Jurisdiction and State Responsibilty

INTRODUCTION

Jurisdiction and State Responsibility are two foundational pillars of Public International Law that govern how states interact with one another and how they are held accountable for their actions on the international stage. Jurisdiction defines the authority of a state to exercise its sovereign powers — legislative, executive, and judicial — over persons, property, and events. State Responsibility, on the other hand, determines when a state has violated an international obligation and what consequences follow from such violation.

In the Indian context, these principles find expression through the provisions of the Constitution of India, 1950, the Bharatiya Nyaya Sanhita (BNS) 2023, and the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 — which replaced the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973 respectively. India, as a sovereign state, exercises jurisdiction consistent with international law while also being bound by international norms of state responsibility through its treaty obligations, customary international law, and constitutional provisions.
This paper undertakes an exhaustive examination of the various types of jurisdiction recognized under international law, the principles of criminal jurisdiction, the doctrine of state responsibility, and the remedies available upon breach — all examined through the dual lens of international law and the Indian domestic legal framework.
 

CHAPTER I: JURISDICTION OF STATES

Jurisdiction is a term of art in international law that refers to the competence of a state to prescribe rules of conduct, to enforce those rules, and to adjudicate disputes arising under them. It is an aspect of sovereignty, but is limited by the rights of other states. The Permanent Court of International Justice (PCIJ) in the Lotus Case (1927) laid the foundational principle that while states enjoy a presumption of freedom to exercise jurisdiction, they must not infringe upon the territorial sovereignty of another state.
Jurisdiction is traditionally categorized into three forms: (1) Prescriptive Jurisdiction — the power to make rules; (2) Enforcement Jurisdiction — the power to compel compliance; and (3) Adjudicative Jurisdiction — the power of courts to hear and decide cases. Each of these may be exercised on different bases, as explained below.

1.1 Territorial Jurisdiction
Territorial jurisdiction is the most fundamental and universally recognized basis of jurisdiction. It flows directly from the concept of sovereignty. Every state has the exclusive right to exercise jurisdiction over all persons, property, and events within its territory. This principle was affirmed in the Island of Palmas Case (1928), where the arbitrator declared that 'sovereignty in the relations between States signifies independence... the right to exercise therein, to the exclusion of any other State, the functions of a State.'

Territorial jurisdiction has two sub-principles: (a) Subjective Territorial Principle — jurisdiction over an act commenced within the state's territory, even if completed abroad; and (b) Objective Territorial Principle — jurisdiction where the act is completed or produces its harmful effects within the territory, even if commenced abroad. The latter principle was crystallized in the Lotus Case by the PCIJ.

Indian Constitutional Context
Article 1 of the Constitution of India declares India to be a 'Union of States' with a defined territory comprising States, Union Territories, and other acquired territories. The state's territorial jurisdiction encompasses all these areas. Parliament has exclusive power under Article 246 read with the Union List (Schedule VII) to legislate on matters of territorial waters, continental shelf, and exclusive economic zones.
BNS 2023, Section 1(3) / IPC Equivalent: Section 2: The BNS applies to the whole of India. All offences committed within the territory of India attract the jurisdiction of Indian courts, affirming the subjective territorial principle.
BNSS 2023, Section 177 / CrPC Equivalent: Section 177: Ordinary place of inquiry and trial: Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed — a direct application of territorial jurisdiction in criminal procedure.
State of Maharashtra v. Mayer Hans George (1965): The Supreme Court held that Indian criminal law applies to all acts committed on board a foreign aircraft flying over Indian territory, affirming objective territorial jurisdiction.
R v. Bow Street Magistrate, ex parte Pinochet (1999): Though a UK case, it is instructive regarding the limits of territorial immunity and was cited in Indian academic discourse on universal jurisdiction.

1.2 Personal Jurisdiction (Nationality Principle)
Personal or nationality jurisdiction allows a state to exercise authority over its nationals regardless of where they are located. The principle is premised on the bond of nationality — a legal relationship between the individual and the state that creates mutual rights and obligations. The active nationality principle deals with jurisdiction over nationals who commit acts abroad; the passive nationality principle covers jurisdiction where the victim is a national of the forum state.

Passive personality jurisdiction, though historically controversial, has gained increasing acceptance particularly in cases of terrorism and organized crime under instruments like the UN Convention Against Transnational Organized Crime, 2000.

Indian Constitutional Context
Article 5 to 11 of the Constitution of India deal with citizenship. India follows jus soli (citizenship by birth in territory) and jus sanguinis (citizenship by descent) principles under the Citizenship Act, 1955. The state exercises jurisdiction over its citizens even when they are abroad.

BNS 2023, Section 4 / IPC Equivalent: Section 4: The BNS extends to extraterritorial offences committed by Indian citizens or on Indian-registered ships and aircraft. This provision is the statutory embodiment of the active nationality principle in Indian criminal law.

Constitution of India, Article 19: Fundamental rights, including the right to equality and freedom, vest in citizens, establishing the personal nexus between the state and its nationals.

State v. Fateh Chand (1961): The Supreme Court recognized that Indian courts have jurisdiction over offences committed by Indian nationals abroad under the provisions of Section 4 of the Indian Penal Code (now BNS Section 4).

Mobarik Ali Ahmed v. State of Bombay (1957 SC): The Supreme Court held that a Pakistani national who had committed fraud in India by making misrepresentations from Karachi could be tried in India under the objective territorial principle, since the consequences of the act were felt in India.

1.3 Protective Jurisdiction
Protective jurisdiction allows a state to exercise jurisdiction over acts committed abroad by foreign nationals when those acts threaten the security or vital interests of that state. Classic examples include espionage, counterfeiting of the state's currency, forgery of passports, and acts of treason committed abroad against the state.

This basis of jurisdiction is accepted by most states, though its precise contours remain contested. The rationale is that certain offences strike at the very existence or integrity of the state, and it would be impractical to rely solely on the territorial state to prosecute them. The Rome Statute of the ICC recognizes protective jurisdiction implicitly in its treatment of crimes against state sovereignty.

