WPS 2017-03: State Courts as Trustees of Humanity: Towards a New Approach to Universal Jurisdiction

Steve Fikhman

Westphalian sovereignty and universal jurisdiction represent two opposing sides in a long-drawn-out theoretical quarrel: the former is known for its uncompromising support of state independence and noninterference, while the latter calls for a more inclusive approach, embracing judicial accountability towards others. The paper examines these two notions and inquires whether they necessarily contradict each other. Building upon the theory of sovereigns as trustees of humanity, the paper analyzes and identifies state courts as having a fundamental role in the sovereign’s obligation to take foreign interests into account. Acknowledging this role, the paper presents normative as well as practical justifications in favor of the coexistence of sovereignty and universal jurisdiction, leading to the formation of a new “minimal obligation,” namely the obligation of state courts, in some circumstances, to apply universal jurisdiction and adjudicate international law infringements.

WPS 03-17 (pdf)