kind is called reintegration or resumption.
d. Subjugation: A person may acquire nationality when a part of the territory of a State or a State itself is subjugated by another State.
e. Cession: when a part of the territory is ceded to another state then all the nationals of the former acquires the nationality of the latter state.
f. Registration: This process differs from one state to another state.
g. Naturalisation: when a person lives in another state for a long time then he acquires the citizenship of that State.
Nationality of USA is often considered as the world's most powerful.
Loss of Citizenship
1. By release: Some states provide the option that citizens may lose nationality by release.
2. By deprivation: Some states deprive the nationality of a person based on various situations.
3. Long residence abroad: Nationality ends if a person resides in a foreign land for a long period
4. By renunciation: A person may also renounce his nationality if he gets the nationality of some other desired country.
5. Substitution: A person may get the nationality of a State in place of the nationality of another State.
Double Nationality
A person may sometimes possess double nationality due to various factors like marriage, naturalization etc. Most of the states don’t allow double nationality.
Statelessness
Statelessness is a problem of international law. It may result due to the application of conflicting laws by States. It links to great hardship to an individual.
Rights and Duties of an Alien
Aliens have got no rights in international law to be admitted to a country. Admission of aliens is subject to regulation. On admission, the aliens subject themselves to the local laws. Under the international law of responsibility, an alien carries the right of protection by his parent State, although the latter is not duty-bound to exercise that right.
1. By release: Some states provide the option that citizens may lose nationality by release.
2. By deprivation: Some states deprive the nationality of a person based on various situations.
3. Long residence abroad: Nationality ends if a person resides in a foreign land for a long period
4. By renunciation: A person may also renounce his nationality if he gets the nationality of some other desired country.
5. Substitution: A person may get the nationality of a State in place of the nationality of another State.
Double Nationality
A person may sometimes possess double nationality due to various factors like marriage, naturalization etc. Most of the states don’t allow double nationality.
Statelessness
Statelessness is a problem of international law. It may result due to the application of conflicting laws by States. It links to great hardship to an individual.
Rights and Duties of an Alien
Aliens have got no rights in international law to be admitted to a country. Admission of aliens is subject to regulation. On admission, the aliens subject themselves to the local laws. Under the international law of responsibility, an alien carries the right of protection by his parent State, although the latter is not duty-bound to exercise that right.
Extradition (Deportation, Rendition and Expulsion)
Extradition is a formal process through which a person is surrendered by one State to another by a treaty, reciprocity or comity as between the respective States.
Extradition and Deportation
Extradition is on the request of some other state while Deportation is performed in the exclusive interest of the expelling state. Extradition needs the cooperation of at least 2 states, whereas deportation is performed in the exclusive interest of the requesting States.
Extradition and Rendition
Rendition is the surrender of an offender to the requesting State under ad hoc arrangements. E.g. based on reciprocity, or in the absence of an extradition treaty.
Extradition and Exclusion
Exclusion is a system in which an individual is prohibited from staying in one part of a sovereign state. Both deportation and exclusion are non-consensual exercises.
Reasons for Extradition
Often a Criminal commits an offence in one country and flees to some other country to escape detention and avoid conviction. This possesses as a threat for all civilized countries. It is because of this reason that the expedient of extradition was devised by the states. There are various international treaties for extradition between multiple states.
Following are some restrictions on the surrender of fugitive criminals or essential conditions for extradition:
1. No Extradition of Political Criminals: Political offenders are not extradited and this rule is based on considerations of humanity.
2. No extradition for military criminals.
3. No extradition for religious crimes.
4. There should be sufficient evidence for the crime.
5. The crime for which extradition is claimed should be a crime in both the countries.
6. Rule of speciality: The country which gets the person under extradition is entitled to prosecute that person only for the crime for which he was extradited.
Treaty law
Law of extradition is dual law. It has an operation, national as well as international. Presently in the absence of any multilateral treaty, extradition is done by States based on bilateral treaties.
Extradition and Deportation
Extradition is on the request of some other state while Deportation is performed in the exclusive interest of the expelling state. Extradition needs the cooperation of at least 2 states, whereas deportation is performed in the exclusive interest of the requesting States.
Extradition and Rendition
Rendition is the surrender of an offender to the requesting State under ad hoc arrangements. E.g. based on reciprocity, or in the absence of an extradition treaty.
Extradition and Exclusion
Exclusion is a system in which an individual is prohibited from staying in one part of a sovereign state. Both deportation and exclusion are non-consensual exercises.
Reasons for Extradition
Often a Criminal commits an offence in one country and flees to some other country to escape detention and avoid conviction. This possesses as a threat for all civilized countries. It is because of this reason that the expedient of extradition was devised by the states. There are various international treaties for extradition between multiple states.
Following are some restrictions on the surrender of fugitive criminals or essential conditions for extradition:
1. No Extradition of Political Criminals: Political offenders are not extradited and this rule is based on considerations of humanity.
