A Positive Theory of Universal Jurisdiction
Academic discussions of universal jurisdiction (“UJ”) have been almost entirely normative, focusing on what UJ “should” be in an ideal world. This Article breaks with the normative approach and analyzes UJ from a positive perspective, drawing on historical evidence and rational choice models to understand what UJ has in fact been and what it can be.
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 still fail to explain why nations would actually exercise UJ. The rational choice model of state behavior reveals that they would not. All that UJ adds to conventional bases of 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 receive none of the benefits of enforcement, while bearing all the costs. UJ is a public good, and thus it would be provided at suboptimally low levels, if at all. Standard discussions of UJ entirely ignore the incentives faced by nations. When these incentives are taken into account, it appears that UJ cannot succeed in increasing enforcement or deterrence.
Yet the rational choice prediction appears inconsistent with the fact that piracy was for centuries treated as universally cognizable. 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 real 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.
Modern 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.
Human Rights Law | International Law | Jurisdiction
Date of this Version
Eugene Kontorovich, "A Positive Theory of Universal Jurisdiction" (March 23, 2004). bepress Legal Series. bepress Legal Series.Working Paper 211.