Jurisdiction has always been ubiquitous in the international legal system. Lassa Oppenheim describes jurisdiction essentially “as the state’s right to regulate conduct or the consequences of events.” Jurisdiction is multi-faceted, one area that has been the cause of controversy amongst many academics is universal jurisdiction.
Defining universal jurisdiction has been problematic to say the least. Roger O’Keefe in his article alluded to universal jurisdiction as “the assertion of criminal jurisdiction by a state in the absence of any other generally recognised head of prescriptive jurisdiction.”
Originally, the grounds for invoking universal jurisdiction were limited to piracy. More recently, the rationales have been broadened to encompass heinous crimes and violations of prohibitions with jus cogens status. Even if the crime does not affect the forum state, crimes with a hostis humani generis element are accepted as sufficient to invoke universal jurisdiction.
The foundations that universal jurisdiction stood on were indeed ‘shaky’, those foundations have caused its application to become disjointed and leave question marks over the legality of the principle. Throughout the following paragraphs I will look at those foundations and the principle that was built around them, study the main issues, namely the legality of its application and prerequisites to applying universal jurisdiction and the problems pertaining from them. After this I will also look at how academics, politicians, governments and cross governmental organisation are attempting to correct the issues.
The long standing reasoning for such scope of jurisdiction is said to be piracy, a problem which has affected and still affects many today. Piracy was long a proble...
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...ndorsement and encouragement of ‘wide dissemination’’ of the Principles.
The fourteen principles seek to address issues seen above along with addressing issues which may arise in the near future. The project realised that what the law is and what it ought to be were two different things, and they sought to narrow the gap. By studying the principles and the accompanying commentary you can see the divergence which universal jurisdiction can take, and can easily comprehend how the notion has become almost farcical.
Hopefully countries will continue to interact on the issue and further uptake on the principles mentioned above will take place. In doing so the said topic will become aligned throughout the world. Then, the use of it may perfect injustices and address human right infringements, which should be the fundamental reasoning behind this form of jurisdiction.
In 1977, Nils Christie wrote the essay, “Conflicts as Properties”, in which he discusses the four problems that occur within the western legal system. The four problems that affect the legal system in four ways is that the courts are always located in areas that people may not have easy access to locate, the courthouses are challenging to find your way around, the parties are irrelevant to much of the proceedings and the proceedings makes conflicts between the actual parties involved turn into conflicts between the State and the parties 2.
There continues to be a growing debate to this day over the use of international law in the Supreme Court, and even though the case of Roper v. Simmons and Justice Kennedy, are nearly a decade old, they are both frequently
It is first beneficial to know the definition of piracy. Piracy has been characterized multiple ways from multiple disciplines. For the purpose of this paper, I will apply the definition of piracy from the 1982 United ...
According to Article 38 of the 1946 Statute of the International Court of Justice, the Court shall apply “international custom, as evidence of a general practice accepted as law” in its decisions (Kritsiotis 123). In other words, the International Court of Justice cites customs as a formal source of law. According to Roberto Unger, author of Law in a Modern Society, customary international law is best defined as “any recurring mode of interaction among individuals and groups, together with the more or less explicit acknowledgement of these groups and individuals that such patterns of interaction produce reciprocal expectations of conduct that out to be satisfied (Shaw 72-73). In other words, customary international laws are primarily concerned with how and why sates behave in a particular manner. Customs derive from the behavior of states (state practice) and the subconscious belief that a behavior is inherently legal (opinio juris). Evidence of state behavior is documented in the decisions of domestic courts, international courts, and international organizations. Unlike treaty law, customary laws are binding on all states. Additionally, if a treaty derives from a custom it is also binding on all states. Some of the international court cases that have been instrumental in the development of customary international law include the Nicaragua v. United States case, the Anglo-Norwegian Fisheries case, the Scotia case, the Asylum case, the Paquete Habana case, and the Lotus case.
International law is a body of legally binding rules that are suppose to govern the relations between sovereign states. (Cornell Law School) In order to be a qualified subject, a state has to be sovereign. To be considered sovereign the state needs to have territory, a population, and a government that is recognized or legitimized to most other states. In the more modern explanation of international law now can include the rights and obligation on intergovernmental international organizations and even individuals. Examples of an international organization would be Greenpeace or the United Nations and an example of an individual would be war criminals, a leader of a state that violated human rights during a time of war. When a dispute arise and cannot be solved amongst the two actors involved they can turn to the U.N. to arbitrate and to the International Court of Justice, one of many courts within the U.N. to find a resolution to their problem. The International Court of Justice’s main task is to help settle legal disputes submitted to it by states and...
