The Legal Limits of Universal Jurisdiction
52 Pages Posted: 29 Mar 2006 Last revised: 27 Oct 2008
Despite all the attention it receives from both its supporters and critics, universal jurisdiction remains one of the more confused doctrines of international law. Indeed, while commentary has focused largely and unevenly on policy and normative arguments either favoring or undercutting the desirability of its exercise, a straightforward legal analysis breaking down critical aspects of this extraordinary form of jurisdiction remains conspicuously missing. Yet universal jurisdiction's increased practice by states calls out for such a clear descriptive understanding. This Essay engages this under-treated area. It offers to explicate a basic, but overlooked, feature of the law of universal jurisdiction: If national courts prosecute on grounds of universal jurisdiction, they must use the international legal definitions - contained in customary international law - of the universal crimes they adjudicate; otherwise their exercise of universal jurisdiction contradicts the very international law upon which it purports to rely. The Essay argues that this legal feature derives from the distinctively symbiotic nature of universal prescriptive jurisdiction (the power to apply law to certain persons or things) and universal adjudicative jurisdiction (the power to subject certain persons or things to judicial process). Unlike other bases of jurisdiction in international law, the prescriptive substance of universal jurisdiction authorizes and circumscribes universal adjudicative jurisdiction; it defines not only the universal crimes themselves, but also the judicial competence for all courts wishing to exercise universal jurisdiction.
The Essay looks to chart out some important implications of this thesis for the real-world practice of universal jurisdiction; it evaluates how most easily to determine the customary definitions of universal crimes, to detect breaches of international law by courts that manipulate subjectively those definitions, and to enforce against such illicit manipulation. The Essay contends that while some definitional aspects invariably remain to be ironed out by state practice, the provisions of widely-ratified and longstanding international treaties provide generally the best record of the core customary definitions of universal crimes, and accordingly supply not only a harmonized point of departure for courts wishing properly to exercise universal jurisdiction, but also a useful means for detecting breaches of international law by overzealous courts seeking only to exploit universal jurisdiction for purely political or sensationalist ends. The framework presented thus addresses concerns that universal jurisdiction hazards unbridled abuse. As the Essay argues, the law of universal jurisdiction does not; rather, it prescribes legal limits. And the Essay concludes that in the end these limits are enforced not by those states exercising universal jurisdiction, but rather by other jurisdictionally-interested states - that is, most often by those states whose national citizens are the subject of foreign universal jurisdiction proceedings.
Keywords: international law, jurisdiction, criminal procedures, public law and legal theory
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