Universal Jurisdiction: an analysis from a comparative and international law perspective (original) (raw)
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The Illusion of Territorial Jurisdiction
Common accounts of the development of territorial jurisdiction follow a "rise and fall" narrative. Territorial jurisdiction began in the mid-17th century, and declined due to technological revolutions in communications and transportation in the mid-20th century. Since then, the narrative claims, jurisdiction doctrine is in crisis: It is no longer legitimated by territoriality, but it cannot find another foundation that is neutral and mutually exclusive. This narrative, this Article claims, is wrong both historically and conceptually. The "rise" of territorial jurisdiction in fact was always partial, and thus the "fall" never happened. Rather, effects jurisdiction, the supposed nemesis of territoriality, has been alive and well since the mid-19th century. In fact, effects jurisdiction (also called passive territoriality), the doctrine of continuing acts, and "strict" territorial jurisdiction use the same methods and are easy to convert into one another, calling into question the entire territorial–extraterritorial divide. There is a general uncertainty in what counts as "territorial" and what counts as "extraterritorial" jurisdiction, and this is the result of the almost complete lack of geographical information in jurisdictional discourse. This phenomenon is demonstrated by the impossibility of the cartographic-mapping of jurisdiction. The lack of a geographical connection means that most jurisdictional conflicts are better described as conflicts between communities and their legal orders, without a territorial connection. Doctrines of jurisdiction in international law should be reformulated to reflect the illusory nature of the territorial–extraterritorial division.
State's Jurisdiction: Prescription on Territoriality and Nationality
2018
This paper discusses the rules under which state's prescriptive jurisdiction is limited and the grounds for which states legislate on matters with considerations on where the offence occurred, whether in its territory or extraterritorial, and the nationality of persons involved. The author discusses the debatable, recognised and exceptional grounds under the international law, in the exercise of state's jurisdiction.
Netherlands International Law Review, 2012
There are many variables of territoriality available to national courts under contemporary international law. Does the same apply to the International Criminal Court? And, if so, what are the limits to the teleological expansion of the Court's territorial jurisdiction as regards, for example, the partial commission of a crime in State not Party territory, crimes committed over the internet or crimes committed in occupied territories? Michail Vagias' analysis of the law and procedure surrounding the territorial jurisdiction of the Court examines issues such as the application of localization theories of territoriality and the means of interpretation for Article 12(2)(a); the principle of legality (nullum crimen sine lege) and human rights law for the interpretation of jurisdictional provisions; compétence de la compétence; crimes committed over the internet; and the procedure for jurisdictional objections.
British Yearbook of International Law, 2005
In recent years, much discussion has taken place-both in the general public and in academic circles-on the use of universal jurisdiction, i.e. the fact that a State, without seeking to protect its own security or credit, seeks to punish conduct irrespective of the place where it occurs, the nationality of the offender and the nationality of the victim (p. 5). Universal jurisdiction can, thus, be defined as jurisdiction based on the heinous nature of the crime rather than on links of territoriality or nationality (whether as perpetrator or as victim). After centuries of near dormancy-as the author puts it − the establishment of the international criminal tribunals in Rwanda and the Former Republic of Yugoslavia and the Pinochet case paved the way in the late 1990s for extensive discussions − and to some minor extent also application − of the concept of universal jurisdiction. However, there has been little agreement and much confusion on the concept of universal jurisdiction, including on the precise definition, scope and application of the principle. Indeed, there has also been much dispute over the relevance and appropriateness of using universal jurisdiction in the fight against impunity. Some, most notably the human rights groups, have in strong language welcomed the recent development and the use of universal jurisdiction, some have been more reluctant and some have directly opposed the use of universal jurisdiction and claimed that the principle can be a threat against international peace and stability. Many commentators had hoped that the International Court of Justice would have clarified the situation in the Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) and set out guidelines for the scope and application of universal jurisdiction. But unfortunately the Court abstained from considering Congo's initial-but later abandoned-claim that the in absentia proceedings were an excessive exercise of universal jurisdiction. Only a minority of three Judges (Judges Higgins, Kooijmans and Buergenthal) found it necessary to consider the issue of universal jurisdiction and issued a joint separate opinion on this. 1
The Territorial Jurisdiction of the International Criminal Court : Certain Contested Issues
2011
and Agapi Gouziouri, who always kept in touch. The Kyriazis family, Ioannis Kyriazis and Diah Tan, as well as Vasiliki Magoula helped a friend in need of getting out of the phd-way of life. I was lucky to benefit from the wisdom of Paroula Perraki and Costas Antonopoulos. They made sure I stayed the course in times of ambivalence and doubt. The last few years a number of people put things in perspective; my students, my colleagues at The Hague, including William Worster, Ernst van Bemmelen van Gent and Joris Sprakel from the Bynkershoek Institut, who also assisted greatly with the Dutch summary and the editing of this book. On that note, a warm 'thank you' goes also to Sotiria Tsoukala. To my Ph.D. witnesses and friends Axelle Cartier and David Dekker I owe a special debt of gratitude. Last, Thomas Skouteris is largely responsible as a mentor, a friend and a colleague for forming my legal thinking-and professional development.
