Author:Kontorovich, Eugene

INTRODUCTION 1418 I. UNIVERSAL JURISDICTION AND STATE SELF-INTEREST, 1422 A. The Paradox of Universal Jurisdiction 1422 B. Univeral Jurisdiction as a Judicial Public Good 1426 C. The Costs of Exercising Universal Jurisdiction 1428 II. PIRACY AND THE PRACTICAL USES OF UNIVERSAL 1431 JURISDICTION A. The Evidentiary Uses of Piracy Universal Jurisdiction 1431 B. Universal Jurisdiction in Nonuniversal Cases 1434 III. NONUNIVERSAL UNIVERSALITY IN MODERN PIRACY CASES 1439 A. Flags of Convenience and Third-Party Operators 1440 B. Policing by Naval Vessels 1443 C. Supplemental/Ancillary UJ 1444 D. Universality for Hire 1445 IV. UNIVERSAL JURISDICTION, EXTRADITION, AND IMMIGRATION .. 1446 INTRODUCTION

This Article presents a new account of the international law doctrine of universal jurisdiction (UJ), which allows states to prosecute certain crimes--such as piracy, torture, and genocide--despite lacking any jurisdictional nexus with the offense. Most scholars regard UJ as the paradigm of an international legal regime that transcends state sovereign interests. Prosecutions of universal offenses, in the standard view, involve countries acting on behalf of abstract international legal order.

UJ has existed for centuries, but was first limited to maritime piracy, and later the slave trade. The last decades of the twentieth century saw a significant expansion of the doctrine to human rights offenses. Numerous states passed statutes to implement UJ over such crimes, and several high-profile prosecutions were launched against world leaders like Chile's Augusto Pinochet. (1)

The use of UJ as the cornerstone in a new international order based on law became a major initiative for nongovernmental organizations ("NGOs") and international organizations. However, actual prosecutions brought under UJ, whether for piracy or atrocity crimes, are vanishingly rare.

This Article presents a new account of UJ that explains it in light of the actual patterns of its use. It suggests that universal jurisdiction emerged, and is primarily used, not to allow states to mete out abstract justice, but to prosecute cases that directly and particularly affect their national interests, which they might not otherwise be able to deal with due to the operation of various other legal rules. Both historically and today, both for piracy and for human rights offenses, UJ has been overwhelmingly used against defendants who have caused a particular injury to the prosecuting state. UJ in practice is a pragmatic, technical tool of state self-interest. It serves as a kind of "catchall" backup doctrine for cases that fall through the cracks of other international jurisdictional categories.

This Article also sheds light on broader theoretical debates on how international law affects state behavior. Most current international law scholarship can, very crudely, be divided into two general methodological approaches. (2) One approach, borrowed from economics and international relations (IR) theory, assumes that states rationally pursue their own interests. (3) Their specific preferences may vary, but they are exogenous and stable. States will, in their interactions with other states, do what leaves them better off. They will only comply with or seek to further international law--which often seeks to facilitate cooperation, and increasingly, to protect absolute values such as human rights--when the benefits exceed the costs, in terms of their own objective function.

While rational choice theory does not precommit one to a view on what a state's objective function looks like, most IR theorists treat a state's security, territorial integrity, and wealth as key and typically determinative components. Rational choice theorists are typically skeptical of ambitious normative agendas for international law, like advancing human rights. In their view, states will advance human rights when the net costs of doing so are negative. (4) Thus, international law will only affect state decisionmaking to the extent it can create real costs and benefits, and not because it is "law."

An alternate group of approaches can be called the "liberal" or "norms-oriented" school, (5) which also includes a variety of theories, such as the con-structivist and transnational legal process approaches. Overall, these approaches do not take state interests as exogenous. How a state--or according to the liberal approach, influential substate actors, such as diplomats and NGOs--define their interests is itself a function of the normative environment, interactions with other actors, and even moral values and "the power of principled ideas." (6) These approaches emphasize how the existence of legal rules and processes can change a state's utility function through processes like socialization and "compliance pull." (7) These theories often see international law as a system evolving toward greater international cooperation, and, ever so slightly pulling countries along.