Indian Constitutional and Statutory Context
India's Official Secrets Act, 1923 and the Unlawful Activities (Prevention) Act, 1967 (UAPA) embody the protective principle by extending jurisdiction over acts directed against India regardless of where they are committed.

UAPA, 1967 (as amended in 2019): Section 1(3) extends the Act to offences committed outside India by persons intending to threaten the unity, integrity, security, or sovereignty of India. This is the clearest statutory expression of protective jurisdiction.

BNS 2023, Chapter VII — Offences Against the State: Sections relating to waging war against India (S.147), sedition-equivalent offences (S.152), and espionage-related offences apply extraterritorially where they threaten national security.

Kedar Nath Singh v. State of Bihar (1962 SC): The Supreme Court interpreted sedition provisions narrowly and emphasized that jurisdiction over threats to state sovereignty is constitutionally grounded in Articles 19(2) and the security of the state.
People's Union for Civil Liberties v. Union of India (2004 SC): The Court examined POTA (now UAPA) provisions and upheld state jurisdiction over terror-related acts committed abroad targeting India, validating protective jurisdiction in domestic law.

1.4 Universal Jurisdiction
Universal jurisdiction is the most expansive and legally controversial basis of jurisdiction. It posits that certain crimes are so grave and heinous — being offences against the international community as a whole — that every state has the right (and arguably the obligation) to prosecute the offender, regardless of the nationality of the perpetrator or victim, or the location where the crime was committed.

The crimes typically subject to universal jurisdiction under customary international law include: piracy on the high seas, genocide, crimes against humanity, war crimes, torture, and slavery. The principle finds support in the Geneva Conventions, 1949 (which impose obligations of 'aut dedere aut judicare' — extradite or prosecute), the Convention Against Torture, 1984, and the Rome Statute, 1998.

The landmark case of Arrest Warrant (Congo v. Belgium, 2002) before the ICJ opened significant debate about the limits of universal jurisdiction when it conflicts with sovereign immunity. The Eichmann Case (Israel, 1961) remains the most prominent application of universal jurisdiction, where Israel tried a Nazi war criminal for crimes committed in Europe.

Indian Context
India has not enacted a comprehensive universal jurisdiction statute, but its obligations under ratified treaties create domestic obligations. India is a party to the Geneva Conventions and the Convention Against Torture (though the CAT has not been domestically ratified). The principle appears indirectly in India's extradition law.

Extradition Act, 1962: Section 2(c) defines extraditable offences broadly, and India's bilateral extradition treaties incorporate obligations to prosecute or extradite offenders, reflecting the aut dedere aut judicare principle that underpins universal jurisdiction.

BNSS 2023, Section 188 / CrPC Equivalent: Section 188: Offences committed outside India by Indian citizens or on Indian ships/aircraft may be tried in India, which while technically nationality jurisdiction, forms the gateway through which India approaches universal jurisdiction principles.

Union of India v. Rattan Sarna (2012 SC): The Supreme Court discussed India's obligations under international conventions in the context of extradition and noted that international law norms, including those underlying universal jurisdiction, inform the interpretation of domestic extradition law.

1.5 Extra-territorial Jurisdiction
Extra-territorial jurisdiction refers broadly to a state's assertion of legislative, judicial, or enforcement jurisdiction beyond its physical territory. It encompasses the nationality principle, protective principle, and increasingly the 'effects doctrine' — where jurisdiction is claimed because the harmful effects of an act are felt within the state's territory even if the act itself occurred abroad.

The United States has been the most aggressive proponent of extra-territorial jurisdiction, particularly in antitrust and securities law (Alcoa Case, 1945; Hartford Fire Insurance Co. v. California, 1993). The EU has similarly extended its competition law jurisdiction extraterritorially. In public international law, the limits of extraterritorial jurisdiction are governed by the principle of non-interference in the internal affairs of states (Article 2(7) of the UN Charter).
Indian Constitutional and Statutory Context

India exercises extra-territorial jurisdiction through multiple statutes. The Income Tax Act, 1961 asserts jurisdiction over worldwide income of Indian residents. The FCRA, 2010 regulates foreign contributions by Indian entities. The Prevention of Money Laundering Act (PMLA), 2002 extends to money laundering offences with Indian nexus regardless of where the predicate offence occurred.

BNS 2023, Section 4: Explicitly extends jurisdiction to offences committed by any person on any ship or aircraft registered in India regardless of location, and to Indian citizens committing offences abroad — the broadest statutory assertion of extraterritorial criminal jurisdiction.

Information Technology Act, 2000, Section 75: The Act applies to any offence or contravention committed outside India by any person if the act involves a computer, computer system, or computer network located in India — a classic 'effects doctrine' application.

PMLA, 2002, Section 2(1)(rb): The definition of 'money laundering' and the jurisdiction of the Enforcement Directorate extends to foreign proceeds of crime where the offence has links with India.

Vodafone International Holdings B.V. v. Union of India (2012 SC): The Supreme Court addressed the extraterritorial application of Indian tax law to a transaction occurring entirely outside India, though the decision ultimately held against the government, the case established the framework for analyzing extraterritorial fiscal jurisdiction.

Aryan Khan v. NCB (2021): Though primarily a narcotics case, the Bombay High Court's bail judgment touched upon the extraterritorial reach of India's NDPS Act to acts occurring on foreign vessels in Indian territorial waters — combining territorial and extraterritorial jurisdiction principles.
 

CHAPTER II: CRIMINAL JURISDICTION

Criminal jurisdiction is the specific power of a state's judicial and law enforcement organs to investigate, prosecute, and punish criminal offences. It sits at the intersection of domestic criminal law and international law. In international law, the principles governing when a state may assert criminal jurisdiction are critical to preventing both conflicts between states and gaps in accountability.

The primary bases for criminal jurisdiction mirror the general jurisdictional bases outlined above — territorial, nationality, protective, and universal — but are applied specifically to criminal proceedings. Additionally, international criminal law has developed mechanisms such as the International Criminal Court (ICC) to address situations where no national jurisdiction is willing or able to prosecute.

