Kontorovich: The Inefficiency of Universal Jurisdiction

Eugene Kontorovich (Northwestern - Law) has posted The Inefficiency of Universal Jurisdiction. This is another paper in the Symposium "Public International Law and Economics," forthcoming in the University of Illinois Law Review. Here's the abstract:

This article presents an economic perspective on universal jurisdiction ("UJ"). Under traditional jurisdictional rules, only nations with a direct connection to a crime can prosecute it. These limits amount to a "standing" doctrine for states. The relatively new notion of UJ allows all nations in the world to seek redress for certain serious international crimes, even if those nations were in no way affected. Thus, UJ amounts to a repeal of standing requirements for certain kinds of cases.

Quite often, the resolution of international problems involves some nations trading their right to prosecute certain international crimes in exchange for something more valuable. Such trades notably come in the context of amnesties that induce a despotic government to leave office, or belligerents in a civil war to law down their arms. But in fact, it is common-place for states and international criminal tribunals to waive or not exercising prosecutorial entitlements when the net benefits of prosecution are outweighed by the net costs. Such "transactions" can take many forms, such as charge bargains, exile, and, most commonly, simple sub rosa non-prosecution. And as this article shows, while controversial among academics, such trades have been made in most post-conflict situations, and have been encouraged and brokered by the international community, including the U.N.

While such deals are socially valuable - the increase the utility of the states and other parties involved - UJ makes them much harder to reach. This is because UJ greatly increases transaction costs by making ownership of the relevant entitlement - the right of to prosecute an international crime - broadly shared. When all nations effectively co-own the prosecutorial entitlement, full amnesty requires making deals with all. This in turn encourages states to strategically hold out by threatening prosecution. The increase in transaction costs may block even Pareto optimal deals.