Kiobel, Unilateralism, and the Retreat from Extraterritoriality
Indiana Univerity Maurer School of Law
Maryland Journal of International Law, Vol. 28, Spring 2013
With the U.S. Supreme Court's decision in Kiobel v. Royal Dutch Petroleum, the general mood among those in the human rights community is pessimistic. Because it curtails use of the Alien Tort Statute, viewing the Kiobel decision as a loss in an ongoing struggle is tempting. From this perspective, Kiobel is another indication that the Court continues to reinvent itself with a particular brand of conservative activism, the U.S. remains hostile to international law and its institutions, and corporate interests have won out over the protection of individuals. The first reaction of many academics concerned with protecting human rights will be to decry the result and paint the case as a setback.
This article casts the Kiobel decision in a different light, and as one case in a line of cases involving unilateral, extraterritorial regulation. Viewed through a different lens, Kiobel is a case about whether the United States should privilege unilateralism over multilateralism, and whether it prefers international over pluralistic approaches to global governance. In this way, the case may signal the beginning of a modest retreat from a failed strategy of aggressive American unilateralism -- viewed by other countries as legal imperialism -- that has taken root in a number of public and private law contexts. The case could mark an opportunity to renew efforts to return to more vigorous international lawmaking based on multilateral consensus. In this way, to the extent Kiobel helps to inter unilateral regulation of foreigners for conduct occurring abroad, the case is not a setback for international law or human rights, but rather a vindication of them.
This article describes the rise of extraterritoriality in American law and how extraterritoriality, in both the public and private law contexts, became a uniquely American way to build an empire. After describing extraterritoriality's rise, it explains how extraterritorial approaches came under sustained attack, and how those attacks replicated domestic political and culture war debates occurring in the United States. Lastly, it explains why the Kiobel decision has a brighter side for those committed to advancing human rights, and how unilateral, extraterritorial regulation (at least of the foreign-cubed kind) can undermine other longer-lasting, multilateral efforts to advance respect for human rights.
The article was prepared for the University of Maryland Francis King Carey School of Law's Annual International and Comparative Law Symposium. The symposium -- Extraterritoriality Post-Kiobel: International and Comparative Law Perspectives -- was hosted in November 2012 by the Maryland Journal of International Law.
Number of Pages in PDF File: 29
Keywords: Kiobel, Morrison, extraterritoriality, extraterritorial, prescriptive jurisdiction, legislative jurisdiction, transnational, presumption against extraterritoriality, human rights, human rights litigation, multilateralism, unilateralism, foreign-cubed, Alien Tort Statute, ATS, territoriality, SOSA
JEL Classification: K10, K13, K19, K20, K33, K41
Date posted: April 24, 2013