2.1 Bases of Criminal Jurisdiction
Under international law, five accepted bases of criminal jurisdiction exist: (1) Territorial Principle — both subjective and objective as discussed; (2) Active Nationality Principle — state prosecutes its own nationals; (3) Passive Nationality Principle — state prosecutes offenders who harmed its nationals; (4) Protective Principle — state prosecutes threats to its vital interests; and (5) Universal Principle — jurisdiction over international crimes.

The Lotus Case (PCIJ, 1927) remains the locus classicus of criminal jurisdiction in international law. The PCIJ held that a state may extend its criminal law and jurisdiction to acts occurring abroad provided it does not infringe the exclusive jurisdiction of another state. However, subsequent developments, particularly under treaty law and the UN Charter, have significantly qualified this expansive approach.

2.2 Criminal Jurisdiction in Indian Law
India's criminal jurisdiction framework is primarily governed by the Bharatiya Nyaya Sanhita (BNS) 2023 and the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023. These statutes replaced the IPC 1860 and CrPC 1973 respectively, modernizing India's criminal justice framework while retaining and expanding the jurisdictional bases.

Territorial Criminal Jurisdiction
BNS 2023, Section 1(2): The BNS extends to the whole of India. Every person, regardless of nationality, who commits an offence within India is subject to the jurisdiction of Indian criminal courts. This is the primary territorial basis.
BNSS 2023, Section 177: The ordinary place of trial is within whose local jurisdiction the offence was committed. This provision ensures that territorial nexus determines the competent court in most criminal matters.
BNSS 2023, Section 178: Where it is uncertain in which of several local areas an offence was committed, it may be tried by a Court having jurisdiction over any of those local areas — addressing ambiguities in territorial jurisdiction.
BNSS 2023, Section 179: Where an act is an offence by reason of anything which has been done and of a consequence which has ensued — reflecting the objective territorial principle for criminal trials.

Extraterritorial Criminal Jurisdiction
BNS 2023, Section 4(1): Every person liable by any Indian law to be tried for an offence committed beyond India shall be dealt with according to BNS provisions as if such offence had been committed in India — active nationality principle in criminal law.
BNS 2023, Section 4(2): Extends jurisdiction to offences committed on any ship or aircraft registered in India — flag state jurisdiction.
BNSS 2023, Section 188: Prescribes procedure for trial of offences committed outside India by Indian nationals or on Indian vessels — requires previous sanction of Central Government for prosecution in most cases.

2.3 Concurrent Jurisdiction and Conflicts
In practice, criminal jurisdiction of multiple states may overlap. A cybercrime committed by a German national, targeting a French victim, through a server in Singapore, may give rise to concurrent claims by Germany (nationality), France (passive personality), Singapore (territorial), and potentially India if Indian infrastructure was used. Such conflicts are typically resolved through: (1) diplomatic negotiation; (2) extradition treaties; (3) mutual legal assistance treaties (MLATs); and (4) the principle of ne bis in idem (double jeopardy).

Constitution of India, Article 20(2): No person shall be prosecuted and punished for the same offence more than once — the constitutional guarantee against double jeopardy, which is the domestic expression of ne bis in idem.

BNSS 2023, Section 337: A person once tried and acquitted or convicted cannot be tried again for the same offence — procedural elaboration of Article 20(2).
Leo Roy Frey v. Superintendent, District Jail (1958 SC): The Supreme Court elaborated on the scope of double jeopardy protection under Article 20(2), holding that the previous prosecution must be for the same offence in both fact and law.

2.4 International Criminal Jurisdiction and India
The International Criminal Court (ICC), established by the Rome Statute in 1998, exercises jurisdiction over the most serious international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. Notably, India has not ratified the Rome Statute, citing sovereignty concerns and the Statute's provisions on self-defense and nuclear weapons.

India's position is that the ICC's jurisdiction encroaches upon state sovereignty and that domestic courts are fully capable of addressing international crimes. However, India has participated in ad hoc international criminal tribunals and has incorporated aspects of international humanitarian law into domestic legislation through the Geneva Conventions Act, 1960.

Geneva Conventions Act, 1960: This Act gives effect in Indian law to India's obligations under the four Geneva Conventions of 1949. Section 3 creates criminal offences for 'grave breaches' of the Conventions — the clearest example of universal jurisdiction being incorporated into Indian law.

Ram Jethmalani v. Union of India (2011 SC): The Court, while dealing with black money and Swiss bank accounts, articulated that India's international obligations and the principle of international cooperation in criminal matters require Indian courts to give effect to foreign criminal judgments and mutual legal assistance requests.
 

CHAPTER III: STATE RESPONSIBILITY — MEANING AND NATURE

State Responsibility is one of the oldest and most fundamental doctrines of Public International Law. It deals with the legal consequences that arise when a state fails to fulfill its obligations under international law. In essence, it answers the question: What happens when a state breaks international law?

The modern law of state responsibility is codified in the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), adopted by the International Law Commission (ILC) in 2001. Though not a binding treaty, the ARSIWA have achieved the status of customary international law through widespread acceptance by states and application by international tribunals including the ICJ.

State responsibility is distinct from individual criminal responsibility (which is governed by international criminal law and the ICC Statute). It focuses on the responsibility of states as entities — not their individual officials — though the conduct of officials may be attributed to the state in triggering state responsibility.

3.1 Historical Development
The doctrine of state responsibility evolved through diplomatic practice, arbitral awards, and judicial decisions over centuries. Early forms involved the 'calvo clause' (limiting diplomatic protection) and the 'minimum standard of treatment' for aliens. The Chorzow Factory Case (PCIJ, 1928) established that 'it is a principle of international law that the breach of an engagement involves an obligation to make reparation' — a foundational statement of state responsibility.

The ILC began codifying state responsibility in 1953. After nearly five decades of work under Rapporteurs Garcia-Amador, Ago, Riphagen, Arangio-Ruiz, and Crawford, the ARSIWA were finally adopted in 2001. James Crawford's contribution was particularly significant in resolving longstanding debates about the relationship between primary rules (substantive obligations) and secondary rules (consequences of breach).

3.2 Meaning and Essential Elements
State responsibility arises when: (1) there is an 'internationally wrongful act' — i.e., conduct attributable to the state that constitutes a breach of an international obligation; and (2) that act is attributable to the state under international law. Article 1 of ARSIWA states: 'Every internationally wrongful act of a State entails the international responsibility of that State.'

