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THE CHINESE UNIVERSAL JURISDICTION CLAUSE: HOW FAR CAN IT GO?

Published online by Cambridge University Press:  28 April 2005

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Abstract

The Chinese practice with regard to universal jurisdiction should not be ignored when examining its legal status under contemporary international law. Article 9 of the Chinese Criminal Code 1997 (CC 1997) provides the domestic legal basis for the PRC to exercise its criminal jurisdiction over those crimes stipulated in those concluded international treaties within the scope of obligations prescribed therein. This article explores the birth of the Chinese universal jurisdiction clause from a historical perspective, and makes a much-detailed interpretation of it in the combination of the jurisprudence and the most recent judicial practices. It is intended to clear up the misunderstanding widespread in the western world that the PRC never recognizes universal jurisdiction, and provides a picture of the Chinese understanding of universal jurisdiction in the CC 1997. However, due to the restrictions of the legal factors, such as the absence of certain international crimes and penalties in the CC 1997, the inability of applying the customary international criminal law in the Chinese courts, the requirement of the presence of the accused within the Chinese territory, as well as the respect of immunity for the persons with high official position, the effect of the Chinese universal jurisdiction clause is so restricted that it is almost impossible to play a role of suppressing international crimes, in particular those core crimes within the Rome Statute, in the international level.


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© T.M.C. Asser Press 2005

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