2. No extradition for military criminals.
3. No extradition for religious crimes.
4. There should be sufficient evidence for the crime.
5. The crime for which extradition is claimed should be a crime in both the countries.
6. Rule of speciality: The country which gets the person under extradition is entitled to prosecute that person only for the crime for which he was extradited.
Treaty law
Law of extradition is dual law. It has an operation, national as well as international. Presently in the absence of any multilateral treaty, extradition is done by States based on bilateral treaties.
ASYLUM
Asylum is a Latin word which derives from the Greek word ‘Asylia’ which means inviolable place. These are the cases in which a person leaves his original country of residence and moves to seek protection and residence in some other state of his choice due to various reasons like a threat to his life and liberty, terrorism etc.
Asylum is having two elements. Firstly, shelter and secondly, a degree to active protection on the part of authorities of the state.
Basis of Asylum
Every state has got a right to grant asylum to any person of his choice. The Draft Convention on Territorial Asylum has recognized under Article 1 that the grant of Asylum is the sovereign right of a state. The Security Council Resolution, 2001 has decided that all the states shall deny Asylum to those who finance, plan, support or commit terrorist activities.
Reasons for Asylum
There are many reasons which decide the granting of Asylum by one state to a person. This is usually provided when it is expected that the person will not get a fair trial if he is extradited to the other country. Sometimes the asylum is also provided based on extra-legal grounds or to say on humanitarian grounds. The granting or not granting of Asylum affects the relationship of two states.
Right of Asylum
The right of Asylum is usually provided on the cases of Political Asylum. The Universal Declaration of Human Rights gives the right to seek and to enjoy in other countries asylum from persecution. Asylum should not be provided against the persons who have committed crimes against peace, humanity or war crimes. If a person who seeks asylum has already entered the territory of the respective country then he is not usually deported to the original country and given a provisional asylum.
Asylum is having two elements. Firstly, shelter and secondly, a degree to active protection on the part of authorities of the state.
Basis of Asylum
Every state has got a right to grant asylum to any person of his choice. The Draft Convention on Territorial Asylum has recognized under Article 1 that the grant of Asylum is the sovereign right of a state. The Security Council Resolution, 2001 has decided that all the states shall deny Asylum to those who finance, plan, support or commit terrorist activities.
Reasons for Asylum
There are many reasons which decide the granting of Asylum by one state to a person. This is usually provided when it is expected that the person will not get a fair trial if he is extradited to the other country. Sometimes the asylum is also provided based on extra-legal grounds or to say on humanitarian grounds. The granting or not granting of Asylum affects the relationship of two states.
Right of Asylum
The right of Asylum is usually provided on the cases of Political Asylum. The Universal Declaration of Human Rights gives the right to seek and to enjoy in other countries asylum from persecution. Asylum should not be provided against the persons who have committed crimes against peace, humanity or war crimes. If a person who seeks asylum has already entered the territory of the respective country then he is not usually deported to the original country and given a provisional asylum.
Asylum based on Humanity is a common phenomenon.
Kinds of Asylum
There are two types of Asylum which are as follows:
1. Territorial Asylum: It is granted by a state on its territory. There are various types of territorial asylum like:
A. Political asylum: It is given for political people
B. Refugee asylum: It is given to those who fear persecution in their own country.
C. General asylum: It is given to people who leave their country for economic reasons.
Provisional asylum is given to the person seeking asylum from persecution and should not be subject to rejection.
There are two types of Asylum which are as follows:
1. Territorial Asylum: It is granted by a state on its territory. There are various types of territorial asylum like:
A. Political asylum: It is given for political people
B. Refugee asylum: It is given to those who fear persecution in their own country.
C. General asylum: It is given to people who leave their country for economic reasons.
Provisional asylum is given to the person seeking asylum from persecution and should not be subject to rejection.
Refugee Asylum is often given in European countries for the people who are affected by war in Syria.
2. Extra-Territorial Asylum: It is granted to a person, not on its physical territory but its notional territories like the embassy and consular premises.
Following are the kinds of extraterritorial asylum:
A. Diplomatic asylum: Head of the embassy is not having any power under international law to grant asylum. Where there is local custom, the diplomatic asylum is permissible in those cases or under any special treaty.
B. Asylum in consular Premises: The general principles of diplomatic asylum also apply on consular premises.
C. Asylum in international institutions: There is no rule to provide asylum in the case of international institutions. Temporary asylum is granted in the cases of danger to the life of that person.
D. Asylum in Warships: Where there is an extreme threat to the life of a person then asylum can also be provided in the warships by the commander of the ship.
Following are the kinds of extraterritorial asylum:
A. Diplomatic asylum: Head of the embassy is not having any power under international law to grant asylum. Where there is local custom, the diplomatic asylum is permissible in those cases or under any special treaty.
B. Asylum in consular Premises: The general principles of diplomatic asylum also apply on consular premises.
C. Asylum in international institutions: There is no rule to provide asylum in the case of international institutions. Temporary asylum is granted in the cases of danger to the life of that person.
D. Asylum in Warships: Where there is an extreme threat to the life of a person then asylum can also be provided in the warships by the commander of the ship.