The doctrine is governed entirely by international law, not domestic law. Even if an act is lawful under a state's domestic law, it may still give rise to international responsibility if it violates an international obligation. This principle — that domestic law cannot excuse a violation of international law — is enshrined in Article 3 of ARSIWA and has been repeatedly affirmed by the ICJ.

Alabama Claims Arbitration (1872): The United States successfully claimed compensation from Great Britain for allowing Confederate warships to be fitted in British ports during the Civil War — an early landmark in state responsibility for failure to prevent third-party acts.

Chorzow Factory Case (PCIJ, 1928): The PCIJ articulated the foundational principle of reparation for internationally wrongful acts, holding that reparation must 'wipe out all consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.'

3.3 India and State Responsibility
As a sovereign state, India is both a subject of international state responsibility and a claimant of such responsibility against other states. India's international obligations arise from bilateral and multilateral treaties, customary international law, and UN Charter obligations. India has been involved in state responsibility issues before international forums, including the ICJ (Kulbhushan Jadhav Case, 2019) and international arbitral tribunals (the Enrica Lexie Case, 2020).

Kulbhushan Jadhav (India v. Pakistan) ICJ (2019): The ICJ found Pakistan in violation of Article 36 of the Vienna Convention on Consular Relations by failing to inform Jadhav of his right to consular access. Pakistan's state responsibility was thus engaged for violation of a treaty obligation owed to India.

Enrica Lexie Case (Italy v. India, PCA, 2020): The Permanent Court of Arbitration held India liable for wrongful exercise of jurisdiction over Italian marines who had been arrested in Indian waters for shooting Indian fishermen — an important case on concurrent jurisdiction and state responsibility.
 

CHAPTER IV: INTERNATIONALLY WRONGFUL ACT

At the heart of the law of state responsibility is the concept of the 'internationally wrongful act.' Under Article 2 of ARSIWA, there is an internationally wrongful act of a state when conduct (an act or omission) is: (a) attributable to the state under international law; and (b) constitutes a breach of an international obligation of the state.

4.1 Conduct Attributable to the State
Not every act of a person connected to a state engages state responsibility. The state acts through organs, agencies, and officials, and only the conduct of these entities can be attributed to the state. ARSIWA Articles 4-11 set out the rules of attribution.

Article 4 provides that the conduct of any state organ — regardless of whether it exercises legislative, executive, judicial, or other functions — constitutes an act of that state. An 'organ' is broadly defined to include ministries, courts, police, military, and any entity whose conduct is directed by the state.

United States Diplomatic and Consular Staff in Tehran (ICJ, 1980): The ICJ held Iran responsible for the seizure of the US Embassy, as the Iranian state ultimately endorsed and adopted the acts of the student militants who initially seized the compound — establishing the 'adoption' doctrine of attribution.

Military and Paramilitary Activities in and against Nicaragua (ICJ, 1986): The ICJ applied the 'effective control' test for attributing the conduct of contras (non-state actors) to the United States, holding that mere support was insufficient — there needed to be effective control over specific operations.

4.2 Breach of an International Obligation
A breach occurs when the state's conduct fails to conform to what the obligation requires, regardless of its origin or nature (treaty, custom, general principle). Article 12 of ARSIWA provides that a state breaches an international obligation when its conduct is not in conformity with what is required of it by that obligation.

The breach may be a single act (instantaneous breach) or a continuing act (a continuing breach, which continues for as long as the act persists and continues to violate the obligation). Composite acts — formed by a series of actions or omissions defined collectively as wrongful — are also recognized under ARSIWA Article 15.

4.3 Serious Breaches of Peremptory Norms (Jus Cogens)
ARSIWA Chapter III (Articles 40-41) introduces a special category: serious breaches of peremptory norms (jus cogens) of international law. Jus cogens norms are those from which no derogation is permitted under any circumstances, such as the prohibition of genocide, crimes against humanity, slavery, and aggression.

When such a serious breach occurs, special consequences follow: all states are obligated to cooperate to bring the breach to an end, and no state may recognize the situation created by the breach as lawful or render aid or assistance in maintaining it. This is the closest international law comes to criminal responsibility of states.

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia v. Serbia, ICJ 2007): The ICJ held Serbia responsible for failing to prevent genocide at Srebrenica, even though the acts were committed by the Republika Srpska's army over which Serbia did not have full control — a significant application of the duty to prevent serious breaches.
 

CHAPTER V: ATTRIBUTION OF RESPONSIBILITY

Attribution is the legal process by which conduct is connected to the state for the purpose of establishing state responsibility. It is a technical legal concept distinct from factual causation. Just because a government official causes harm does not automatically mean the state is responsible — the harm must be attributable to the state under the rules of international law.

5.1 Acts of State Organs (Article 4 ARSIWA)
The conduct of any state organ is attributable to the state, whether that organ belongs to the constituent government, territorial unit, or any other entity entrusted with governmental authority. This includes courts, police, military, legislative bodies, and executive ministries. This rule applies even if the organ exceeds its authority or contravenes instructions — the key is whether it acts in an official capacity ('under color of authority').

Indian Illustration
Actions of Indian police officers (who are state organs) that violate international human rights standards — such as arbitrary detention or torture — constitute acts attributable to India, potentially engaging India's state responsibility under the ICCPR or CAT.

Constitution of India, Article 12: Defines 'State' to include the Government and Parliament of India, state governments, legislatures, and all local and other authorities under the control of the Government — this broad definition aligns with ARSIWA's concept of state organs for attribution purposes in domestic law.

D.K. Basu v. State of West Bengal (1997 SC): The Supreme Court held that illegal arrest and custody amounts to violation of fundamental rights (Articles 21 and 22), for which the state is liable to pay compensation — domestic recognition of state attribution for wrongful acts of its organs (police).

5.2 Persons or Entities Exercising Governmental Authority (Article 5 ARSIWA)
The conduct of a person or entity that is not a state organ in the formal sense but is empowered by the law of the state to exercise governmental authority is also attributable to the state. This covers privatized entities performing public functions, such as private prison management companies, customs inspection companies, and private security contractors.

