This passage has been much criticized.9 Its emphasis on plenary state discretion is contradicted by the approach of the Court in Anglo-Norwegian Fisheries10 and Nottebohm,11 which concerned comparable competences of states, respectively, to delimit the territorial sea and to confer nationality on individuals: we may call them regulatory competences. Following Arrest Warrant,12 there are hints that it has been reversed: if a state wishes to project its prescriptive jurisdiction extra-territorially, it must find a recognized basis in international law for doing so. This shift in focus is, however, largely cosmetic, and in general the Permanent Court’s statement that ‘all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty’ remains correct.13

(i)  The territorial principle

The principle that the courts of the place where the crime is committed may exercise jurisdiction is universally recognized. It is an application of the essential territoriality of sovereignty, the sum of legal competences which a state has. In the case of crime, the principle has a number of practical advantages, including the convenience of the forum and the presumed involvement of the interests of the state where the crime was committed. The territorial principle has been given an extensive application. In the first place, there is subjective territoriality, which creates jurisdiction over crimes commenced within the state even if completed or consummated abroad.14 Generally accepted and often applied is the objective territorial principle, according to which jurisdiction is founded when any essential constituent element of a crime is consummated on the forum state’s territory. The classic illustration is the firing of a gun across a border causing death on the territory of the forum, but the principle can be employedReferences(p. 459) to found jurisdiction in cases of conspiracy,15 violation of antitrust16 and immigration laws17 by activity abroad, and in many other fields of policy.18 The effect of the two principles combined is that whenever the constituent elements of a crime occur across an interstate boundary both states have jurisdiction.

The objective principle received general support in the Lotus; what was controversial was its application to collisions in international waters. France contended that the flag state alone had jurisdiction over acts performed on board on the high seas. Turkey argued, inter alia, that vessels on the high seas were to be considered part of the territory of the flag state. By the casting vote of the President, the Court decided that Turkey had not acted in conflict with the principles of international law by exercising criminal jurisdiction. The basis of the majority view (with which Judge Moore concurred) was the principle of objective territorial jurisdiction. The principle was familiar but to apply it the Court had to assimilate the Turkish vessel to Turkish national territory.19 This crucial step did not attract a majority, and is out of line with subsequent developments.

(ii)  The nationality principle

Nationality, as a mark of allegiance and an aspect of sovereignty, is also generally recognized as a basis for jurisdiction over extra-territorial acts.20 The application of the principle may be extended by reliance on residence21 and other connections asReferences(p. 460) evidence of allegiance owed by aliens,22 and also by ignoring changes of nationality.23 For example the UK legislature has conferred jurisdiction on its courts in respect of, inter alia, treason,24 murder,25 bigamy,26soccer hooliganism,27 child sexual abuse,28 and breaches of the Official Secrets Acts29 wherever committed by British nationals or residents.

The territorial and nationality principles (as well as the increasing incidence of dual nationality) create parallel jurisdictions and possible double jeopardy, and many states place limitations on the nationality principle,30 for example, by confining it to serious offences.31 But such limitations are not required by international law.32Nationality provides the primary criterion for criminal acts in locations such as Antarctica, where the ‘territorial’ criterion is not generally recognized.33

For nationality jurisdiction, it is often asserted that the person over whom the state purports to exercise its prescriptive jurisdiction must have been a national at the time of the offence. Otherwise, it is argued, a violation of the principle of nullum crimen sinelege could occur.34 However, state practice is varied, with some states providing for nationality jurisdiction over persons who subsequently acquire their nationality.35

References(p. 461) (iii)  The passive personality principle36

If the nationality head of jurisdiction may be characterized as one of ‘active personality’, the reverse of the coin is ‘passive personality’. According to this principle aliens may be punished for acts abroad harmful to nationals of the forum. This is considerably more controversial, as a general principle, than the territorial and nationality principles. In Cutting a Mexican court exercised jurisdiction in respect of the publication by a US citizen in a Texas newspaper of matter defamatory of a Mexican citizen. The court applied the passive nationality principle among others. This led to diplomatic protests from the US, although the outcome was inconclusive.37

In the Lotus, the Turkish penal code provided for punishment of acts abroad by foreigners against Turkish nationals; in effect it was a comprehensive exercise of passive personality jurisdiction. The Court declined to assess the law as such. The question was whether the specific factual situation fell within Turkish jurisdiction or not;38 it held that it did, invoking the protective principle.39 Judge Moore, in a separate opinion, agreed with the majority as to the outcome but expressly rejected the protective principle.40

The passive personality principle has been much criticized. One early complaint was that it served no wider goal of criminal justice: it did not correspond to a domestic conceptualization of jurisdiction, would not close an enforcement gap and lacked any social aim of repression.41 There is also concern that it could expose individuals to a large number of jurisdictions.42 Such objections have not, however, prevented the development of something approaching a consensus on the use of passive personality in certain cases, oft en linked to international terrorism.43 Moreover, aut dedere aut iudicare provisions in most criminal law treaties authorize the use of passive personality jurisdiction as between states parties.44

