Part I: Universal jurisdiction in international lawinternational law
IV. Extraterritorial jurisdiction and the principles of sovereignty and non-intervention sovereignty and non-intervention
It is often argued that limits to jurisdiction may flow from the principle of sovereign equality between states, which is laid down in Article 2(1) of the UN Charter, and its corollary, the principle of non-intervention or non-interference in domestic affairs (hereafter “principle of non-intervention”).145 Under the principle of non-intervention, states are prohibited from intervening in the domestic affairs of other states.146 The principle was first formulated by Vattel147 and has since been the subject of many resolutions of the General Assembly of the United Nations. It is now considered to be part of customary international law,148 although its content is not entirely clear.
The 1970 Declaration on Principles of International Law concerning Friendly Relations contains an entire section entitled “The principle concerning the duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter”.149 It states, inter alia, that “No State or group
143 Gaeta, supra note 119, at 599.
144 The term “non-interference” (in domestic affairs) is also used.
145 See D. Francis Donovan and A. Roberts, ‘The Emerging Recognition of Universal Civil Jurisdiction’, 100 American Journal of International Law (2006), at 142; On the distinction between the two terms, see Henzelin, Le principe de l’universalité en droit pénal international : Droit et obligation pour les Etats de poursuivre et juger selon le principe de l’universalité, at 162-163; According to Oppenheim, the prohibition of intervention “is a corollary of every state’s right to sovereignty, territorial integrity and political independence”; Oppenheim’s International Law (2008), at 428.
146 C. Ryngaert, Jurisdiction in International Law (Oxford: Oxford University Press, 2008), at 144.
147 E. de Vattel, Droit des gens ou principes de la loi naturelle, Vol. 1 (London/Neuchâtel, 1758), § 37.
148 Henzelin, Le principe de l’universalité en droit pénal international : Droit et obligation pour les Etats de poursuivre et juger selon le principe de l’universalité, at 163.
149 UN GA, Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, A/RES/25/2625, 24 October 1970.
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of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State”. The ICJ reaffirmed the principle in the Nicaragua case.150 The general principle includes the prohibition on the use of force, as set forth in Article 2.4 of the UN Charter,151 but also prohibits intervention in the internal affairs of other states in ways not involving the use of force. The principle has been invoked a number of times by states who opposed the exercise of universal jurisdiction by another state. It was, for instance, invoked by Chile to oppose Spanish and British claims to universal jurisdiction.152
Indeed, regarding extra-territorial jurisdiction, the principle of non-intervention, applied strictly, could mean that “any jurisdictional assertion that reaches beyond a State’s boundaries is a violation of international law”.153 This is not the approach opted for by the international community, as has been shown in the two approaches outlined above.
Above all and as affirmed in the Lotus judgment, this principle prohibits the exercise of enforcement jurisdiction by one State in the territory of another.154 As mentioned above, universal jurisdiction, in the sense used in this study, is generally not concerned with enforcement jurisdiction. It should be noted, however, that if a state exercises universal jurisdiction in absentia, a state cannot – without violating the principle of non-interference – arrest a person on the territory of another state, i.e. the territorial or national state without this state’s consent. In this regard, the “arrest” of Adolf Eichmann by Israel in Buenos Aires in 1960 is a good example of a breach of Argentina’s sovereignty. Likewise, the abduction of Alvarez-Machain, a Mexican national suspected of having tortured and murdered a Drug Enforcement Administration (DEA) agent, on Mexican territory, was unanimously considered a violation of Mexico’s sovereignty.155 However, in our view, when a state issues an international arrest warrant, it is still acting within the frame of the wider form of prescriptive jurisdiction, as
150 Judgment, Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (Merits), Permanent Court of International Justice, 27 June 1986.
151 Art. 2(4) of the Charter states that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”.
152 Henzelin, Le principe de l’universalité en droit pénal international : Droit et obligation pour les Etats de poursuivre et juger selon le principe de l’universalité, at 165.
153 Ryngaert, Jurisdiction in International Law (Oxford: Oxford University Press, 2008), at 144.
154 Bowett, ‘Jurisdiction: Changing Patterns of Authority Over Activities and Resources’, 53 British Yearbook of International Law (1982) 1-26, at 17.