Yeager v. Iran (Iran-US Claims Tribunal, 1987): The Tribunal held Iran responsible for the acts of Revolutionary Guards, a non-state militia that had been empowered by the new government, as they were effectively exercising governmental authority.

5.3 Acts of Non-State Actors — Effective Control Test
Where non-state actors (rebel groups, paramilitaries, private individuals) commit acts that might give rise to state responsibility, the critical question is whether the state directed or controlled those acts. The ICJ in the Nicaragua Case (1986) formulated the 'effective control' test: the state must have had effective control over the specific operation in which the wrongful act was committed, not merely general control over the group.

In contrast, the ICTY in the Tadic Case (1999) adopted a lower 'overall control' test for attribution in the context of international humanitarian law. The divergence between these two standards remains unresolved in international law.

Pulp Mills on the River Uruguay (Argentina v. Uruguay, ICJ 2010): The ICJ held that Uruguay's failure to conduct a proper environmental impact assessment before authorizing construction of pulp mills on the shared river constituted a breach of the procedural obligations under the 1975 Statute — a case of attribution through regulatory organs.

5.4 Attribution in the Indian Context
India's constitutional framework provides rich jurisprudence on state attribution. Under Article 12, the 'State' for purposes of fundamental rights violations is broadly interpreted to include government instrumentalities, statutory corporations, and sometimes private entities performing public functions.

Ramana Dayaram Shetty v. International Airport Authority (1979 SC): The Supreme Court expanded the concept of 'State' under Article 12 to include bodies that are financially dominated by and subject to pervasive control of the government — establishing the 'deep and pervasive control' test for state attribution in domestic law.
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002 SC): A 7-judge Constitution Bench further elaborated on when statutory and non-statutory bodies constitute 'State' under Article 12, refining attribution principles in Indian constitutional law.
 

CHAPTER VI: CIRCUMSTANCES EXCLUDING WRONGFULNESS

International law recognizes that even acts which would otherwise constitute internationally wrongful acts may be excused or justified in certain circumstances. ARSIWA Articles 20-27 enumerate six such circumstances: consent, self-defense, countermeasures, force majeure, distress, and necessity. These are defenses available to a state against a claim of international responsibility.

It is critical to note that these circumstances do not affect the primary obligation — they merely exclude the wrongfulness of the act. Moreover, even where a circumstance excluding wrongfulness applies, the state is not relieved from its obligation to comply with the primary rule if and when the circumstance ceases; and the state may still be required to compensate for actual losses caused.
Crucially, no circumstance excluding wrongfulness is available with respect to peremptory norms (jus cogens) under Article 26 ARSIWA.

6.1 Consent
Where a state gives its valid consent to another state to perform an act that would otherwise be internationally wrongful, the wrongfulness of that act is precluded as regards the consenting state (Article 20 ARSIWA). Consent may be given in advance (e.g., by treaty) or on an ad hoc basis. However, consent must be: (a) validly given by a state authorized to give it; (b) real and not obtained by coercion or fraud; and (c) not contrary to a jus cogens norm.

Consent is the foundational basis for much of international cooperation: extradition, mutual legal assistance, overflight rights, foreign military bases, and joint patrols all operate on the basis of consent.

Indian Context
India regularly gives and receives consent for activities that would otherwise constitute infringements of sovereignty. The Status of Forces Agreements (SOFA) with foreign militaries during exercises, the extradition treaties, and bilateral legal assistance agreements all operate on the consent principle.

BNSS 2023, Section 196 / CrPC: Section 196: Prosecution for offences against the state or religion etc. requires sanction of the Central Government — reflecting the executive's role in consenting to certain prosecutions, including those with international dimensions.

Bhavesh Jayanti Lakhani v. State of Maharashtra (2009 SC): The Supreme Court held that consent of the concerned state government was essential for prosecution of offences under certain provisions — illustrating how consent structures the exercise of criminal jurisdiction.

6.2 Self-Defense
Under Article 21 of ARSIWA, the wrongfulness of an act is precluded if it constitutes a lawful measure of self-defense taken in conformity with the UN Charter. The right to self-defense is codified in Article 51 of the UN Charter, which permits individual or collective self-defense if an armed attack occurs against a member state, until the Security Council takes measures necessary to maintain international peace and security.

The requirements of lawful self-defense under both Article 51 and customary international law (the Caroline Case standard) are: (1) necessity — there must be an actual or imminent armed attack; (2) proportionality — the response must be proportionate to the attack; (3) immediacy — the response must be in the context of the ongoing attack; and (4) reporting — the state must report measures taken to the Security Council.

The doctrine of 'anticipatory self-defense' (striking before an attack materializes) remains controversial, as does the more expansive 'pre-emptive self-defense' claimed by the US post-9/11. The 2004 ICJ Advisory Opinion in the Wall case and the ICJ judgment in the Oil Platforms Case provide important judicial guidance.

Indian Constitutional Context
The Constitution of India does not explicitly address self-defense in international law terms, but India's national security framework — including the Armed Forces Special Powers Act (AFSPA) and the National Security Act — operates within the constitutional framework of protecting territorial integrity (Article 355) and sovereignty.

BNS 2023, Sections 34-44 — Right of Private Defence: While these provisions address individual self-defense in domestic law, they reflect the underlying principle that a reasonable defensive response to an unlawful attack is legally justified. The doctrine mirrors the international law necessity and proportionality requirements at the domestic level.

India invoked self-defense principles in the 2019 Balakot airstrikes following the Pulwama terrorist attack, asserting the right to take 'non-military pre-emptive action' — a position that generated significant international law debate regarding the threshold for self-defense against non-state actor attacks.

In Re: Terrorist Attack — Pulwama (2019): While this did not go to court in a conventional sense, the Indian government's legal justification for the Balakot strikes referenced Article 51 of the UN Charter and the Caroline criteria, placing it within the international law framework of self-defense as a circumstance excluding wrongfulness.

