18. Universal Jurisdiction: Concept, Logic, and Reality

Abstract

The debates in the UNGA since 2009 on universal jurisdiction reveal great confusion on its concept, scope and application. True or pure universal jurisdiction is jurisdiction solely based on the universal concern character of the crime in issue. The concept and logic of universal jurisdiction is understandable, as each State has an interest in matters of universal concern. Universal jurisdiction can be a powerful instrument for the international system to protect its interests and to protect human rights and fight against impunity. However, the exercise of universal jurisdiction by one State may infringe the sovereignty and sovereign equality of another State and can be abused, thus destabilizing international relations. These pros and cons and other factors have influenced the international law formation process in such a way that so far only universal jurisdiction over piracy has been accepted in international law. There is no “pure universal concern jurisdiction” over other crimes yet. The evidence of State practice on “universal concern plus presence” jurisdiction is not yet substantial so as to afford the finding of a customary international law rule in its favor. Treaty practice providing for “universal concern plus treaty, presence and intra-regime territoriality or nationality jurisdiction” or “universal concern plus treaty and presence jurisdiction” is limited to the particular treaty regime only. In the light of this state of affairs, the possible application of the Lotus dictum and the presence requirement - especially the weak, procedural view of it - can be of significance and deserves attention. The movement for “pure universal jurisdiction” has been “trending down” since the conspicuous silence on the legitimacy of universal jurisdiction in the Arrest Warrant case decided by the ICJ in 2002. The subsequent downtrend may have been in no small measure due to the cautious Judgment in that case. That Judgment can be said to have, in an ingenious way, helped to inject some calming elements back into international relations. With Belgium and Spain now having abandoned pure universal jurisdiction by narrowing down their statutes, the universal jurisdiction movement appears to be a moving train without its locomotive.