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This is not a new development -- international law had long recognised universal jurisdiction for piracy and slavery, for example -- but it marks an extension of the principle, in a modified form, into a new subject area' (emphasis added).
In fact, Goodwin (2006) points out that, 'For hundreds of years, the world has allowed any nation-state to exercise universal jurisdiction over high seas piracy. This has been recently codified by the United Nations in the Convention on the Law of the Seas (UNCLOS). It has been almost universally assumed that allowing states to do this was legitimate.' In the post-September 11, 2001 climate, this initiative in particular has been singled out by some contemporary analysts as being a step in the right direction in helping to prosecute the international war on terrorism. For example, Shulman (2006) reports that, "The characterization of certain actors as pirates and certain terrorist acts as piracy presents a couple of intriguing possibilities for punishing or preventing future acts of terrorism. If a vessel has no state protection, international law offers no protection other than the dictates of universal human rights.' Paradoxically, though, despite its aggressive military approach elsewhere in its war on terrorism, the United States is not a party to the UNCLOS; moreover, it has consistently urged other countries to refrain from signing off on the measure because the political leadership felt the initiative did not sufficiently protect U.S. interests.
In some other situations, a special type of jurisdiction known as 'flag-state' jurisdiction (i.e., a quasi-territorial form of jurisdiction) has been recognized. In this regard, the flag-state principle of jurisdiction maintains that a ship represents an extension of the territory of its flag state; in other words, 'the ship is to be treated as a floating island belonging to the flag state.' Notwithstanding the fact that this 'special' type of jurisdiction has no basis in the law, this author suggests that it can prove helpful in some situations where a state perceives its interests to be paramount and the threat represented by the potential criminals sufficient to warrant its exercise. As Goodwin emphasizes, 'This is a legal fiction, but it has good uses. Problems can arise though as to who has jurisdiction over the ship when it is in the territorial waters of a state other than its flag state. (82) Almost all governments recognize this as a legitimate form of jurisdiction as evidenced by its inclusion in the United Nations Convention on the Law of the Sea (UNCLOS).'
Based on customary international law, states are allowed to establish jurisdiction based on factors other than those involving territoriality. For example, according to Goodwin, 'The "nationality" principle allows a state to exercise jurisdiction over its citizens for their conduct abroad. One of the reasons for this is that nationality is an essential link to statehood. Another is that if a person willingly chooses to remain a national of a state while traveling abroad and reaps the benefits of that citizenship, he should also remain subject to the jurisdiction of the state of which he is a citizen.' This type of jurisdiction, though, has been most commonly found in the practice of "private law" with regard to wills, divorces and so forth; however, jurisdiction that is founded on principles of nationality represents a traditional exception to the exclusivity of territorial jurisdiction. This is not surprising since 'tension is possible if the state with territorial jurisdiction and the state with nationality jurisdiction are not the same and both are seeking to assert jurisdiction over an individual; however, there has been little tension in practice.'
Although the principle of nationality provides people's state of citizenship with the fundamental right to exercise jurisdiction over them, Goodwin suggests that the passive personality principle likewise assigns a state the requisite authority to exercise jurisdiction in the event of its citizens is the victim of crime in a foreign state. According to this author, 'In general, scholars and governments have not viewed this form of jurisdiction as favorably as they have the nationality form of jurisdiction despite the link of citizenship. France used this principle when it sought to punish Pinochet for the forced disappearance of French nationals living in Chile.'
Yet another type of jurisdiction that can be extended universally is the so-called 'effects' principle. In this regard, Goodwin advises, 'A state can exercise jurisdiction over a foreign national who takes action in a foreign state if that action affects the state seeking to assert jurisdiction. This is most commonly seen and least controversial in the criminal practice where a shot from one country is aimed at and lands in another country, which will then seek jurisdiction over the shooter.' Therefore, while the criminal action occurred in a foreign state by foreign nationals, the state that experienced the harmful effects of the act is allowed to exercise jurisdiction based on the effects principle. In addition, there is an extension of the effects principle into a specialized category known as the 'protective principle' which allows a state to exercise jurisdiction over foreign nationals who commit acts in a foreign territory (or outside the territory of any state) when those acts will affect a state's interests. According to Goodwin, "This has been the most controversial of the traditional bases of jurisdiction.'
The foregoing types of jurisdiction all share some mutual concepts of a state desiring to establish jurisdiction between itself the criminal actor. The other recognized basis of establishing jurisdiction is the so-called 'universality" principle,' or simply 'universal jurisdiction.' In this regard, Goodwin reports that, 'Universal jurisdiction allows for the exercise of jurisdiction over certain actors or activities wherever they occur without regard to nationality or territoriality. Traditionally, the concept of universal jurisdiction has been limited to piracy.' In fact, any state has the fundamental right to seize any pirate ship and subject those on board to its legal regime when such actions take place on the high seas or even any place outside of the territory of any state; therefore, if a citizen of the United Kingdom aboard a ship bearing a flag of the United Kingdom piratically attacks another ship bearing the UK flag and carrying citizens and goods of the UK in the middle of the Pacific Ocean, any state is allowed to capture the pirate ship and subject the pirate to the capturing state's laws. It can do this despite the fact that only the United Kingdom has any relation to the actors, activities, and items involved which is an example of universal jurisdiction when it applied to piracy.
Unfortunately, piracy remains on the increase in some regions of the world such as off of the coast of Somalia, and existing measures appear to be insufficient to address this growing problem without some additional means of prosecuting and incarcerating the criminals involved. To this end, some observers have recommended the creation of an international criminal court, a legacy in large part of the trials at Nuremburg. In this regard, Teitel (2000) reports that, 'In the fifty years since Nuremberg, while there is often talk about the desirability of such a tribunal, heightened during wartime, it has rarely culminated in trials, although, as we come to the century's end, momentum has been building for the establishment of a permanent international criminal court.' Two of the major constraints to the establishment of an international criminal court are the principles of state sovereignty and criminal jurisdiction. In this regard, Aksar (2004) reports that, "This is because the concept of sovereignty and criminal jurisdiction are interrelated, and States do not want to surrender their exclusive jurisdiction in criminal matters to any other State or international institutions (international tribunal or court) being regarded as a major, inevitable element of State sovereignty.' Nevertheless, the increasing internationalisation of events in recent years has created a new environment in which the sovereignty of States can profoundly affect the rights of other states. For instance, in her essay, 'Tort Au Canadien: A Proposal for Canadian Tort Legislation on Gross Violations of International Human Rights and Humanitarian Law,' Davidson (2005) recommends establishing some universal criminal jurisdiction in the form of provincial tort legislation as 'one of a panoply of mechanisms in place to punish and deter violations of international humanitarian and human rights law.'
In his text, Akehurst's Modern Introduction to International Law, Malanczuk (1997) suggests that one viable approach to providing an avenue by which the international community can establish universal criminal jurisdiction when the situation calls for it is the creation of a permanent international criminal court. According to this author, a permanent international criminal court 'would overcome the problems arising from the time and efforts required to create ad hoc tribunals on a case-by-case basis, as for Yugoslavia and Rwanda. It would also dispense with the inevitable selective application of justice under the ad hoc method by only addressing certain conflicts and not others.'
Moreover, the creation of a permanent international criminal court on a treaty basis would clearly and…[continue]
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