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The Regional Difference on Human Rights and Criminal Justice: Judicial Self-Determination Lost through the Suppression from Western States? Universal Jurisdiction and Prohibition of the Death Penalty

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AbstractStates in different regions have different visions and interpretations of international law on how to achieve the goal of protecting human rights, and these differences are causing some conflicts between European states and non-European states. This article examines such conflicts in the field of criminal justice – in the exercise of extradition, universal jurisdiction, and the death penalty. In the field of international criminal law, there are new norms emerging, for example, a rule (referred in this article as ‘the Rule’) that in a situation of concurrent jurisdictions, the court that conducts a fair trial by providing sufficient human rights protection should proceed with the prosecution. In accordance with the Rule, European states decide to exercise their own jurisdiction over cases committed abroad by foreigners, and refuse to extradite a suspect when he or she is likely to face a death penalty or impartial trial. However, the practices of European states in applying new norms in accordance with their understandings of a fair trial and prohibition of the death penalty invited opposition from those states whose national jurisdiction is denied or defeated. They are criticised as an infringement of state sovereignty, or as an unreasonable compulsion of Western values. Such opposition can be observed in the aggressive response from African states asserting that the universal jurisdiction exercised by European states over African officials for crimes committed in Africa contradicts the sovereign equality and independence of African states, thus evoking memories of colonialism. Also, although the influence of the prohibition of death penalty by European states is reflected on the Japan-EU Agreement on the Mutual Legal Assistance in Criminal Matters, Japan continues to retain the death penalty.

Affiliations: 1: Faculty of Law at the Kanazawa


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