The Compulsory Jurisdiction of the International Court of Justice on Territorial Disputes
The Jurisdiction of the International Court of Justice (ICJ) is important in the context of maintaining international peace and security. This is also the primary purpose of the United Nations (UN). The ICJ is the principal judicial institution of the UN which has jurisdiction to settle disputes between States that have consented to such jurisdiction. Therefore, this paper aims to shed light on the legally-binding character of the ICJ's jurisdiction. In addition, it examines the role of the State's consent in relation with ICJ's jurisdiction. This research also explains the ICJ's approach to the principle of uti possidetis as one of the nine categories on which the ICJ bases its arguments in its decisions for the recognition of a new independence State. By applying this approach, this paper analyzes the case of Kosovo in the light of the principle of uti possidetis.
The Concept of Jurisdiction in International Law
In this chapter, the concept of jurisdiction as exercised by States (or regional organizations such as the European Union) is concerned. Such jurisdiction is concerned with the reach of a State's law: what link, if any, is required for a State to apply its laws to situations and persons?
Rethinking Jurisdiction in International Law
British Yearbook of International Law, 2014
Jurisdiction has traditionally been considered in international law as purely a question of the rights and powers of states. Conceived in this way, the rules on jurisdiction serve the important function of delimiting (while accepting some overlap of) state regulatory authority-the question of when a person or event may be subject to national regulation-a function which is shared with the cognate discipline of private international law. This article suggests that the idea and the rules of jurisdiction in international law require reconceptualisation in light of three developments. The first is the growing recognition that in a range of circumstances the exercise of national jurisdiction may, under international law, be a question of duty or obligation rather than right. The second development is the increased acceptance that such jurisdictional duties may in some circumstances be owed not only to other states but also to private parties, particularly through the emergence and strengthening of the doctrines of denial of justice and access to justice. The third development is the widely recognised phenomenon known as party autonomy, under which private parties in civil disputes have the power to confer jurisdiction on national courts and to determine themselves which law governs their relationships. In combination, these developments suggest the necessity of rethinking the concept of jurisdiction in international law, to reflect the more complex realities of an international legal order under which states possess both jurisdictional rights and obligations and are no longer the exclusive actors.
In the Middle of Nowhere: The Futile Quest to Distinguish Territoriality from Extraterritoriality
The Extraterritoriality of Law: History, Theory, Politics (Daniel S. Margolies, Umut Özsu, Maïa Pal, Ntina Tzouvala eds.), 2019
https://www.routledge.com/The-Extraterritoriality-of-Law-History-Theory-Politics/Margolies-Ozsu-Pal-Tzouvala/p/book/9780815378587 Separating territorial jurisdiction from extraterritorial jurisdiction, we assume is analytically easy, even straightforward. Certainly very few judicial or academic treatments of the topic spend any time on this issue. In fact, the separation is only easy when the location of persons or physical objects is the decisive factor. Jurisdictional disputes, however, usually concern complex events involving immaterial concepts such as knowledge, responsibility or control. Searching for the “location” of digital data; corporate control; a conspiracy to commit international financial crimes; or an international antitrust violation, all expose the hopelessness of (extra)territoriality. Such complex concepts do not have a single place, or possibly any place at all. As a result, a fact pattern that is “territorial” according one country’s case-law will be “extraterritorial” according to another country. Criminal laws have expansive tests, where any element of a crime that takes place within a state will support territorial jurisdiction by that state. Human rights law, on the other hand, has restrictive tests that classify cases with any substantial foreign elements as extraterritorial. Shooting a person standing on the other side of an international border can thus be both territorial and extraterritorial, even according to the same country’s laws. The arbitrariness of the territorial/extraterritorial division exposes the weakness of the traditional grounds for jurisdiction in international law, and calls for a reformulation of jurisdictional doctrine from the ground up.