A Study On Fundamental Issues Of Universal Jurisdiction

Universal Jurisdiction is one kind of criminal jurisdiction which does not require connections between crime and forum country.But international society has not set up a complete,mature system of universal jurisdiction yet,which leads to much controversy and disputes about universal jurisdiction around related practices endangering international relations and order.The most important and controversial problems in the author's opinion about universal jurisdiction include concept of universal jurisdiction,theoretical basis of universal jurisdiction,international legal basis of universal jurisdiction,relationship between universal jurisdiction and immunity and application of universal jurisdiction with defendant absence.Through discussing these issues,we can solve practice disputes to maintain stability of international society and enhance universal jurisdiction research.Chapter One discusses various concepts of universal jurisdiction and compares key differences among them.On this basis,through analysis combining rationale and logic,a more precise,reasonable concept can be concluded:universal jurisdiction is the ability of a state to investigate or prosecute crimes committed outside the state's territory which is not linked to that state by the nationality of the suspect by the time of acting or of the victim or by harm to the state's own national interests.Chapter Two focuses on the theoretical basis of universal jurisdiction.There are different theories about universal jurisdiction.Some can be refuted and some can be affirmed.Through this process with combining several theories,we would realized that criminal justice and international common concern could both be theoretical basis of universal jurisdiction.Chapter Three discusses the international legal basis for universal jurisdiction.Starting from fundamental rights and interests of states and based on international stance of rule of law,this chapter negates the viewpoint that universal jurisdiction is applicable without the authorization of international law,and affirms the necessity of establishing international legal basis for universal jurisdiction.Besides,this dissertation also examines the three sources of international law,namely,international agreement law,customary international law and peremptory norms by analyzing their possibility of authorizing universal jurisdiction,and gets the following conclusions.That is,current international conventions involving various international crimes include clauses for universal jurisdiction,mainly displayed as 'aut dedere aut judicare'and 'optional jurisdiction';although there can be universal jurisdiction for specific crimes,relevant practice does not suffice to produce customary universal jurisdiction for them according to the standards of customary universal jurisdiction;as peremptory norm,according to its standards,there is not 'compulsory universal jurisdiction',and its substantial law as well as obligational law features also fail to be compatible with universal jurisdiction.Chapter Four explores the relationship between universal jurisdiction and immunity from criminal jurisdiction.This chapter analyzes from three aspects,namely,law,theory and fact.In terms of law,the rules of functional immunity and personal immunity have been established in international law,so the execution of universal jurisdiction will be restrained by the immunity of other countries if there are no exception provisions against immunity.In terms of theory,different interests and value demands for universal jurisdiction and immunity have to be balanced,with the former prevailing.Meanwhile,from the angle of politics,cancellation of immunity is equal to handing over the exclusive contract-based supervision and sanction right of the public to a third country that cannot be held responsible for it,hence going against the principle of democracy.In terms of fact,on strength of utilitarianism and through the analyses of benefit,cost,merits and demerits,this chapter holds that under current international social framework,it is not feasible to abandon immunity against universal jurisdiction.Even though it is feasible,there will be more harms than benefits.Based on the above,universal jurisdiction shall be restrained by immunity.Chapter Five analyzes the defendant absence issue related to universal jurisdiction application.This chapter abandons the position of judging the defendant absence issue related to universal jurisdiction by itself alone,but instead connecting it with the issues of international legal basis and immunity.When the forum state applies universal jurisdiction on international legal basis without going against immunity,there is no reason to object the application of universal jurisdiction with defendant absence;or otherwise,the reasons for failing to complete criminal procedures and other illegal consequences have nothing to do with defendant absence itself.However,according to international human rights norms and domestic criminal trial principles,the application of universal jurisdiction without defendant is only limited to investigation stage,so trial without defendant is negated.Seen from the application of universal jurisdiction,the later three issues have inner logical relationship.According to the discussions and conclusions,the basic system for universal jurisdiction can be established and the judgment standards for the abuse of jurisdiction can be defined.For scholars engaged in the research on universal jurisdiction theories and the nations involved in universal jurisdiction practice,they have to follow international rule of law,pay attention to values balance as well as the feasibility of measures and system.Due to that universal jurisdiction practices on international core crimes display a conservative trend and there is a complete universal jurisdiction legal basis for and few impediments against common crimes,the application of universal jurisdiction on common crimes shall be the key direction in international society in the future.The official attitude towards universal jurisdiction of China is consistent with its long-observed diplomatic policies.According to the conclusions of this dissertation,it can be concluded that China can propose the specific criteria for defining the abuse of universal jurisdiction,so as to contribute to the establishment of the universal jurisdiction system that can balance criminal justice and national sovereign rights and interests.