6.3 Force Majeure
Article 23 of ARSIWA precludes the wrongfulness of an act where it is due to force majeure — the occurrence of an irresistible force or of an unforeseen event, beyond the control of the state, which makes it materially impossible for the state to perform the obligation. Force majeure requires: (a) material impossibility of performance; (b) the event must be irresistible or unforeseeable; and (c) the state must not have contributed to the situation.

Examples of force majeure in international practice include natural disasters that prevent a state from fulfilling treaty obligations, sudden civil unrest making it impossible to protect diplomatic missions, and unforeseen technical failures in nuclear or environmental monitoring systems. The Rainbow Warrior Case (New Zealand v. France, 1990) provides an important analysis of force majeure in the context of treaty obligations.

Indian Context
India's domestic law recognizes force majeure (Act of God) as a defense in contract and administrative law. In international obligations, India has invoked force majeure type circumstances to justify temporary non-compliance with treaty obligations, particularly in environmental and trade agreements.

Indian Contract Act, 1872, Section 56: Frustration of contract due to impossibility of performance — the domestic law analog of force majeure — excuses contractual performance. This principle, when applied to international agreements entered into by India, approximates the international law doctrine.

Energy Watchdog v. CERC (2017 SC): The Supreme Court analyzed the force majeure defense in the context of power purchase agreements, distinguishing between economic hardship and true impossibility — principles that mirror the strict standards applied in international state responsibility law.

6.4 Necessity
Necessity is the most controversial of the circumstances excluding wrongfulness. Under Article 25 of ARSIWA, a state may invoke necessity only in the most exceptional circumstances: where the act is the only means available to safeguard an essential interest against a grave and imminent peril, and the act does not seriously impair an essential interest of the state(s) towards which the obligation exists. Crucially, necessity cannot be invoked if the international obligation expressly or implicitly excludes it, or if the state has contributed to the situation of necessity.

Necessity was successfully invoked in the Gabcikovo-Nagymaros Case (ICJ, 1997) by Hungary (albeit the Court found the conditions were not met in that case), demonstrating that the threshold is very high. The doctrine has been controversially invoked by Argentina in the context of economic crisis measures that violated bilateral investment treaties (BIT cases before ICSID, 2001-2003), with inconsistent results.

The distinction between necessity and force majeure is important: force majeure makes performance impossible; necessity makes it possible but involves the choice to protect a more important interest by sacrificing a lesser obligation.

Indian Context
India's domestic law recognizes analogous doctrines. The constitutional doctrines of 'eminent domain' (the power to acquire private property for public use) and 'police power' (the power to regulate in the public interest) reflect necessity-like reasoning at the domestic level.

Constitution of India, Articles 352-360 — Emergency Provisions: The constitutional framework for national emergency (Article 352), state emergency (Article 356), and financial emergency (Article 360) represents domestic necessity provisions. When invoked, they allow the government to take extraordinary measures to protect essential state interests — mirroring the international law doctrine of necessity.
Disaster Management Act, 2005: This Act provides the legal framework for India to take extraordinary measures in disaster situations — a domestic law analog to necessity defenses in international law.
Minerva Mills v. Union of India (1980 SC): The Supreme Court recognized the doctrine of basic structure, limiting Parliament's power to amend the Constitution even in emergencies — articulating that even necessity-type powers are subject to foundational constraints, mirroring the jus cogens limitation on necessity in international law.
S.R. Bommai v. Union of India (1994 SC): The Supreme Court extensively reviewed the conditions and justiciability of President's Rule under Article 356 — India's key domestic necessity provision — establishing that emergency powers must meet objective standards of necessity and proportionality.

6.5 Distress
Article 24 of ARSIWA provides that wrongfulness is precluded when an organ of the state has no other reasonable way to save its life or the lives of other persons entrusted to its care in a situation of distress. Distress differs from necessity: it is focused on the individual organ's situation (typically a ship captain or aircraft pilot in danger) rather than the state's broader essential interests. Classic examples include ships seeking unauthorized refuge in a foreign port due to a storm, and aircraft making emergency landings without prior permission.

Distress is not available if the situation was caused by the state's own conduct (Article 24(2)(a)) or if the distress act is likely to create a comparable or greater peril.
BNS 2023, Section 45 — Act done in good faith for another's benefit: This provision, while domestic in scope, reflects the underlying humanistic reasoning of distress in international law — that acts taken to protect life in extreme circumstances deserve legal recognition.
 

CHAPTER VII: CONSEQUENCES OF STATE RESPONSIBILITY

Once state responsibility is established — i.e., once an internationally wrongful act attributable to the state is identified and no circumstance excluding wrongfulness applies — certain legal consequences follow. ARSIWA Part Two (Articles 28-41) addresses these consequences. The responsible state is under obligations to: (1) continue to perform the violated obligation; (2) cease the wrongful act; (3) offer assurances of non-repetition; and (4) make full reparation for injury caused.

The Chorzow Factory Principle (PCIJ, 1928) is the cornerstone: 'reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.'

7.1 Cessation and Non-Repetition
Article 30 of ARSIWA requires the responsible state to cease the wrongful act if it is continuing, and to offer appropriate assurances and guarantees of non-repetition if circumstances so require. Cessation is the primary obligation — the state must stop doing whatever it is doing that violates international law. Assurances and guarantees of non-repetition are prospective measures aimed at preventing future violations.
In the LaGrand Case (Germany v. United States, ICJ 2001), the ICJ ordered the US to provide assurances of non-repetition regarding its failure to comply with ICJ provisional measures — an important precedent on the binding nature of non-repetition obligations.

Kulbhushan Jadhav (India v. Pakistan, ICJ 2019): The ICJ ordered Pakistan to cease the violation and provide effective review of Jadhav's conviction — a combination of cessation and remedial action as consequences of Pakistan's state responsibility for violating consular access obligations.

7.2 Reparation — General Principles
Article 31 of ARSIWA establishes that the responsible state is obligated to make full reparation for injury caused by the internationally wrongful act. 'Injury' includes any damage, whether material or moral, caused to the injured state. The forms of reparation are: (1) restitution; (2) compensation; and (3) satisfaction — either singly or in combination (Article 34).

