Working Paper No. 04-25:
A Positive Theory of Universal Jurisdiction

Author(s):

Eugene Kontorovich

Date Posted: 2004

Availability:
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Abstract:

Discussions of universal jurisdiction ('UJ') have been mostly normative, focusing on what UJ 'should' be in an ideal world. This Article analyzes UJ from a positive perspective. It explains UJ in a way that is consistent with its historic origins, major cases, and with the incentives of rational, self-interested states. This provides a better understanding of what UJ has been in the past, as well as its limits and potential for the future..

Piracy was for centuries the only UJ offense. This Article begins by isolating the characteristics of piracy that made it uniquely suitable for UJ. While these characteristics show why UJ over piracy would cause fewer problems than UJ over other crimes, they do not explain why nations would actually exercise UJ. Rational choice models of state behavior suggest nations would have no interest in exercising UJ. All that UJ adds to conventional categories of international jurisdiction is the ability of unaffected nations to prosecute. Given that prosecution is costly, rational, self-interested states would not expend scarce resources to punish crimes that did not directly harm them. Nations using UJ would bear all of the costs of enforcement while receiving none or little of the benefits. UJ is a public good, and thus it would be provided at suboptimally low levels, if at all.

Yet the rational choice prediction appears inconsistent with UJ over piracy. This Article presents a new explanation of the function served by the universal principle. This explanation reconciles the historic evidence and the major cases with the rational choice model. Universal jurisdiction over piracy was useful to nations as a legal fiction rather than as a substantive expansion of jurisdiction. It was an evidentiary rule, a presumption designed to facilitate the proof of traditional territorial or national jurisdiction in cases where such jurisdiction probably existed but would be difficult to prove.

Current efforts to broaden UJ invoke piracy as a precedent and a model. However, the new universal jurisdiction represents an entirely different phenomenon, one that does not share the characteristics that were necessary to piracy becoming universally cognizable, and that does not accord with the incentives of self-interested states. Thus the positive account of UJ suggests that the current efforts to expand it to human rights offenses will not succeed in improving enforcement or deterrence.