Post-Kiobel, Are We All Ready to Move On From the ATS?

The American Journal of International Law has posted electronic excerpts from its “Agora: Reflections on Kiobel”, which will be published in its next issue.  As a contributor to the AJIL Agora myself, I was fascinated to see the different takes that everyone had on the decision.  For the most part, contributors seem to read Kiobel the same way: as sharply cutting back or even eliminating the vast majority of Alien Tort Statute claims that are based on overseas conduct.  In general, the Agora seems to signify that the international legal academy is ready to move on from the ATS: to other jurisdictions like the Netherlands or Europe, to new statutory amendments to the ATS, to other non-litigation based mechanisms, or perhaps to state courts in the U.S.

As for my contribution, I was more interested in taking apart Kiobel’s resounding, unanimous, and surprising rejection of universal civil jurisdiction under the ATS.  I am in partial sympathy with the take of Professor David Moore, another Agora contributor who is more focused on US domestic law aspects of the ATS.  I think scholars and advocates have underestimated the importance of plain-vanilla separation of powers concerns in leading to the Court’s refusal to read the ATS as granting universal jurisdiction to federal courts.  Here is the opening from my essay (and make sure you check out the whole Agora):

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).2 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.