Article 105 of the United Nations Convention on the Law of the Sea of 1982[1] allows any State either on the high seas, or in any other place outside the jurisdiction of any State, to 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 as to decide upon the penalties to be imposed, and to determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.[2] This rule which has been codified only in the XX century is called ‘universal jurisdiction’ or the ‘universality principle’.[3]

However, as of today despite the universal acceptance of this rule as one of the oldest international customs[4] the issue of the practical implementation of the universal jurisdiction of states based on the aforementioned principle is extremely serious. In the absence of clear legal regulations governing its use, universal jurisdiction not only reduces the effectiveness of international struggle against piracy but in many cases is a limiting factor.

The universality principle is a unique legal phenomenon: in contrast to other types of international jurisdiction, universal jurisdiction is not based on the idea of sovereignty or acquiescence of a state, rather it strives to overcome them. Therefore, universal jurisdiction is often defined as one that might be exercised by a state against the will of others who possess either territorial or other forms of jurisdiction. The universal jurisdiction doctrine stems from the fact that some crimes are so dangerous both for each and every state and international legal order in general that their perpetrators should not enjoy impunity by resorting to the principle of respect for state sovereignty and inviolability of borders.[5]

Up-to-date, the vast majority of scholars are of the view that piracy is the only crime whose universal jurisdiction enjoys customary status. However, despite the fact that universal jurisdiction over piracy has existed for years there has been an extremely small number of judicial cases on piracy initiated by resort to this principle. Unfortunately, the fact that many states still do not allow their courts to exercise universal jurisdiction over pirates only worsens the situation.[6]

Moreover, any state which has such a jurisdiction may voluntarily abandon it in favor of another state.[7] Given such a situation, a fair state abandoning its jurisdiction would assume that the requiring state has a jurisdictional priority, whereas an unfair state would consider the feasibility of its actions on bringing the perpetrators to justice instead of being guided by the aim of protecting its citizens or fulfilling its international obligations. In any case the result will be the same: criminals might remain at large and continue their criminal craft.

The principle of universality is enshrined in miscellaneous international acts which theoretically should facilitate its implementation. However, in practice, the existing legal regulations are not sufficient as either to construct the mechanism of appropriate actions or to clarify the meaning of the principle. In this regard the work of the International Law Commission[8] on the synthesis of current practices and the development of common criteria for its contemporary use is deemed to be of an extreme importance.

Yet, the paradoxical situation related to the criminal jurisdiction still remains. Whereas some criminal offences entail the will of several states to exercise their jurisdiction over it, piracy as a crime of serious concern to international legal order does not enjoy the same privilege whilst states refuse to exercise jurisdiction referring to the existence of a right rather than an obligation. Thus, by avoiding proper action states actually shift the burden of punishing those responsible for piracy to states whose vessels or citizens will become victims of this crime the next time it happens. As a result, the principle which was conceived as a guarantee of the inevitability of punishment in practice turns into an instrument enabling states to avoid their international and domestic obligations.

Written by Jan Guardian