Universal jurisdiction poses challenges to both the rational choice and liberal/constructivist theories of international law. The existence of a doctrine of UJ would seem difficult to reconcile with rational choice predictions; the way the doctrine has manifested itself in actual state behavior fits less well with the competing view. This Article presents a new account of actual universal jurisdiction cases that straddles the competing understandings of international law and state behavior. This Article shows that UJ is overwhelmingly used and instrumental in cases where it promotes the most narrow and traditional notions of state self-interest. At the same time, the reasons UJ is a useful tool reflect the importance of international law in shaping state behavior, as these reasons arise from legal doctrine itself.

This Article closely examines all actual UJ cases involving piracy, the most longstanding UJ offense. It finds that a detailed examination of the context in which piracy occurred, and the particular facts of UJ cases, shed light on how the paradox of UJ can be resolved. In short, despite its internationalist rhetoric, UJ provides states with practical legal tools to respond to parochial problems--to advance their state interest, narrowly conceived. Thus, the (limited) success and significant persistence of UJ over piracy can be attributed primarily to its lending itself to the needs of rational state actors. This understanding of UJ can help predict and explain the situations in which we will continue to see UJ applied for human rights offenses.

This Article has a doctrinal and theoretical agenda. It seeks to provide an account of the functions UJ serves, not in the rhetoric of international law, but in the practice of states. It thus seeks to provide a new explanation for certain common themes in universal jurisdiction cases that helps explain both the cases in which it is used and the overwhelming number in which it is not. It also seeks to use this understanding to reflect on the competing theories of international law's effect on state behavior.

Primarily, it shows how universal jurisdiction has a role that is entirely consistent with rational state interest, and this role accounts for almost all piracy prosecutions that invoke the principle. The practical uses of UJ also both help explain the rarity and the persistence of UJ over human rights offenses, and explain, both retrospectively and predictively, important factors in case selection. But while showing how UJ is not only consistent with, but in fact an instrument of, state self-interest, it also shows that even the most parochial state interests, such as protecting the state's commercial interests abroad or deterring immigration by major criminals, are themselves framed in a context of international legal rules. The practical uses of universal jurisdiction illustrate the importance of both state interest and liberal/constructivist theories of international law.

To be sure, the view of universal jurisdiction as a tool of global justice is not inconsistent with its use in furtherance of state interests. Many adherents of the global justice view acknowledge that state uses of UJ may often be aligned with their interests, and certainly that universal jurisdiction will not be exercised when there are high diplomatic costs of doing so. Conversely, this Article does not show or suggest that all uses of UJ are inconsistent with the global justice model. This Article, however, suggests that UJ is overwhelmingly used, in underappreciated ways, as a solution to other legal barriers to the prosecution of crimes with which the forum state has a nexus. Emphasizing universal jurisdiction as a practical tool of domestic law enforcement policy should not be taken as minimizing the importance or international normativity of the doctrine. Rather, it helps to better understand the pattern of its use, and predict its future development.

Part I sets out the paradox of UJ. It sketches the history of the doctrine, from piracy to human rights offenses. It outlines recent research that reveals the extreme rarity of the exercise of UJ over any crime. This is juxtaposed by repeated judicial assertions of the doctrine's vitality and scattered cases in which it is in fact used. Part I goes on to explain why UJ would appear difficult to account for in a rational interest model of state behavior. It illustrates the high costs of exercising UJ, costs that states have generally regarded as prohibitive, given the lack of any directly conferred benefit on themselves. Part II presents an account of the practical function UJ historically served over piracy--an account that reconciles the longstanding and widespread acceptance of the doctrine with its extremely rare use, and that helps explain why it evolved specifically in the context of piracy, despite the broad recognition that it was not the most serious or heinous crime of international concern. (8)

It then illustrates this account via two of...

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