State Jurisdiction: Five Principles and the Lotus Case

Jurisdiction is the power of a state to regulate conduct by making laws, enforcing them and deciding cases. It is a central aspect of sovereignty, but because conduct often crosses borders, two or more states may claim to regulate the same act. International law sets limits through a small number of recognised bases. This note covers the kinds of jurisdiction, the Lotus case, the five principles and Indian law.

1. Kinds of Jurisdiction

Figure 1: Three forms of jurisdiction

• Enforcement is territorial. A state may not exercise its power in any form in the territory of another state without its consent; arresting a person abroad violates the other state's sovereignty.
• Prescription can reach abroad. A state may make laws applicable to acts abroad where a recognised basis exists, and enforce them when the person comes within its territory.

2. The Lotus Case (France v Turkey), PCIJ, 1927

• Facts. On the high seas, the French steamer Lotus collided with the Turkish collier Boz-Kourt, which sank, and eight Turkish nationals died; when the Lotus reached Constantinople, Turkey prosecuted the French officer of the watch, Lieutenant Demons.
• Held. By the casting vote of the President, Turkey had not acted contrary to international law; the effects of the offence were felt on the Turkish vessel, which was assimilated to Turkish territory, so Turkey could exercise jurisdiction on the objective territorial principle; no rule gave the flag state exclusive jurisdiction over collisions.
• The Lotus principle. Restrictions on the independence of states cannot be presumed: states have a wide measure of discretion to extend their laws to acts outside their territory, limited only by prohibitive rules; this presumption is now widely criticised.
• Later reversal. For collisions, flag state or national jurisdiction now applies under Article 11 of the High Seas Convention, 1958 and Article 97 of UNCLOS (Topic 28)

3. The Five Principles

Figure 2: Bases identified in the Harvard Research Draft Convention, 1935

• Territorial principle. The primary basis: a state may regulate acts within its territory; subjectively, acts begun in its territory and completed abroad; objectively, acts begun abroad and completed or taking effect in its territory.
• Effects doctrine. An extension of objective territoriality to conduct abroad that produces substantial effects within the state, as in US antitrust law (Alcoa, 1945); the European Court of Justice relied instead on implementation within the EU (Wood Pulp, 1988)
• Nationality principle. A state may regulate the conduct of its nationals anywhere; widely accepted, especially for serious crimes.
• Passive personality. A state may punish acts abroad that harm its nationals; once controversial, as in the Cutting case between the US and Mexico (1886), it is now accepted for terrorism and similar crimes (United States v Yunis, 1991)
• Protective principle. A state may punish acts abroad threatening its security, currency or vital functions, such as counterfeiting or espionage; in Joyce v DPP (1946), an alien who held a British passport owed allegiance and could be convicted of treason for broadcasts from Germany.
• Universality principle. Any state may try certain crimes, such as piracy, war crimes, genocide, crimes against humanity and torture, regardless of where committed or by whom (Topic 34)

Figure 3: Cases on the bases of jurisdiction

4. Other Questions

• Ships and aircraft. The flag state has jurisdiction over its ships, and the state of registration over its aircraft, wherever they are, concurrently with the territorial state when they are in foreign territory.
• Abduction. Under the maxim male captus bene detentus, many courts try persons brought before them by irregular means, as Israel did with Eichmann (1961) and the US Supreme Court allowed in Alvarez-Machain (1992), though the abduction itself violates the other state's sovereignty.
• Concurrent jurisdiction. Several states may have valid bases; international law has no general rule of priority or of double jeopardy between states, so conflicts are resolved through comity and treaties.

5. Indian Law

• Bharatiya Nyaya Sanhita, 2023. Section 1(5), corresponding to section 4 of the IPC, extends the Sanhita to offences by Indian citizens anywhere, offences on ships or aircraft registered in India, and offences targeting computer resources located in India.
• BNSS, 2023. Section 208, corresponding to section 188 CrPC, allows an offence committed outside India by a citizen, or by any person on an Indian ship or aircraft, to be dealt with as if committed in India, but requires the previous sanction of the Central Government for inquiry or trial.
• Mobarik Ali Ahmed v State of Bombay (1957). A Pakistani national in Karachi who induced a Bombay firm by letters, telegrams and telephone calls to pay money was triable in Bombay for cheating, because the offence was completed there; corporeal presence in India was unnecessary.
• Special statutes. Laws such as the Maritime Anti-Piracy Act, 2022 and the Anti-Hijacking Act, 2016 confer jurisdiction on the bases recognised by international law.

6. Frequently Asked Questions

Can a foreigner who never entered India be tried for an offence completed in India?

Yes. In Mobarik Ali Ahmed (1957), the Supreme Court held that a Pakistani national who caused a fraud to be completed in Bombay through letters and calls from Karachi was triable in India, on the objective territorial principle.

What is the Lotus principle?

That states may extend their laws and the jurisdiction of their courts to persons and acts outside their territory except where a prohibitive rule of international law forbids it, so that restrictions on state independence are not presumed.

7. Related Topics

• Topic 28: Law of the Sea II. Collisions and Article 97.
• Topic 34: Universal Jurisdiction. Eichmann, Pinochet and Arrest Warrant.
• Topic 41: Extradition. Securing the accused from abroad.