References(p. 462) (iv)  The protective or security principle45

Nearly all states assume jurisdiction over aliens for acts done abroad which affect the internal or external security or other key interests of the state, a concept which takes in a variety of offences not necessarily confined to political acts.46 Currency, immigration, and economic offences are frequently punished. The UK and the US allow significant exceptions to the doctrine of territoriality, though without express reliance upon the protective principle. Thus, courts of the former have punished aliens for acts on the high seas concerning illegal immigration,47 and perhaps considerations of security helped the House of Lords in Joyce v Director of Public Prosecutions48 to the view that an alien who left the country in possession of a British passport owed allegiance and was accordingly guilty of treason when he subsequently broadcast propaganda for Germany in wartime. Insofar as the protective principle rests on the protection of concrete interests, it is sensible enough, but the interpretation of the concept of ‘protection’ may vary widely. For example, the protective principle was invoked in the Eichmann case in relation to the Jewish victims of the accused,49 despite the fact that Israel was not a state when the offences in question occurred.50

The categories of what may be considered a vital interest for the purposes of protective jurisdiction are not closed,51 and no criteria exist for determining such interests beyond a vague sense of gravity. Ultimately, the identification of exorbitant jurisdiction may be a matter of knowing it when one sees it.52

(v)  The effects doctrine

In addition, it has been suggested that there exists a further head of prescriptive jurisdiction, the so-called ‘effects doctrine’.53 This may gain traction where anReferences(p. 463) extra-territorial offence causes some harmful effect in the prescribing state, without actually meeting the criteria of territorial jurisdiction or representing an interest sufficiently vital to the internal or external security of the state in question to justify invoking the protective principle.

While controversial, the doctrine is not objectionable in all cases.54 It was at least acknowledged by the majority in the Lotus55 and by certain members of the International Court in Arrest Warrant.56 Today, ‘effects’ or ‘impact’ jurisdiction is practised largely by the US and, with greater qualifications, by the EU.57 In Alcoa, for example, Judge Learned Hand stated that it was ‘settled law’ that ‘any state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders which has consequences within its borders which the state reprehends’,58 a position since followed extensively in US antitrust jurisprudence.59

Since Alcoa, the effects doctrine and its expansion have, in many cases, been driven by the US approach to jurisdiction. Whereas previously this resembled closely the conception of various heads of prescriptive jurisdiction, it has now changed its perspective; it is possible to speak of antitrust jurisdiction, tort jurisdiction, and taxation jurisdiction, with some of these having a broader extra-territorial reach than others. This has the potential to muddy the waters, resulting in the uncertain position of the effects doctrine within international law as either a head of prescription in its own right, or a subject-driven application of the territorial or protective principles with unusual reach.60 These policies have provoked a strong reaction from a number of foreign governments. The UK61 and other states have enacted legislation to provide defensive measures against American policy. Similar episodes have arisen as a result of the application of the US Export Administration Act in particular, in the face of US measures directed against non-American corporations involved in contracts relating to the construction of the West Siberian pipeline.62 Both the European Community63 and the UK64protested and asserted the illegality of the actions of US authoritiesReferences(p. 464) intended to prevent the re-export of machinery of American origin and the supply of products derived from American data. But it must be noted that competition legislation in several European states is based on principles similar to those adopted in the US.65 Moreover, the European Court of Justice has applied a principle similar to the American ‘effects doctrine’ in respect of company subsidiaries66 and the Advocate-General espoused this view in his Opinion in the Woodpulp Cases.67 In any event US legislation has continued to provoke protests from the EU and from individual states.68 This legislation includes the Cuban Democracy Act (1992),69 the D’Amato-Kennedy Act (1996),70 and the Helms-Burton Act (1996).71

(i)  Defining universal jurisdiction

A considerable number of states have adopted, usually with limitations, a principle allowing jurisdiction over acts of non-nationals where the circumstances, including the nature of the crime, justify repression as a matter of international public policy. In this sense, universal jurisdiction is defined by the character of the crime concerned, rather than by the presence of some kind of nexus to the prescribing state. The prosecution of crimes under customary international law is often expressed as an acceptance of the principle of universality,90but this is not strictly correct, since what is punished is the breach of international law. The case is thus different from the punishment, under national law, of acts which international law permits and even requires all states to punish, but does not itself declare criminal.

