Universal Jurisdiction as an International “False Conflict” of Laws
This Essay proposes a framework for analyzing the concept of universal jurisdiction and evaluating its exercise by States in the international legal system. In brief, the author argues that universal jurisdiction is unique among the bases of prescriptive jurisdiction in international law, and that its unique character gives rise to unique-and underappreciated- limiting principles. The main analytical device the author uses to make this argument is the notion of a “false conflict,” which is borrowed from the private law field of conflict of laws, also known outside the United States as private international law. The author does not suggest that any particular permutation of false conflict (there are a few) in the private law sense can or should be seamlessly grafted onto the international legal system. Rather, the aim is to explore some general themes captured by the idea of a false conflict of laws and to craft a species of false conflict for the international legal system that can helpfully structure legal and policy thinking about universal jurisdiction in ways that accommodate both prevailing state sovereignty and individual rights concerns.