Why Kiobel’s Rejection of Universal Jurisdiction Matters

Why Kiobel’s Rejection of Universal Jurisdiction Matters

Our discussion of Kiobel has been fascinating, but it has been focused on the question of what exactly is left of the ATS in the future and what differences exist between the majority opinion and the various concurrences.

In our contribution today to Forbes.com, John Yoo and I focus on Kiobel’s significance in light of the history of ATS litigation.  Building on my earlier post on this subject, we argue that the real significance of Kiobel is its unanimous rejection of an interpretation of the ATS that would grant universal jurisdiction.

The Supreme Court’s unanimous decision last week to dismiss a lawsuit alleging human rights violations by Royal Dutch Shell in Nigeria is already being portrayed as a victory for big corporations over human rights victims. While the decision will allow some multinational corporations to avoid being sued in the United States for business activities overseas, the real significance of the Court’s decision is that it provides a wise example of judicial restraint and deference to the role of Congress and the President to set American foreign policy.

In particular, we argue:

Kiobel’s unanimous rejection of universal civil jurisdiction is thus the most significant part of its ruling. Writing for the Court, Chief Justice John Roberts held that the presumption that U.S. law does not apply to acts outside the territory of the United States should apply to ATS cases. Championed by Justice Antonin Scalia in an earlier 2010 decision involving the reach of U.S. securities laws, this rule forces Congress and not the courts to decide whether to apply U.S. law to foreign activity.

This common sense rule reserves for the political branches the crucial right to weigh the foreign policy consequences of subjecting foreign conduct to U.S. law. It also gives Congress a chance to determine whether it wants to give private plaintiffs the power to enforce such norms or keep it in its traditional home, the President and the executive branch.

So before we all end up in the weeds of interpreting Roberts’ last paragraph and Kennedy’s concurrence, let’s keep in mind the bigger picture.  Nine justices rejected the universal jurisdiction reading of the ATS.  Breyer’s concurrence would have preserved only Filartiga-style safe harbor cases under a weird (or at least creative) version of the protective principle.  This is already a pretty big shift in most observers’ understanding of the ATS, and, in our view, a welcome one.

Print Friendly, PDF & Email
Notify of
Kevin Jon Heller

“[T]he real significance of the Court’s decision is that it provides a wise example of judicial restraint and deference to the role of Congress and the President to set American foreign policy.”

Really? Courts have been hearing ATS lawsuits for more than two decades, yet the President and Congress have never once attempted to amend the ATS statute to prohibit them. So doing it for them is “judicial restraint”?

I knew that a majority of the Court were bitterly conservative. I had no idea they were also psychic.


KJH is correct.  The Roberts ruling smacks of judicial activism to smash human rights cases filed under the ATS. The absurdity of the ruling is underscored by Kennedy’s remarks about the many “open questions.”  Like corporate liability – Roberts couldnt veto ATS suits on this ground so he went and “found” a justification. 

M. Gross
M. Gross

As I’ve said before, this really cried out for a legislative fix.  However, it was apparent that the lower courts were going to ignore the obvious problems with ATS jurisdiction and congress wasn’t going to act.
They kind of forced the SCOTUS’s hand. It’s not like the court didn’t wait decades longer than it was wise to.

John Knox

The Breyer four may have used the protective principle as a cloak, but the safe harbor language seems to me to be a pretty close facsimile of universal jurisdiction for some types of claims.  For international crimes/human rights violations that qualify their perpetrators as “common enemies of mankind,” all that Breyer would seem to require in order for a federal court to hear an ATS claim against an individual is his or her current presence in the United States, even if the individual, the victim, and the tort were all foreign.