The obligation of reparation flows automatically from state responsibility — it does not require separate proof beyond the establishment of the internationally wrongful act. The test is what would have existed 'but for' the wrongful act — requiring a causal link between the act and the injury.

7.3 Restitution
Restitution is the first and preferred form of reparation. Under Article 35 of ARSIWA, the responsible state is obligated to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution: (a) is not materially impossible; and (b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.

Restitution may be physical (return of property, release of detained persons, annulment of an unlawful judicial decision) or legal (repeal of a law that violates an international obligation). The Temple of Preah Vihear Case (Cambodia v. Thailand, ICJ 1962) involved restitution in the form of Thailand returning objects removed from the temple after the Court established Thailand's internationally wrongful possession of the territory.

Indian Context
In domestic constitutional law, writs of habeas corpus, mandamus, certiorari, prohibition, and quo warranto under Article 32 and 226 of the Constitution serve functions analogous to restitution — restoring the status quo ante by releasing illegally detained persons, quashing unlawful orders, and compelling the performance of public duties.

Constitution of India, Article 32: The right to move the Supreme Court for enforcement of fundamental rights — including through writs that restore the status quo — is India's primary domestic analog to the international law remedy of restitution.
Nilabati Behera v. State of Orissa (1993 SC): The Supreme Court awarded compensation and ordered restitution of rights in a custodial death case, characterizing the award not as tort compensation but as a 'constitutional remedy' — a domestic application of state responsibility principles including restitution.

7.4 Compensation
Compensation is the most commonly ordered remedy in international state responsibility. Under Article 36 of ARSIWA, the responsible state shall compensate for damage caused by the internationally wrongful act insofar as such damage is not made good by restitution. Compensation covers: (a) financially assessable damage including loss of profits; and (b) consequential damages causally connected to the wrongful act.

The calculation of compensation in international law follows three main approaches: (1) market value (for expropriated property); (2) discounted cash flow analysis (for business losses); and (3) diplomatic protection amounts (for injury to nationals). Interest is also payable if appropriate to ensure full reparation.

Notable examples of state compensation orders include: Iran-US Claims Tribunal awards (post-1979 revolution claims); ICSID arbitral awards for breach of BITs; and ICJ awards in the Corfu Channel Case (UK v. Albania, 1949 — the first substantive ICJ judgment ordering compensation).

Indian Constitutional Compensation Jurisprudence
The Supreme Court of India has developed a rich jurisprudence on state compensation for fundamental rights violations — an area where domestic constitutional law resonates strongly with international state responsibility principles.

Rudul Shah v. State of Bihar (1983 SC): Landmark case where the Supreme Court ordered monetary compensation under Article 32 for illegal detention for 14 years after acquittal — establishing constitutional compensation as a distinct remedy for state violations of fundamental rights.
Sebastian M. Hongray v. Union of India (1984 SC): The Court awarded 'exemplary costs' as symbolic compensation where two persons taken into army custody disappeared — an early form of satisfaction alongside compensation in constitutional tort.
State of Maharashtra v. Ravikant S. Patil (1991 SC): The Supreme Court reaffirmed that compensation under Article 32/226 is available as a public law remedy for wrongful state action, distinct from and additional to private law remedies in tort.
BNS 2023 — Compensation Provisions: Section 396 BNS (analogous to CrPC Section 357) empowers courts to award compensation to victims of crime from fines imposed on accused — a criminal law mechanism for victim compensation that parallels international reparation principles.
BNSS 2023, Section 396 (formerly CrPC Section 357A): Victim Compensation Scheme — States must establish victim compensation funds; courts may direct the State Legal Services Authority to award compensation — reflecting a structured approach to compensating victims of state failures in criminal law.

7.5 Satisfaction
Satisfaction is the remedy provided for non-material injury — injury to the state itself (as opposed to its nationals or property), particularly for violations of its dignity, sovereignty, or international personality. Under Article 37 of ARSIWA, satisfaction may consist of: (a) an acknowledgment of the breach; (b) an expression of regret; (c) a formal apology; or (d) other appropriate modalities.

The key limitation is proportionality — satisfaction should not take a form humiliating to the responsible state. The most common forms of satisfaction in modern practice are: formal apologies (particularly for violation of diplomatic premises or mistreatment of diplomats), judicial declarations of unlawfulness, and symbolic compensation.
The Rainbow Warrior Case (1990) involved France paying satisfaction (NZ$7 million) and providing an apology to New Zealand for bombing the Greenpeace vessel in Auckland harbour — a classic example of satisfaction combined with compensation.

Indian Context
While Indian domestic law does not use the term 'satisfaction,' the Supreme Court's practice of issuing declaratory judgments of unconstitutionality, awarding symbolic compensation, and requiring public apologies in certain PIL matters functions analogously.
Vishaka v. State of Rajasthan (1997 SC): The Supreme Court issued comprehensive guidelines (now superseded by POSH Act) acknowledging the state's failure to protect working women from sexual harassment — a form of satisfaction acknowledging systemic state failure.
Extra Judicial Execution Victim Families Association (EEVFAM) v. Union of India (2016 SC): The Court directed investigation into alleged fake encounters in Manipur, acknowledging that extrajudicial killings by security forces constitute human rights violations and state responsibility, and directed the state to compensate families — combining compensation and satisfaction.
 

CHAPTER VIII: DIPLOMATIC PROTECTION AND STATE RESPONSIBILITY

Diplomatic protection is a mechanism by which a state may assert a claim on behalf of its national who has suffered injury due to an internationally wrongful act of another state. It is a distinct but related concept to state responsibility. The state's claim is, in legal fiction, its own claim — not the national's — for injury done to itself through the person of its national.

The ILC adopted Articles on Diplomatic Protection in 2006. The preconditions for exercising diplomatic protection are: (1) the nationality of claim — the injured person must be a national of the claiming state at both the time of injury and the time of claim (Nottebohm Case, ICJ 1955); and (2) exhaustion of local remedies — the injured national must have exhausted all available domestic remedies in the respondent state, unless futile.