(ii)  The content of universal jurisdiction

The original crime to which universal jurisdiction attached was that of piracy iure gentium,93 which was in turn followed by slavery.94 In modern times, it has been extended to the so-called ‘core crimes’ of customary international law,95 being genocide,96 crimes against humanity and breaches of the laws of war, and especially of the Hague Convention of 1907 and grave breaches of the Geneva Conventions of 1949.97 Torture within the meaning of the Torture Convention 1984 is also likely to be subject to universal jurisdiction.98

Beyond such clear cases, public policy is less useful as a criterion. There are no examples of prosecutions for the crime of aggression under universal jurisdiction, but given the relatively recent formulation of an agreed definition of the crime in international law99 this is not surprising.100 At the same time, however, the intense political implications of the charge of aggression may also explain the unwillingness of states to attempt prosecutions on the basis of universal jurisdiction. For now, therefore, it is questionable as to whether aggression can be considered a crime of universal jurisdiction. The better view may be that it is not.

Thus, notwithstanding the fact that the ‘moral’ justification for universal jurisdiction has dominated discussion of this subject,101 it does not explain the reality of universal jurisdiction, which is oft en influenced—sometimes decisively—by political considerations. It seems that attempting to derive a coherent theory for the extension of universal jurisdiction with respect to some crimes but not others may be toReferences(p. 469) overstate the situation: rather, it may simply be that such jurisdiction is extended on a case-by-case basis in customary international law, with the notion of an attack upon the international order being a necessary but not sufficient condition.

(iii)  Universal jurisdiction in absentia?

The most substantial consideration of universal jurisdiction by an international court or tribunal occurred in Arrest Warrant, even though the discussion was obiter (the Court felt it could address immunity without deciding upon jurisdiction).102 The opinions of those judges who did consider universal jurisdiction reveal a deeply divided court. Four judges (President Guillaume, Judges Ranjeva, Rezek, and Judge ad hoc Bula-Bula) were opposed to the use of the jurisdiction, whereas six (Judge Koroma, Judges Higgins, Kooijmans, Buergenthal in their joint separate opinion, Judge al-Khasawneh (impliedly), and Judge ad hoc van den Wyngaert) supported its application by Belgium.103

On examination, however, of those judges who opposed the use of universal jurisdiction by Belgium, only President Guillaume104 and Judge Rezek105 disagreed with a concept of universal jurisdiction in general. Judge Ranjeva and Judge ad hoc Bula-Bula criticized only its use in absentia, that is, where the prescribing state did not have custody of the accused.106

Although the notion of universal jurisdiction in absentia is not unknown in academic literature prior to the Arrest Warrant case,107 it is not compelling. Universal jurisdiction is a manifestation of a state’s jurisdiction to prescribe. The question whether jurisdiction is exercised in personam or in absentia is a manifestation of a state’s jurisdiction to enforce.108 In the context of Arrest Warrant, the Belgian law on war crimes and the issue of an arrest warrant in support of that law were separate acts. To speak of universal jurisdiction in absentia is to conflate prescriptive and enforcement jurisdiction.109

(iv)  Treaty-based quasi-universal jurisdiction110

Another, more restricted, form of quasi-universal jurisdiction arises from sui generis treaty regimes incorporating penal characteristics. These regimes have for the mostReferences(p. 470) part been developed in order to respond to particular behaviours viewed as undesirable; they require states parties to exercise mandatory prescriptive jurisdiction over certain individuals within their territories, independent of any ordinary nexus. They are frequently characterized by the obligation of aut dedere aut iudicare, which will compel a state party to either try the accused or extradite to a state that is willing to do so.111

This formula has been applied, more or less identically, in a considerable number of international conventions.114 Early examples include the aut dedere aut iudicare obligations also appeared in the Geneva Conventions in 1949.115 Chief amongst the more recent treaties are the 12 ‘sectoral’ anti-terrorism agreements which were developedReferences(p. 471) when it became clear that meaningful agreement on a generic definition of ‘terrorism’ was unreachable.116

To describe the jurisdictional regime established by these treaties as ‘universal’ is a misnomer.117 As Ryngaert notes:

The operation of the aut dedere requirement is indeed limited to States Parties, which pool their sovereignty and explicitly authorize each other to exercise jurisdiction over crimes committed by their nationals or on their territory.118

That, however, has not prevented certain states from insisting on the application of sui generis bases of jurisdiction to nationals of non-states parties to the treaties in question. The US is notable in this regard, often exercising jurisdiction over suspected terrorists who are nationals of states not party to the relevant sectoral agreements.119 In Yunis, for example, a Lebanese national was prosecuted with respect to the hijacking of Royal Jordanian Airlines Flight 402 from Beirut to Amman. The plane carried several American nationals, but was registered in Jordan, flew the Jordanian flag and never landed on American soil or flew over American airspace. The Court found that it had universal jurisdiction to prosecute with respect to the act of hijacking and the taking of hostages by the accused. Although jurisdiction was grounded on the fact that Lebanon was a state party to the Hague and Montreal Conventions, the Court further held that jurisdiction was also furnished by the provisions of the Hostage Taking Convention. This was despite the fact that Lebanon and Jordan were not parties to that treaty.120