This essay considers that the violation of human rights can indeed be address by extraterritorial jurisdiction throw the human rights legal framework, mainly throw treaties as showed jurisprudence.
In this paper, I will attempt to describe the piracy problem in China, discuss how the Chinese government is dealing with it, present the global effect, and finally arrive at what would be an ethical solution to piracy fitting for China's situation.
Along with the development of a file format (MP3) to store digital audio recordings, came one of the new millennium’s most continuous debates – peer-to-peer piracy – file sharing. Internet companies such as Napster and Grokster became involved in notable legal cases in regards to copyright laws in cyberspace. These two cases are similar in nature, yet decidedly different. In order to understand the differences and similarities, one should have an understanding of each case as well as the court’s ruling.
First of all, we need to know the definition of the subjects of international law. In the perspective of legal theories, to identify the subjects of international law must be based on these following basic signals: The participation in international legal relations that be adjusted by the international law; having the will of independence in international activities; having a full rights and obligations severally toward other objects under the scope to adjust of international law; ability of shoulder the international legal responsibility for the acts executed by object. Generally, objects of international law are the entities that are participating in, or may have the ability to participate in the international legal relations independently. They have the full legal international rights and obligations for the acts executed by object.
...nd the legal positivist approach has come to be the satisfactory for the meanwhile. But as it stands that question still has room for improvement, but maybe more so the question of legal positivism has a need for revision. Plenty of legal positivist have reach their own consensus, formed their own factions, and possibly escaped the two main forms of debates, but I feel legal positivist discussion can be aided simply by time, trial and error. As the world becomes more connected and new nations are formed, additional theorist will approach the debate. In time they will need to craft their own augmentations to the discussion, and develop their own legal systems. Inevitably we will see a continuing stream of knowledge contributing to the comprehensive debate, answering questions with an entirely different perspective, independent on dominating themes present today.
...th 2001). Roth argues that the concept of international jurisdiction is not a new idea but was exercised by the US government in the 1970 after an aircraft hijacking. Also the war crime courts established after the end of World War II exercised international jurisdiction. In fact the Geneva Convention states that is a person regardless of their nationality should be brought before the court of any state in which that person has committed grave breaches of law and convention. Roth states that the concept of international jurisdiction is not a new one but that only in recent years have states been willing to act on universal jurisdiction and go after criminals of the international community regardless of their stating or power within the international community. Roth believes in the ability and authority of international organizations and institutions (Roth 2001).
The lack of automatic international compulsory jurisdiction renders ICJ inferior. Therefore the argument that referring to this court as the ‘World Court’ implies it is superior; an international equivalent of a national supreme court is null and void. Generally a supreme court is the highest ranking court. Its ruling is not subject to further review and therefore the disputing parties ha...
Public International law International law contains of rules and principles, which preside over the relations and communication of nations with each other. International Law that is in most other countries referred to as Public International Law concerns itself only with questions of rights among more than a few nations or nations and the citizens or subjects of other nations. In dissimilarity, Private International Law deals with controversies among confidential persons, natural or juridical, arising out of situations having important association to further than one nation. In current years the line up connecting public and private international law have became more and more doubtful. Issues of private international law may also associate issues of public international law and numerous matters of private international law nave considerable meaning for the international group of people of nations. International Law consists of the basic, classic concepts of law in nationwide legal systems, status, property, responsibility, and tort. It also includes substantive law, procedure, process and remedies. International Law is rooted in receipt by the nation states, which comprise the system. Customary law and conventional law are primary sources of international law. Customary international law results when states trail convinced practices usually and time after time out of an intelligence of legal responsibility. Lately the customary law was codified in the Vienna Convention on the Law of Treaties. Conventional international law derives from international agreements and may obtain any appearance that the constricting parties have the same opinion upon. Agreements may be complete in admiration to any substance except for to the leve...
Von Galhn and Taulbee. 2013. Law Among Nations. An Introduction to Public International Law. Pearson Education.
The traditional approach to jurisdiction invites a court to ask whether it has the territorial, pecuniary, or subject matter jurisdiction to entertain the ca...