국제테러의 억제와 집단적 책임ㆍ관할권의 한계

The idea of jurisdiction in international law is closely bound up with the citadel of state sovereignty. Although it is regarded as a manifestation of state sovereignty, its exercise also accompanies the notions of right, duty and responsibility. And contemporary international law recognizes three forms of responsibility, i.e. individual, collective and social responsibility(Draft Articles on State Responsibility, Arts.42 & 48). Since the exercise of jurisdiction entails responsibility, it requires full cooperation among states on the basis of equity and balance, especially in matters of the common interest of the international society appertaining to peace, security and public order. The jurisdictional provisions of the 1970 Hague and 1971 Montreal Conventions adopted to combat aviation terrorism are preponderantly based on the territorial principle, entitling only a couple of contracting states parties to claim concurrent jurisdiction. This, if not wholly haphazard or arbitrary, is not entirely wholesome, and attests to the fact that international law has long operated on and pivoted around state sovereignty. The jurisdictional clause in the 1988 Rome Convention on the suppression of maritime perils has incorporated both the active and passive nationality principle and the protective principle. This has enabled several contracting states parties, not all, to exercise jurisdiction(collective responsibility and jurisdiction). This extension of jurisdiction over maritime terrorism, nevertheless, still stops short of allowing all contracting parties to exercise it on an equal and equitable basis(universal or quasi-universal jurisdiction). This, however, does not necessarily mean that universal jurisdiction is totally alien to international law. Piracy and slave trade are the two notable examples. And although international law has established the obligation erga omnes in respect of war crimes, genocide and crimes against humanity, unfortunately, the international society has failed to translate this holistic approach into accommodating the universality principle and universal jurisdiction over genocide or acts of international terrorism. Not every contracting state is made to bear the fair burden of performing obligation to exercise jurisdiction. Uniform and universal compliance may not be guaranteed. Terrorism constitutes a crime against humanity, holding innocent people hostage and claiming innocent lives. It is a crime against international peace and security, destroying public facilities and means of transport and creating havoc for the public order. Universal jurisdiction based on responsibility erga omnes and social solidarity will better protect and promote the common good and public interest of the international community as a whole from the threat of global terrorism. The message is clear: wherever they are located, terrorists will be arrested and tried in(or extradited to) the proper forum without much political or legal ado(Lockerbie case). This is evidenced in the universal jurisdiction exercised over piracy. This would also represent an efficient and equitable risk allocation and distribution.