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Universal Jurisdiction as an International 'False Conflict' of Laws

45 Pages Posted: 5 Feb 2009 Last revised: 1 Mar 2016

Anthony J. Colangelo

Southern Methodist University - Dedman School of Law

Date Written: February 4, 2009

Abstract

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

Colangelo, Anthony J., Universal Jurisdiction as an International 'False Conflict' of Laws (February 4, 2009). Michigan Journal of International Law, Vol. 30, No. 3, 2009; SMU Dedman School of Law Legal Studies Research Paper No. 00-35. Available at SSRN: https://ssrn.com/abstract=1337777

Anthony J. Colangelo (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States
2147682372 (Phone)

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