Universal Jurisdiction, the Alien Tort Statute, and Transnational Public-Law Litigation after Kiobel
105 Pages Posted: 17 Mar 2014 Last revised: 30 Mar 2015
Date Written: March 14, 2014
The Alien Tort Statute, enacted in 1789 as part of the first Judiciary Act, provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations. . . .” Although the statute lay dormant until the 1980s, the ATS has since become the font of transnational public law litigation in American courts. This litigation, frequently involving largely foreign parties and events, has become a form of civil-side universal jurisdiction. Like more traditional forms of universal jurisdiction, it allows American courts to hear human rights claims based on the enormity of the offense, even when the claims lack any significant ties to the United States. But unlike traditional universal jurisdiction, which is overwhelmingly a criminal phenomenon, the ATS places control over initiation and conduct of the litigation in private hands and engages the exceptional machinery of American civil justice.
The Supreme Court sharply limited ATS suits last year in Kiobel v. Royal Dutch Petroleum Co. This article defends the Court’s rejection of universal jurisdiction in Kiobel and assesses the future of human rights litigation in American courts. I make three main sets of arguments. First, I submit that the the scope of human rights litigation under the ATS is best viewed not as a sui generis problem of foreign relations law, as most lawyers and scholars have treated it, but within the more traditional federal courts framework of implied rights of action and federal common law. Kiobel’s concerns about extraterritorial application of the ATS fit comfortably within this framework, and they suggest that the Court will be extremely cautious about expanding the scope of ATS litigation in future cases. Second, I contend that scholarly exploration of the ATS’s terse text and limited history has reached the point of diminishing returns. The Framers of the First Judiciary Act could not have anticipated what ATS litigation would become, and they left us very few useful clues to answer, for example, whether aiders-and-abettors of human rights violations should be liable. The best hope for adequate answers to such questions lies with Congress, and the article proposes a number of reforms that should be addressed in a new statute amending or replacing the ATS. Third, I place the ATS in the context of broader debates about enforcement of international human rights. In this context, we confront two crucial questions of institutional design: reliance on supranational or national institutions, and public or private control of enforcement. I suggest that this debate, too, can be usefully informed by domestic debates about regulatory enforcement. But the international context affords a unique middle option, which is decentralized public enforcement of international human rights by national governments.
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