Erga Omnes

Guo Xiaomei, China’s legal adviser to the Chinese Mission to the UN, presented to a General Assembly committee last week her country’s succinct position on universal jurisdiction.  First, there’s no consensus on the meaning of universal jurisdiction (other than for piracy); jurisdiction remains territorially driven.  Second, immunity for political leaders and diplomats trumps any notion of universal jurisdiction.  Third, the obligation to “extradite or prosecute” is linked to specific treaties; there’s no general obligation to claim universal jurisdiction.  Fourth, political abuse of universal jurisdiction is a violation of international law and state sovereignty.  All told, she concluded:

We hope that a common understanding can be found through in-depth exchange of views.  Pending such a common understanding, all states should refrain from exercising jurisdiction over another state in the name of so-called universal jurisdiction.     

China is not alone in these critiques.  In fact, Sri Lanka’s Permanent Representative to the UN made a similar statement last week, after a civil lawsuit was filed against its own deputy permanent representative to the UN for alleged torture in Sri Lanka.  China’s position is a classic denial of how international human rights norms challenge traditional notions of state sovereignty.  But it’s also a rhetorical gambit, premised on the assumption that other governments’ fears of universal jurisdiction will in the end stall the debate.

* For an interesting elaboration of this perspective, see this recent article in the Chinese Journal of International Law.