Kiobel and the Surprising Death of Universal Jurisdiction Under the Alien Tort Statute

107 American Journal of International Law 835 (2013)

Hofstra Univ. Legal Studies Research Paper No. 2014-05

8 Pages Posted: 19 Jan 2014

See all articles by Julian Ku

Julian Ku

Hofstra University - School of Law

Date Written: 2013

Abstract

The U.S. Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. has not ended future debate about the scope and impact of the Alien Tort Statute (ATS). But the Kiobel Court did resolve at least one issue with surprising unanimity: both the opinion for the Court by Chief Justice John Roberts and the main concurring opinion by Justice Stephen Breyer refused to interpret the ATS as authorizing universal jurisdiction. All nine justices rejected decades of lower-court precedent and widespread scholarly opinion when they held that the ATS excluded cases involving purely extraterritorial conduct, even if the alleged conduct constituted acts that are universally proscribed under international law. In this short essay, I argue that the surprising death of universal jurisdiction reflects the triumph of the “separation of powers” critique of the ATS, which casts a skeptical eye on giving federal courts an independent role in the administration of both ATS lawsuits and cases involving international law more generally. I argue that this separation of powers critique of the ATS, which has found relatively little academic support, is a crucial reason why the Court unanimously rejected universal jurisdiction in Kiobel and why the Court may further restrict the ATS in future cases.

Keywords: international law, separation of powers, universal jurisdiction

JEL Classification: K33

Suggested Citation

Ku, Julian G., Kiobel and the Surprising Death of Universal Jurisdiction Under the Alien Tort Statute (2013). 107 American Journal of International Law 835 (2013) ; Hofstra Univ. Legal Studies Research Paper No. 2014-05. Available at SSRN: https://ssrn.com/abstract=2380764

Julian G. Ku (Contact Author)

Hofstra University - School of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States
516-463-4237 (Phone)
516-463-6264 (Fax)

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
107
Abstract Views
780
rank
265,888
PlumX Metrics