The Inefficiency of Universal Jurisdiction
Eugene Kontorovich | 2008 U. Ill. L. Rev. 389
Under standard international jurisdictional rules, nations can only prosecute conduct with which they have some connection. However, under the growing doctrine of universal jurisdiction (“UJ”), nations have the right to punish certain crimes despite having no relation to the offense. Universal jurisdiction is thus like a very liberal standing rule, one that allows anyone to litigate the legality of particular conduct, without requiring a concrete injury. Drawing on the economic analysis of standing rules, this article shows how UJ’s broad grant of jurisdictional entitlements can create inefficiencies—results that hurt net global welfare.
Sometimes owners of prosecutorial entitlements choose not to exercise them, or to trade them for some other benefit. Common examples include amnesty deals, exiles, and charge bargains. Sometimes the highest value of the right to prosecute lies in not using it. However, when the prosecutorial entitlement is given to all nations, its efficient use becomes difficult. While all nations may benefit from the waiver or trade of the entitlements, any one nation can prevent these benefits from being realized by choosing to prosecute. Because of high transaction costs, it may be impractical for nations that favor waiver to “buy out” the entitlements of those that waive prosecution, even when that would be the socially optimal outcome. Indeed, because UJ allows any one nation to frustrate amnesty and similar arrangements, it encourages opportunistic holdout. To put it differently, UJ means that a complete amnesty deal can only be reached in the unlikely case that all nations are party to it.
The inability to reach efficient waivers of prosecutorial entitlements is only a problem if prosecution is not mandatory for jus cogens offenses, if justice can be traded for peace. Much recent literature argues that UJ is mandatory, that settlement of jus cogens issues is prohibited. The final part of the article shows that the overwhelming weight of state practice, and the positions of the United Nations and international tribunals demonstrates that prosecution is not mandatory, and that efficient settlement even of universally cognizable crimes is recognized in in-ternational law.