Origins of Universal Jurisdiction in Early International Law

A Republic of the Whole World[1]

Universal Jurisdiction has only recently become of concern to the legal community. In the wake of World War II it rose from an obscure doctrine confined primarily to admiralty, to the position of prominence and importance (if largely theoretical) that it has on the modern international stage.  Being so new, universal jurisdiction is still poorly understood.  To borrow a turn of phrase from the political realm, the prevailing narrative of universal jurisdiction has yet to take hold in the minds of the legal community.[2]

One such narrative that is at present being spun by various commentators in academia and elsewhere is that universal jurisdiction is insufficient to permit the extraterritorial prosecution of war criminals, or indeed any other type of criminal besides high seas pirates (this is what I will henceforth call “weak universal jurisdiction”).   The argument for weak universal jurisdiction is principally based on the interpretation of universal jurisdiction that tied it inextricably to the crime of high seas piracy.  In the course  of these pages I will demonstrate that it is this “weak” understanding of universal jurisdiction that is of recent invention.  As it will be shown, the origins of universal jurisdiction run deep,  and at a conceptual level the relationship between universal jurisdiction and piracy is not an intractable one, nor was it ever conceived of as such.

Universal jurisdiction has its beginnings in the early law of nations as a check on the power of national sovereignty.  The authority of sovereign nations has never been “absolute” power (as has often incorrectly been alleged[3]) even from the earliest origins of the notion of sovereignty as established by the Treaty of Westphalia.[4] Indeed, the early commentators, including such jurisprudential luminaries Alberecco Gentili,[5] Hugo Grotius and Emerich de Vattel gave no credence to such an incomplete understanding of the law of nations as being based solely upon the consent of sovereigns.

Grotius

In Mare Liberum, Grotius mounts a spirited defense of the freedom of trade on the high seas.  In no uncertain terms, Grotius acknowledges that there is a law among nations such that, at a foundational level, may not be violated by any sovereign:

“Hoc igitur ius ad cunctas gentes aequaliter pertinet: quod clarissimi Iurisconsulti eo usque producunt, ut negent ullam rempublicam aut Principem prohibere in universum posse, quo minus alii ad subditos suos accedant, et cum illis negotientur.”[6]

Those who would subvert the rights guaranteed by the law of nations (in this case the Portuguese who were attempting to subvert the Dutch right to free trade routes on the high seas) he compares to pirates,[7] and decries their crimes as “violative of nature itself” (naturam denique ipsam violant).

Vattel

Vattel further developed the theories of Gentili and Grotius, and was in many ways the direct forebear of the positivist school of international law.  But as Leo Gross puts it, Vattel was able to “establish… the consensual character of international law and to reduce natural law from the function of supplying an objective basis for the validity, the binding force, of the law of nations to the function of supplying rules for filling gaps in positive international law.”[8] Vattel thus represents a great stride in the development of a positivist account for international law, but at the same time the natural law remains prominent as the foundation for his theory of international jurisprudence as well as the yardstick against which its success is measured.  The requirements of natural law go beyond those affirmatively consented to by nations and potentially usurping the sovereignty of those nations that do not give such consent.  Such is Vattel’s line of reasoning where he considers the basis for universal jurisdiction over piracy:

“Mais cette raison meme fait voir, que si la Justice de chaque Etat doit en general se borner a punir les crimes commis dans son territoire, il faut excepter de la regle ces scelerats, qui, par la qualite et la frequence habituelle de leurs crimes, violent toute surete publique, et se declarent les ennemis du Genre- humain. Les empoisonneurs, les assassins, les incendiaires de profession peuvent etre extermines partout ou on les saisit; car ils attaquent et outragent toutes les Nations, en foulant aux pieds les fondemens de leur surete commune. C’est ainsi que les Pirates sons envoyes a la potence par les premiers entre les mains de qui ils tombent.”[9]

On Vattel’s view the application of universal jurisdiction over hostes humani generis is essentially the converse of the principle which ensures that very sovereignty of nations. According to Vattel, pirates are subject to universal jurisdiction because the offense is against the surete commune and is on this basis alone an affront to all nations equally.  It is this aspect of the crime of piracy that renders it under the domain of universal jursidiction, and although the home nation of the victim of piracy has been more directly wronged this does not negate the claim of universal jurisdiction on the part of any other court.  The hostis humani generis affronts all nations in some way under the law of nations, and Vattel plainly extends this beyond simply pirates, but also to “poisoners, assassins and arsonists” (les empoisonneurs, les assassins, les incendiaries).

