Universal Jurisdiction as an International 'False Conflict' of Laws
45 Pages Posted: 5 Feb 2009 Last revised: 1 Mar 2016
Date Written: February 4, 2009
This symposium Essay uses the private law notion of a "false conflict" of laws to develop a coherent and normatively sound legal framework for evaluating the exercise of universal jurisdiction by states in the international legal system. The Essay suggests that properly exercised, universal jurisdiction creates no conflict of laws among states because, as a matter of prescriptive jurisdiction, universal jurisdiction is never really extra-territorial, and thus never generates the possibility of conflicting, overlapping laws. Rather, universal jurisdiction comprises a comprehensive territorial jurisdiction, originating in a universally-applicable international law that covers the globe. Individual states may apply and enforce that law in domestic courts, to be sure, but its prescriptive scope encompasses all territory subject to international law, i.e. the entire world.
Because the justification for exercising universal jurisdiction is an entitlement to apply international law, a number of limiting principles follow from a false-conflict view: (i) states must faithfully apply international law, or else risk violating both other states' sovereignties and individual rights; (ii) the international law of sovereign immunity applies; and (iii) non bis in idem or double jeopardy protection attaches to bar successive prosecutions based solely on universal jurisdiction.
Suggested Citation: Suggested Citation