The Tragedy of Universal Jurisdiction

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. Cross-posted at The View from Above.

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.

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.

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The Oil Continues to Spill: Transmaritime Criminality in West Africa

This time last year, we dedicated a few posts to the rise of piracy and other criminal activities in the Gulf of Guinea.  In particular, we discussed how much of these activities was a by-product of internal insurgencies and economic discontent in Nigeria and how the country’s attempted crackdown had the unintended consequence of pushing these criminal activities to nearby countries where lack of enforcement powers allowed them to thrive.

The situation has since continued to worsen. While there is currently a lull in piracy activities in Somalia and the Gulf of Aden, armed robberies and pirate attacks are sharply on the rise in West Africa. Reported incidents in the territorial waters of Nigeria, as well as Togo and Ghana, or in the international waters adjacent thereto, are now almost a daily occurrence. In the most recent of such attacks, the MT Energy Centurion, a Greek-owned oil tanker was hijacked and its 24 member crew kidnapped off the coast of Togo.

Historic Map of West Africa dated 1829 by Sidney Hall – Garwood & Voigt

The region is traditionally considered as a cornucopia of natural resources. West Africa is rich in oil and other hydrocarbons, but also fish, cocoa and timber, for instance. Nigeria is currently the biggest African oil producer, with an output of about 3 million barrels a day, most of which is exported to Europe and the US. Ghana, Liberia and Sierra Leone are the next countries to enter the oil production and export business, with new deposits discovered in their national waters in recent years. Such discoveries have the potential to bring economic development to some of the poorest countries in the world, in a region often forgotten even when plaugued by years of ruthless civil wars and rampant mismanagement. Development, however, needs to be matched by strong governance capabilities. Due to its social and geographical features, the Gulf of Guinea is not only suitable for commercial transportation but is also a potential hotspot for criminal activities, particularly exacerbated by unemployment, corruption and  lack of governance. Oil bunkering, piracy, illegal waste dumping, poaching, drugs and migrant smuggling are only the most visible tip of a larger array of criminal activities. Autonomous movements also have increasingly resorted to violence, with terrorism often inexorably spurring into ties with criminality. These activities are often, but not exclusively, perpetrated by organized criminal cartels. Smaller criminal gangs, however, also operate some activities. Their common medium, often or exclusively, is the sea, which provides direct opportunities for criminal acts as well as the means to perpetrate such acts. Oil platforms in international waters are increasingly the targets of pirates and robbers, while subsidized petrol is smuggled from Nigeria into neighboring countries in overnight trips just a few miles off their coasts. Transmaritime criminality consists of the composite interaction of various forms of organized criminal activities, including criminal cartels, oil, drugs, arms and human trafficking, the deeply rooted social causes at their basis as well as their economic and environmental impact. Transmaritime Criminality thrives on the high seas as well as in coastal developing countries due to limited law enforcement and rule of law capabilities.

Despite its apparent similarities with pirate activities in Somalia, the situation in West Africa is potentially more complex. Attacks are often reckless, and more violent. Rarely do these entail long lasting hijackings and kidnapping for ransom. Presumably due to the lack of capabilities to hold a ship  and its crew hostage for long periods, criminals often resort to stealing the ship’s cargo and releasing it after a few days. This was the case, for instance, in the hijacking of the MT Energy Centurion, which was quickly released in Nigerian waters with its crew after its valuable cargo was siphoned off. The oil will then likely be sold through the black market in face of the complacency, or powerlessness, of local authorities.

Subsidized Nigerian Oil is Smuggled Overnight to Togo and Picked up Directly Ashore to be Sold in the Local Black Market – Photo Daniel Hayduk – BBC

This criminal surge in West Africa did not go unnoticed at both the international and regional level. The UN Security Council has already dedicated various meetings and resolutions to the situation in the Gulf of Guinea. The US, but also France and China, among others, have stepped forward to provide assistance, in the form of training or equipment, to countries in the region. These, in turn, have engaged in coordination and dialogue, launching joint policing operations. The past spiraling of piracy in Somalia has obviously provided an indicator of the potential gravity of piracy thriving in lawless environments. It also developed a set of best practices in combatting piracy and its root causes. No internationally-sponsored naval patrolling mission akin to those launched by the EU or NATO in the Indian Ocean is foreseen in West Africa. The envisaged solution is that of a funneling these best practices through regional coordination, encompassing strategies of short and long term period, rather than direct international intervention. These strategies include the strengthening of enforcement powers and ad-hoc legislation. Typically, several affected countries have found their penal codes to be lacking the full criminalization of piracy and terrorism. A UN-sponsored regional conference aiming to put this phenomenon high on the agenda has been long envisaged, but yet failed to materialize. Against this background, it is worth reiterating the need to avoid the immediate risk of resource fragmentation, with already a plethora of UN and regional agencies and organizations involved as stakeholders. The fight against transmaritime criminality in West Africa has also the potential risk of becoming another lucrative self-feeding business, with military contracts already allegedly awarded to contractors of dubious background.