The Supreme Court and the Alien Tort Statute: Kiobel v. Royal Dutch Petroleum Co.
American Journal of International Law, Vol. 107, 2013
28 Pages Posted: 14 May 2013 Last revised: 10 Jun 2013
Date Written: May 13, 2013
Alien Tort Statute litigation has generated a growing number of questions about the the scope of statute, but in Kiobel v. Royal Dutch Petroleum Co. the Supreme Court finally answered one of them: the presumption against extraterritoriality applies to the statute. Going forward, courts may apply a robust version of the presumption, effectively ending ATS litigation as we currently know it. Or, they may not. The Court’s citations to Morrison v. Nat’l Austl. Bank Ltd. suggest the former; some language in the various opinions suggests the latter. This article explores these uncertainties and also discusses additional factors that may be significant for the courts’ application of the presumption in future cases: a potential analogy between the ATS and the Sherman Act, the purpose of the ATS, and the appropriate deference to accord the executive branch in ATS litigation. Finally, it considers the significance of Kiobel to the development and enforcement of international law and argues that the uncertain course charted by the Court in ATS litigation is in many respects unexceptional.
Keywords: Alien Tort Statute, Kiobel, Sosa, universal jurisdiction, prescriptive jurisdiction, extraterritoriality, human rights, fragmentation, pluralism, deference to the executive branch, customary international law, transnational litigation
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