Assembly/AU/ 14 (XI) Page 1 PART I: UNIVERSAL JURISDICTION IN INTERNATIONAL LAW 1. The concept of jurisdiction is integral to the sovereignty of States and is fundamental to the functioning of the international legal system. Judge Rosalyn Higgins, the President of the International Court of Justice describes jurisdiction as an allocation of competence to States, which is important for the avoidance of conflict of authority. i Jurisdiction in international law is essentially the competence of States to exercise lawful authority over persons, territory as well as events. Jurisdiction may be civil or criminal (regulatory) in nature. The typology of jurisdiction includes prescriptive jurisdiction (authority to make laws) and enforcement jurisdiction (authority to apply and enforce laws). There are different bases for the exercise of jurisdiction, including territoriality, nationality, protective, universality and the more controversial passive personality and effects principles. ii 2. This Report is concerned with the concept of universal jurisdiction as a basis for the exercise of jurisdiction by States in international law. The Report includes a comprehensive study of the concept of universal jurisdiction with a view to elucidating the origins, nature, scope, applicability and effects of the concept. It also seeks to address the concerns expressed by the meeting of AU Ministers of Justice and Attorneys General on the apparent abuse of the principle by some Non-African States. ORIGIN AND NATURE 3. There is generally no agreed doctrinal definition of universal jurisdiction in customary and conventional international law. iii However, this does not preclude any definition ,which embodies the essence of the concept as the ability to exercise jurisdiction irrespective of territoriality or nationality. iv Therefore, the concept of universal jurisdiction applies to a situation where “the nature of (an) act entitles a State to exercise its jurisdiction to apply its laws, even if the act has occurred outside its territory, has been perpetrated by a non-national, and even if (its) nationals have not been harmed by the acts.” v The Princeton Principles on Universal Jurisdiction provide that universal jurisdiction pertains broadly to the power of States to punish certain crimes irrespective of the place committed and by whom committed (i.e. in the absence of other grounds for the exercise of jurisdiction). vi 4. Universal jurisdiction is not without controversy and this extends to its history as well as its applicability. While authors like Henry Kissinger, The former Secretary of State of the United States of America, have challenged the principle of universal jurisdiction to be novel, vii earlier indications of the principle go back to the international crime of piracy. Customary international law proscribes the crime of piracy and the exercise of universal jurisdiction by States over pirates is accepted in customary international law. Article 19 of the 1958 Geneva Convention on the High Seas and Article 105 of the 1982 United Nations Convention on the Law of the Sea codify this customary rule that, “On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board.” viii _______________________________________________________________ * The Commission acknowledges the input of Dr. Chaloka Beyani, Senior lecturer London School of Economics, towards the preparation of this Paper.