The Tragedy of Universal Jurisdiction

Picture a medieval town, 110 acres in size and populated entirely by 10 cattle ranchers. Each rancher lives on a 1 acre parcel of land that together surround a 100 acre open space used for grazing cattle.

One Hundred Acres

If the 100 acre open space is shared by all 10 ranchers in common, each herder has a strong and continuing incentive to increase the size of his herd. For each additional cow sent to pasture, the individual herder receives the full benefit of one additional cow’s milk or meat. Yet because the grazing land is shared by all 10 ranchers in common, each herder suffers only 10% of the harm caused by that additional cow, which comes in the form of deterioration of the common grazing land.

Over time, however, as the ranchers realize this economic advantage and add additional heads of cattle to the pasture, the common land’s overall grazing capacity will diminish to the point that the land is no longer usable for any of our 10 medieval ranchers, leaving them all with less milk and meat than they would have had otherwise.

This parable, known as the “Tragedy of the Commons,” is well known to anyone who has sat through a college level economics class. It is often cited as a key rationale for the private ownership of property, illustrated in this case through the privatization of the grazing pasture that forced each herder to account for the full cost and benefit of each additional cow sent to pasture.

Other commons problems include population growth, fisheries, and pollution. In each scenario, the idea is that allocating costs and benefits in individuals – rather than in communities – is the surest way to ensure that resources are accurately valued and efficiently employed.

In its own way, the modern prosecution of pirates presents something of a commons problem, with prosecution under a theory of universal jurisdiction standing in for common grazing space and prosecution using a more direct theory of jurisdiction representing the enclosure of that common space.

Where a state prosecutes a pirate under the theory of universal jurisdiction, that state bears the vast majority – if not all – of the cost of the extradition, trial, and imprisonment of the suspect. While those costs are both real and substantial, the benefits are much less so. A prosecuting state asserting universal jurisdiction is fulfilling its international obligation to combat piracy as well as making the high seas marginally safer for international shipping traffic, but these benefits flow to the international community as a whole, in equal measure. No benefits fall discretely to the prosecuting state.

On the other hand, if a state prosecutes under territorial, nationality, passive personality, or protective jurisdiction, the costs of prosecution remain the same, but the benefits become both more sizable and more concrete. In addition to the undifferentiated benefits of a universal jurisdiction prosecution, the prosecuting state is either protecting its territorial integrity, punishing a national for committing piracy, vindicating violence committed against a citizen, or protecting its own political and economic interests, depending on the chosen theory of jurisdiction.

This brings us back to the classic commons parable involving the cattle ranchers.

In that example, the common grazing of land led to internalized benefits and externalized costs, which in turn led to an increase in economic activity even if such activity was imprudent in the long run. When the commons was enclosed, both costs and benefits were internalized within the individual rancher, who then tended to have the “right” amount of cattle on his pasture thereby improving every rancher’s individual prospects along with the prospects of the group.

Universal jurisdiction piracy prosecutions lead to a similar (though converse) situation where costs are internalized and benefits externalized such that under-prosecuting – as opposed to over-grazing – is the norm. If the benefits of prosecution are internalized within a given state through a more substantial basis for jurisdiction, the chances of a prosecution should actually increase.

Indeed, the facts on the ground suggest that piracy prosecutions can be viewed as a commons problem. In a 2010 empirical study, Eugene Kontorovich found that between 1998 and 2009, only fourteen out of the 1,063 reported piracies in international waters resulted in a universal jurisdiction prosecution, a rate of 1.31%.

Put another way, a state is over 75 times more likely to prosecute a pirate when the costs and benefits of prosecution – rather than just the costs – fall to that state. This is exactly what one would expect under the commons formulation.

In a simpler world, one in which more jurisdictional avenues are better than fewer, the idea that a pirate negotiator who neither enters into an ex ante agreement with the pirates nor is physically present on the high seas has not committed a crime of universal jurisdiction may appear to be a hindrance to the international community seeking to put an end to maritime piracy.

Yet both facts and theory tell a different story. States are much more likely to assert jurisdiction based on the territorial, national, passive personality, or protective theories of jurisdiction than universality, and if prosecuting pirates is fashioned as a commons issue, this is exactly what economic theory would predict.

When considering jurisdictional avenues to prosecute pirate negotiators at least, less can be more.

Jon Bellish is a Project Officer at the Oceans Beyond Piracy project in Boulder, Colorado (though all of his views are his own), and he has experience in United States piracy trials. He just got on Twitter. This article is cross-posted on Communis Hostis Omnium.

3 thoughts on “The Tragedy of Universal Jurisdiction”

  1. Very interesting article Jon and well-articulated.
    However, I’ll push back on the metaphor.

    In the cattle hypothetical, the benefits were internalized but the costs although genuine were externalized and thus muted. This led to a erroneous economic calculation by the individual ranchers.

    You suggest that the reverse is true with universal jurisdiction: benefits are genuine, but externalized and muted, while costs are internalized.

    This presupposes that the benefit exists but its externalization masks its true value.

    The reality I would suggest is that UJ is not a commons that serves to mask the bona fide benefit of UJ prosecutions, but rather there are few legitimate benefits to an isolated piracy prosecution of low level pirates whether jurisdiction is based on nationality, personality or UJ — and jurisdictions know this. When jurisdictions do assert territorial or national jurisdiction over piracy it is because the nexus increases the obligation to prosecute because of a sense of duty and from social and political pressures that can be brought to bear by affected parties.

    There are real benefits to prosecuting high-level organizers and financiers of piracy. My guess would be that there would be a much higher assertion of UJ over those cases.

    • Thanks for the comment, David.

      Your point is well taken, but I think it complements, rather than contradicts, my commons argument.

      I would reformulate slightly your summary of my argument. I am saying that the “absolute benefit” of a low level piracy prosecution in solving the broader problem of piracy is the same (read: similarly tiny) regardless of whether that trial is the result of a UJ prosecution or one with a more substantial jurisdictional nexus.

      That the absolute benefit is so small is reflected in the broader trend of catch and release, which is believed to occur at a rate of between 70 and 90%.

      Separate the absolute benefit of a piracy prosecution (reflected in the catch and release rate) from the relative benefit of a UJ prosecution as opposed to one based on, say, territoriality (reflected in proportion of UJ prosecutions to total prosecutions), and the commons argument starts to make more sense.

      Even for prosecution of financiers, we should still expect victim or territorial states to pick up a much larger share of the prosecutorial burden than states whose only connection is through universality.

      And as you rightly pointed out, because the absolute benefit is so much greater in the case of financiers, we should expect a catch and release rate that approaches zero.


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