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Universal Jurisdiction :Obstacles and Solutions

Author: QiRenGuang
Tutor: ZhangXu
School: Jilin University
Course: Criminal Law
Keywords: Principle of universal jurisdiction Obstacle Overcome
CLC: D997.9
Type: Master's thesis
Year: 2005
Downloads: 228
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Abstract

Universal jurisdiction breaks through the restrictions of territoriality,nationality or protective principal. It offers unified basis and guarantee for thecountries all over the world in punishing international crimes. A dragnet,which punishes criminals of international crimes, can take shape on the rangeof the world. Over half a century and more, with universal jurisdiction beingincreasingly exercised, it becomes the most controversy principle, and thereare many obstacles in its exercise too. So, it is necessary to probe into thoseobstacles, so as to seek possible approaches to solutions.Chapter one mainly introduces the concept and connotation of universaljurisdiction, evolution of universal jurisdiction and the main legislative modeof universal jurisdiction in international conventions. I think, universaljurisdiction refers to the authority of any domestic court or internationaltribunal to prosecute certain international crimes under international commonlaw and international conventions, regardless of the territoriality where theoffense occurs, the nationality of the perpetrator, or the nationality of thevictim. The connotation of universal jurisdiction involves: First of all,universal jurisdiction must be exercised under international law. Secondly,the objects of universal jurisdiction mainly are serious international crimes.Moreover, the exercise of universal jurisdiction does not require any factor ofbinding between the countries exercising universal jurisdiction andinternational crimes. The evolution of universal jurisdiction includes thedevelopment of theory and the evolution of exercise. There are four kinds ofmain legislative modes of universal jurisdiction in international conventions.The first is that any country has the right to exercise. The second is theprinciple of “or prosecute or extradite”. The third is the state where aircraftsland has the right to exercise. The last is the state where the main business orpermanent dwelling place of lessee lie has the right to exercise. Among them,the principle of “or prosecute or extradite”is the most common way.Chapter two analyzes the obstacles in the exercise of universaljurisdiction, including the influences of sovereignty, the challenges of humanrights, the impacts of jurisdictional conflict and the restrictions of defects inuniversal jurisdiction. The factors of sovereign harass and restrict the exerciseof universal jurisdiction not only at national level but also at internationallevel, which put universal jurisdiction on the shelf. The challenges of humanrights include the challenge of incongruity between crime and punishment,the challenge of the principle of “non bis in idem”and the challenge of duerights in the lawsuit subject to universal jurisdiction. The impacts ofjurisdictional conflicts consist of the vertical jurisdictional conflict withinternational tribunals in punishing international crimes and the leveljurisdictional conflicts with domestic courts in punishing international crimes.The impacts of jurisdictional conflicts harass the smooth exercise of universaljurisdiction. The restrictions of defects in universal jurisdiction include twosides. Firstly, universal jurisdiction cannot exert guidance functions to itsexercise for its theory is not explicit. Secondly, the absence of obligationprovisions makes it difficult to guarantee states to perform their duties ofexercising criminal jurisdiction to international crimes.Chapter three discusses how to solute the obstacles in the exercise ofuniversal jurisdiction, including the harmony between sovereign anduniversal jurisdiction, the answers to the challenges of human rights, thealleviation of the impact of jurisdictional conflict and the perfection ofuniversal jurisdiction. The harmony between sovereign and universaljurisdiction includes two aspects. On one hand, we should erect the notion oflimited sovereign and regulate it in law. On the other hand, we shouldstrengthen its international legitimacy. The objects and conditions ofuniversal jurisdiction and the processes in the exercise of universaljurisdiction should be regulated under international law. The answers to thechallenges of human rights include: First of all, the state party should consentto guarantee incongruity between crime and punishment in relevantinternational conventions. It can also be overcome by the way of thedemonstrative legislation in addition. Secondly, the answers to the principleof “non bis in idem”are that states should definitely prescribe it in theirdomestic law and regard it as basic criminal principle. Thirdly, the answer tothe challenge of due right is that states should punish the criminals accordingto due process under international law in the exercise of universal jurisdiction.

Universal Jurisdiction :Obstacles and Solutions

Abstract

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