155 See Henzelin, Le principe de l’universalité en droit pénal international : Droit et obligation pour les Etats de poursuivre et juger selon le principe de l’universalité, at 175 and the references cited.
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opposed to asserting enforcement jurisdiction within the territory of a foreign state.156
It is generally agreed that the principle of non-intervention constitutes a limit to the establishment and exercise of legislative and judicial extraterritorial jurisdiction, although this is subject to some controversy.157 The general view is that the establishment and exercise of any type of jurisdiction, including legislative and judicial jurisdiction over ordinary crimes, may infringe upon the principle of state sovereignty.158 In this sense, it can be argued that the exercise of universal jurisdiction, based exclusively on the domestic legislation of the state and having no foundation in conventional or customary international law (so-called “unilateral universal jurisdiction”), violates the principles of non-intervention and of the equality of states before the law.159
However, what is also generally agreed among scholars160 is that the principle of non-intervention does not prevent the exercise of extraterritorial
156 In fact, the term international arrest warrant is somewhat misleading, because it may suggest that the arrest warrant is enforced in other states without the consent of the authorities of that State. This is not the case. Indeed, unlike the European arrest warrant, which, when issued, is automatically enforced in other European countries, the “international arrest warrant” is in fact a national arrest warrant issued by a State which is generally communicated to Interpol and enforced by the authorities of the receiving state. On this subject see the Dissenting Opinion of Judge Van den Wyngaert, § 76-79.
157 Feller, for instance, disagrees with such a view, arguing that even with regard to regular offences,
“The view that criminal jurisdiction over offences committed within the territory of another state involves a violation of the sovereignty of that state, particularly when the offender or the victim is not connected by citizenship or by residence to the first state, went out of fashion a long time ago. The jurisdiction, per se, is exercised within the territory of the first state and not within the territory of the state in whose territory the offence was committed as a reaction to offences which, although committed outside its borders, threaten its vital interests. This does not involve any violation of the sovereignty of the state in whose territory the offence was committed, nor of the sovereignty of any other state to which the offence is connected by any other linkage”, in S. Z. Feller, ‘Concurrent Criminal Jurisdiction in the International Sphere’, 16(1) Israel Law Review (1981) 40-74, at 47.
158 See the discussion and references in Henzelin, Le principe de l’universalité en droit pénal international : Droit et obligation pour les Etats de poursuivre et juger selon le principe de l’universalité, at 179-182. See also Cassese et al., Cassese’s International Criminal Law, at 282.
159 In this direction, see Permanent Mission of Chile to the United Nations, The Principle of Universal Jurisdiction: Comments by the Government of Chile, § 3.
160 See Cassese et al., Cassese’s International Criminal Law (2013), at 282; Henzelin, Le principe de l’universalité en droit pénal international : Droit et obligation pour les Etats de poursuivre et juger selon le principe de l’universalité, at 170-171; Ryngaert, Jurisdiction in International Law (Oxford:
Oxford University Press, 2008), at 144; M. Inazumi, Universal Jurisdiction in Modern International Law: Expansion of National Jurisdiction for Prosecuting Serious Crimes Under International Law (Antwerp: Intersentia, 2005), at 136.
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prescriptive jurisdiction over crimes whose prohibition is rooted in international customary law,161 “since prohibition of these crimes is intended to safeguard values regarded as fundamental by the whole international community”.162 Indeed, as stated in the Cairo-Arusha Principles, “The principle of non-interference in the internal affairs of States, […] shall be interpreted in light of the well-established and generally accepted principle that gross human rights offences are of legitimate concern to the international community, and give rise to prosecution under the principle of universal jurisdiction”.163 The same position was held by the Institute of International Law in its Resolution on The Protection of Human Rights and the Principle of Non-Intervention in Internal Affairs of States.164
For other international crimes that are only prohibited by treaty, the assertion of jurisdiction on specific extraterritorial grounds, namely universal jurisdiction, must be established by a treaty provision in order to ensure that the principle of non-interference is respected.165 In such cases, the exercise of universal jurisdiction is exclusively limited to the territories of the state parties to the treaties.
In our view, in all cases – even for the most heinous international crimes – the principles of state sovereignty and non-intervention should serve as guiding principles in the discussion regarding the challenges to the exercise of universal jurisdiction, namely the application of the subsidiarity principle and the presence.