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The construction of third-party jurisdictional piracy courts to address the problem of Somali piracy injected a sudden and unprecedented doctrine into---while simultaneously dismissing a canon of---international law. These courts dismissed the nexus requirement---or connection---between the seizing State and the legal apparatus used to prosecute those accused of piracy jure gentium, the original cognizable crime of universal jurisdiction. While the legal community does not appear to recognize this particular nexus requirement, its existence during over four hundred years of juridical practice and over two thousand years of social and juristic theory stands as a testament to its salience under international law. Given its history as a cornerstone of international law, the ability of powerful western States, and international organs working on behalf of those powerful western States, to delegate the prescriptive and adjudicative functions of the juridical apparatus to less-developed nations, while retaining the power of enforcement, is both remarkable and disturbing. This dissertation therefore poses two questions: First, what explains the emergence of third-party jurisdictional piracy courts in Kenya, Seychelles and Mauritius to address Somali piracy? Second, why did powerful States limit the jurisdiction of these courts to only cases of Somali piracy, when maritime piracy has been equally disruptive, and perhaps more costly, in other parts of the world? The central contention of this dissertation is that third-party jurisdictional piracy courts are a product of an international State system based on asymmetrical power relations that reflect the ability of hegemonic States to preserve their interests by selectively targeting subaltern actors. In this vein, this dissertation notes that alternatives to third-party jurisdictional piracy courts currently exist under both the law of nations and municipal law. However, extant juridical routes have the potential to expose and damage the dominance of hegemonic actors by, for example, opening them up to violations of international human-rights laws. In this light, the emergence of third-party jurisdictional piracy courts can be understood as both an affront to modern conceptions of sovereignty and the law of nations, and the normative juridical outcome of the interactions between hegemonic States and subaltern social actors.
This study is based on the following questions: Which jurisdiction can and should be exercised for the prosecution of individuals responsible for gross and serious violations of human rights? And especially, in this regard, what is the role of universal jurisdiction? In explaining the modern jurisdictional regime, this study illuminates the historical phenomenon of the expansion of jurisdiction in Chapter II, and conducts in-depth research particularly into universal jurisdiction in Chapter III and IV. This study explicates the notion of universal jurisdiction in history and in theory, categorizing its nature by two aspects (permissive or obligatory, and supplemental or primary), and underscores the differences between ordinary universal jurisdiction and universal jurisdiction in absentia. Having made an analysis on the legality of jurisdiction, this study has proceeded to examine the appropriateness of exercising jurisdiction. Noting the danger of conflicts of jurisdiction, Chapter V attempts to compile some guiding rules that can be utilised in determining the appropriateness of jurisdiction, thus answering the question of Which jurisdiction should be exercised'. Chapter VI then applies these guiding rules to non-territorial jurisdiction, namely universal jurisdiction. The observations deduced from the application of the guiding rules demonstrates, together with the analysis of the legality of universal jurisdiction in Chapter IV, the role of universal jurisdiction within the modern jurisdictional regime.
Universal jurisdiction is becoming a potent instrument of international law, but it is poorly understood by legal experts and remains a mystery to most public officials and citizens.
Galand critically spells out a comprehensive conception of the nature and effects of Security Council referrals that responds to the various limits to the International Criminal Court's exercise of jurisdiction over situations that concern nationals and territories of non-party States.
The Oxford ILDC online database, an online collection of domestic court decisions which apply international law, has been providing scholars with insights for many years. This ILDC Casebook is the perfect companion, introducing key court decisions with brief introductory and connecting texts. An ideal text for practitioners, judged, government officials, as well as for students on international law courses, the ILDC Casebook explains the theories and doctrines underlying the use by domestic courts of international law, and illustrates the key importance of domestic courts in the development of international law.
This book concerns the relationship between the principles of complementarity and universal jurisdiction. Territorial States are normally affected most strongly by core international crimes committed during a conflict or an attack directed against its civilian population. Most victims reside in such States. Most damaged or plundered property is there. Public order and security are violated most severely in the territorial States. It is also on their territory that most of the evidence of the alleged crimes can be found. There are, in other words, obvious policy and practical reasons why States should accord priority to territoriality as a basis of jurisdiction. But is there also an obligation for States to defer exercise of universal jurisdiction of core international crimes to investigation and prosecution of the same crimes by the territorial State? What - if any - is the impact of the principle of complementarity in this respect? These are among the questions discussed in this anthology.
This 2005 book discusses the legitimacy of the international criminal law regime. It explains the development of the system of international criminal law enforcement in historical context, from antiquity through the Nuremberg and Tokyo Trials, to modern-day prosecutions of atrocities in the former Yugoslavia, Rwanda and Sierra Leone. The modern regime of prosecution of international crimes is evaluated with regard to international relations theory. The book then subjects that regime to critique on the basis of legitimacy and the rule of law, in particular selective enforcement, not only in relation to who is prosecuted, but also the definitions of crimes and principles of liability used when people are prosecuted. It concludes that although selective enforcement is not as powerful as a critique of international criminal law as it was previously, the creation of the International Criminal Court may also have narrowed the substantive rules of international criminal law.
This fully updated second edition of Jurisdiction in International Law examines the international law of jurisdiction, focusing on the areas of law where jurisdiction is most contentious: criminal, antitrust, securities, discovery, and international humanitarian and human rights law. Since F.A. Mann's work in the 1980s, no analytical overview has been attempted of this crucial topic in international law: prescribing the admissible geographical reach of a State's laws. This new edition includes new material on personal jurisdiction in the U.S., extraterritorial applications of human rights treaties, discussions on cyberspace, the Morrison case. Jurisdiction in International Law has been updated covering developments in sanction and tax laws, and includes further exploration on transnational tort litigation and universal civil jurisdiction. The need for such an overview has grown more pressing in recent years as the traditional framework of the law of jurisdiction, grounded in the principles of sovereignty and territoriality, has been undermined by piecemeal developments. Antitrust jurisdiction is heading in new directions, influenced by law and economics approaches; new EC rules are reshaping jurisdiction in securities law; the U.S. is arguably overreaching in the field of corporate governance law; and the universality principle has gained ground in European criminal law and U.S. tort law. Such developments have given rise to conflicts over competency that struggle to be resolved within traditional jurisdiction theory. This study proposes an innovative approach that departs from the classical solutions and advocates a general principle of international subsidiary jurisdiction. Under the new proposed rule, States would be entitled, and at times even obliged, to exercise subsidiary jurisdiction over internationally relevant situations in the interest of the international community if the State having primary jurisdiction fails to assume its responsibility.