This Article presents a new account of the function served by universal jurisdiction (UJ). This doctrine—one of the most diplomatically controversial in modern international law— allows states to prosecute certain grave international crimes, even committed abroad, and with no connection to the prosecuting state.
This Article shows that, far from being used as a tool of global policing, the UJ doctrine is, in practice, used to protect the parochial domestic interests of the prosecuting state. In showing this, this Article reconciles several paradoxes related to UJ—its broad and longstanding normative acceptance by states contrasted with its extremely rare application; and its tension with a rational model of state action contrasted with its apparent embrace by states. Unlike the numerous normative or aspirational theories of UJ, this account builds up from a comprehensive review of almost all UJ cases over the past two hundred years.
It finds a surprising common element among them. In the overwhelming majority of UJ cases, both over piracy and human rights offenses, the forum state actually has a direct, differentiable, parochial connection with the offense. While the nominal purpose of UJ is to allow states to prosecute crimes without any nexus to the offense—to enforce a global legal order—in practice it is almost exclusively used by states in precisely the cases where such a nexus exists.
Universal jurisdiction is useful in cases where, despite a concrete link between the forum state and the defendant, prosecution under traditional jurisdictional theories would be impossible due to other legal or practical impediments. In short, UJ is, in practice, a kind of catchall or safety net that facilitates dealing with extraterritorial crimes with a strong domestic nexus, when the standard legal tools for such prosecutions prove inadequate. It is not, however, used by states to enforce broad notions of global justice and the prevention of impunity.
The specific “parochial” uses of UJ have changed over time. For piracy, UJ was a shortcut designed to facilitate the proof of traditional territorial or national jurisdiction in cases where such a nexus with the forum state probably existed but would be difficult to prove. Such problems of jurisdictional proof were commonplace in piracy, where a variety of ruses adopted by pirates, and other circumstances, often made establishing the nationality of vessels or victims difficult.
In the recent boom in universal piracy prosecutions, the doctrine again served parochial state interests by allowing for prosecutions in cases with a clear domestic nexus that would not be covered by other jurisdictional grounds. The rise of flags of convenience severed the formal jurisdictional links between nations with shipping companies and the vessels they own and operate. UJ allowed maritime nations to prosecute attacks on vessels owned by their nationals, but flagged elsewhere. An examination of Somali piracy cases shows that in almost all such prosecutions where UJ was invoked, a direct state interest was nonetheless involved.
Finally, the practical understanding of UJ helps explain the current pattern of its use, and more frequently disuse, to punish human rights offenses. The exercise of UJ over war crimes and human rights offenses has been exclusively confined to Western European states. In recent years, all such cases have involved migrants and asylum seekers who committed grave international crimes in their home countries. Traditionally, they would be subject to extradition, but human rights rules now prohibit returning them. In such circumstances, UJ provides a tool by which countries can protect themselves from becoming a refuge for perpetrators of atrocities.
This Article also has a theoretical agenda. It casts light on the debate about how states relate to international law: merely as self-interested utility maximizers, for whom international law means nothing outside of the concrete costs it can impose, or parts of a global normative community that internalizes such legal values. This Article shows how UJ, which on its face seems inconsistent with the self-interested state model, is, in practice, entirely consistent with it.
The Parochial Uses of Universal Jurisdiction,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol94/iss3/8