Thus the strictly positivist account of international law can be seen as being of recent vintage, as the origins of international law are steeped in appeals to natural law.  It does not seem like such a leap as some critics suppose to make the argument that a sound theoretical basis exists for courts to exert universal jurisdiction over the classical pirate or the modern war criminal equally; both are surely hostes humani generis. And, as this paper will go on to show, as the doctrine of universal jurisdiction developed into the modern era, the status of hostis humani generis can be derived from many different species of crime, from the classic crime of piracy on the high seas where the trade of all nations is affected, to a crime of such heinousness as to affront all nations, such a torture, genocide or the slave trade. 

The slave trade

Helpful in understanding the operational relationship between universal jurisdiction and the crime of piracy is by way of comparison with the related crime of slavery.  There is a marked hesitancy on the part of the courts in asserting universal jurisdiction over slave traders, a tendency which reflects the shifting attitudes of the international community towards piracy.  In United States v. La Jeune Eugenie, although the court denies that U.S. courts have authority to exert universal jurisdiction, Justice Story acknowledges in his ruling that slave trading was in violation of “universal law.”[10] It is clear, though, that by the onset of modern era the crime had become recognized as so abhorrent as to render the status of hostis humani generis upon the criminal.

In the 1982 Law of the Sea Convention we find specific acknowledgement that the slave trade falls within the ius cogens generally accepted by the community of nations. Article 110 goes on to authorize the warships of any nation to board any ship suspected of engaging in the slave-trade.[11] Furthermore there is a tacit acknowledgement that, vis-à-vis ius cogens, these provisions of the treaty represent a legitimate usurpation of sovereign power, applicable to nations whether they are party to the treaty or not.   Under Article 99 of the 1982 Law of the Sea Convention “any slave taking refuge on board any ship, whatever its flag, shall ipso facto be free.”[12]

This cannot be seen merely as within the potential sphere of jurisdiction, rather the reverse is true: that since the criminality of piracy is a peremptory norm, it is simply not within the power of a sovereign to authorize, and more important not within to power of any sovereign to forbid another jurisdiction over such a crime.  According to the Vienna Convention on the Law of Treaties, any “treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”[13]

The U.N. sets out a very open-ended definition of what constitutes a peremptory norm, i.e. something which has been recognized as such by the “international community.”  With such broad language this provision has unsurprisingly been a source of contention among scholars, however the intention seems clearly to defer to the body of ius cogens.  It follows that under the Vienna Convention, no consensual agreement of any group of sovereigns can deny universal jurisdiction, even a group of one, and this applies irrespective of whether the sovereign is party to any particular treaty.[14] Even though a sovereign may have the authority to limit universal jurisdiction with respect to its own courts, clearly under the Vienna Convention no treaty among nations can have that effect.

---

[1] Francisco de Vitoria, “res publica totius orbis.”

[2] The narrative has not, to use the terminology of Jung’s theory, yet cemented in the collective unconscious of the law

[3] Eugene Kontorovich, The Piracy Analogy: Modern Universal Jurisdiction’s

Hollow Foundation, 45 Harv. Int’l. L. J. 183 (2004), at 184.

[4] Gross, Leo The Peace of Westphalia 42 Am. J. Int’l L.1 (1948).

[5] Id. At 15 “In Gentili, of whom it has been said that he had taken the first step towards making international law what it is, namely, almost exclusively positive, international law still appears to be based on natural reason and derived from a law of nature superior to the nations.”

[6] Grotius, Mare Liberum, Chapter 1 (1609).

[7] Id.  “Sequitur ex sententia Lusitanos etiamsi domini essent earum regionum ad quas Bataviproficiscuntur, iniuriam tamen facturos si aditum Batavis et mercatum praecluderent.  Quanto igitur iniquius est volentes aliquos a volentium populorum commercio secludi, illorum opera quorum in potestate nec populi isti sunt, nec illud ipsum, qua iter est, quando latrones etiam et piratas non alio magis nomine detestamur, quam quod illi hominum inter se commeatus obsident atque infestant?”

[8] Gross at 17.  Professor Gross goes on to note that: “This distinction between the dual function of natural law in relation to the law of nations is not always observed and yet it would seem to deserve close attention.”

[9] Emerich de Vattel. Le Droit des Gens, Book I, Chapter 19 (1758) paragraphs 232-233.

[10] United States v. La Jeune Eugenie, 509 F. Supp. 212 (C.C.D. Mass. 1822).

[11] 1982 Law of the Sea Convention at Article 110 A/ CONF.62/122 (1982).

[12] Id. at Article 99.

[13] Vienna Convention on the Law of Treaties, Article 53, May 23, 1969, 1155 U.N.T.S 331, 8 I.L.M. 679 (1969) [hereinafter Vienna Convention]

[14] Id.