8.1 Nationality of Claims
The Nottebohm Case (ICJ, 1955) established the 'genuine link' doctrine for nationality — Liechtenstein could not exercise diplomatic protection for Nottebohm because his Liechtenstein nationality was nominal and lacked genuine social, economic, and political ties. This doctrine has been qualified in subsequent practice.
For corporations, the Barcelona Traction Case (ICJ, 1970) established that the state of incorporation (not the state of shareholders' nationality) is entitled to exercise diplomatic protection for injuries to the company. The Diallo Case (ICJ, 2007) applied and refined these principles.

8.2 Diplomatic Protection and India
India exercises diplomatic protection through its Ministry of External Affairs, diplomatic missions, and consular services worldwide. The Kulbhushan Jadhav Case (ICJ, 2019) is India's most prominent recent exercise of diplomatic protection — asserting a claim against Pakistan for violation of consular access rights.
Constitution of India, Articles 5-11 and Citizenship Act, 1955: These provisions define the class of persons India can protect diplomatically — Indian citizens and persons of Indian origin — establishing the nationality basis for diplomatic protection claims.
Kulbhushan Jadhav (India v. Pakistan, ICJ 2019): India successfully argued before the ICJ that Pakistan's failure to notify India of Jadhav's arrest and to provide consular access under Article 36 VCCR constituted an internationally wrongful act — a direct exercise of diplomatic protection with a positive outcome. The ICJ ordered Pakistan to provide 'effective review' of the sentence.
Italy v. India (Enrica Lexie, PCA 2020): Conversely, Italy exercised diplomatic protection over its marines arrested in India — the Tribunal found India had violated international law by asserting criminal jurisdiction over Italian naval personnel exercising official functions.
 

CHAPTER IX: COUNTERMEASURES

Countermeasures are measures taken by an injured state that would otherwise be internationally wrongful, but are permitted because they are taken in response to an internationally wrongful act of another state. They are a form of self-help — a mechanism for enforcing international law in a decentralized system without a compulsory enforcement authority.

ARSIWA Articles 49-54 regulate countermeasures. The conditions for lawful countermeasures are: (1) they must be taken only against the responsible state; (2) they must be proportionate to the injury suffered; (3) they must be aimed at inducing compliance, not punishment; (4) the injured state must have called upon the responsible state to fulfill its obligations; and (5) certain obligations are immune from countermeasures (including jus cogens obligations, humanitarian obligations, and diplomatic/consular inviolability).

Countermeasures must be temporary and reversible — they must cease once the responsible state has complied with its obligations. Economic sanctions, suspension of treaty obligations, and asset freezes are common forms of countermeasures in modern state practice.

9.1 India and Countermeasures
India has employed countermeasures in various international contexts, though Indian foreign policy typically prefers diplomatic resolution. Trade restrictions, diplomatic downgrades, and suspension of bilateral agreements have been used as countermeasures in response to hostile state actions.

Following the Pulwama attack (2019), India revoked Pakistan's Most Favoured Nation (MFN) status under WTO obligations — a countermeasure in response to Pakistan's alleged support for terrorism, though the legal characterization of this as a countermeasure under ARSIWA is contested.

India-Pakistan Trade Relations Post-Pulwama (2019): India's revocation of MFN status and imposition of 200% tariffs on Pakistani goods represented countermeasures in response to Pakistan's alleged internationally wrongful act of supporting cross-border terrorism — an important contemporary instance of India employing countermeasures doctrine.
 

CHAPTER X: CONCLUSION

The laws of jurisdiction and state responsibility represent the structural backbone of the international legal order. They determine who has authority to regulate and adjudicate (jurisdiction) and what happens when that authority is abused or international obligations are breached (state responsibility). These doctrines are not merely theoretical — they have profound practical consequences for how states, including India, engage with each other and with international institutions.

India's engagement with these doctrines is rich and multifaceted. As a major power with global interests and a large diaspora, India must both assert its jurisdictional claims robustly and manage its state responsibility obligations carefully. The Kulbhushan Jadhav victory at the ICJ demonstrates India's ability to leverage state responsibility doctrine effectively. Conversely, the Enrica Lexie award requires India to improve its adherence to international jurisdictional constraints.

The domestic legal framework — particularly the BNS 2023 and BNSS 2023 — has modernized India's criminal jurisdiction provisions while maintaining alignment with international law principles. The Supreme Court's constitutional tort jurisprudence (Nilabati Behera, D.K. Basu, Rudul Shah) has independently developed a robust domestic analog to international state responsibility, including reparation and compensation, that is consistent with and informed by international standards.

Going forward, India's challenge is threefold: to effectively assert its legitimate jurisdictional claims in an era of cyber-crime, transnational terrorism, and economic interdependence; to fulfill its international obligations in a manner that avoids triggering state responsibility claims; and to use the ICJ, PCA, and other international dispute resolution mechanisms proactively to protect Indian interests when other states violate their obligations towards India. The principles explored in this paper provide the legal architecture within which this challenge must be navigated.

SELECT BIBLIOGRAPHY

International Instruments
Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), ILC, 2001
Articles on Diplomatic Protection, ILC, 2006
UN Charter, 1945 (Articles 2(4), 2(7), 51)
Vienna Convention on Consular Relations, 1963
Rome Statute of the International Criminal Court, 1998
Geneva Conventions, 1949 and Additional Protocols

Indian Statutes
Constitution of India, 1950
Bharatiya Nyaya Sanhita (BNS), 2023
Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
Unlawful Activities (Prevention) Act, 1967
Prevention of Money Laundering Act, 2002
Information Technology Act, 2000
Extradition Act, 1962
Geneva Conventions Act, 1960

Key Cases
SS Lotus (France v. Turkey), PCIJ, 1927 | Chorzow Factory (Germany v. Poland), PCIJ, 1928
Nicaragua v. United States, ICJ, 1986 | Kulbhushan Jadhav (India v. Pakistan), ICJ, 2019
Enrica Lexie (Italy v. India), PCA, 2020 | D.K. Basu v. State of West Bengal, 1997 (SC)
Nilabati Behera v. State of Orissa, 1993 (SC) | Rudul Shah v. State of Bihar, 1983 (SC)
State of Maharashtra v. Mayer Hans George, 1965 (SC) | Mobarik Ali Ahmed v. State of Bombay, 1957 (SC)