Author Archive for
Julian Ku

Russia Reminds the World (and International Lawyers) of the Limits of International Law

by Julian Ku

I agree with Peter that the mere breach of the international law governing the use of force does not mean that all international law is useless and meaningless. But I don’t think Eric Posner’s pithy challenge to the international law academy on Ukraine can be so easily dismissed. International lawyers need, especially in this area, to provide a meaningful theory as to why international law affects state behavior, and why (as in this case) it seems to be having very little impact on Russia’s decision to use armed force in Ukraine.  Contra Peter, the fact that sometimes constitutional or corporate law rules are ignored or violated doesn’t really answer the question here.  When those norms are widely ignored (as with constitutional law rules in countries like China), then it is rational for actors in China to ignore those rules in most circumstances and most legal theorists would not call it “law” in any meaningful sense.

Which brings me to the Ukraine crisis.  I agree with Erik Voeten that international law and institutions will be helpful in other ways.  And I think Chris provides very helpful analysis of how international law can shape official state rhetoric.  But the fact remains that the international law restraining the use of armed force has utterly and completely failed to constrain Russia’s actions in  Ukraine.  This is more than simply adhering to the legislative veto. This is a body blow to a foundational piece of the international legal system.

In academic terms, the failure of the Charter  is evidence for both realists (who think international law never matters), but also for rational choice theorists like Posner, as to how international law really works.  Rational choice folks think that international law works best (in fact, works at all only) when states have a rational self-interest to cooperate around certain legal norms and institutions.  But where states no longer have such a rational self interest, states will depart from those legal norms.  Compliance with international law for the sake of complying with international law is naive and unrealistic.

The Russia-Ukraine crisis also impacts real-world policymaking. If international law, or at least the Charter’s rule on the use of force, is very weak or non-existent as a tool for restraining state action, then policymakers should not rely on the Charter rule as meaningful protection against aggression.
A strong military or a network of alliances would probably have been a better idea.  States must not overestimate the impact or force of this species of international law (as Ukraine’s new government seemed to do) when making decisions.  And states like the United States should be careful incorporating this rule into its domestic legal processes, or over-privileging its role in its own domestic public debate.

I may be biased as an American, but the U.S. has about the right balance on this. It does not ignore the Charter, but it does not treat the Charter as having too much independent significance except to the extent it affects the actions of other states (especially its allies).  The key thing to focus on in this crisis are the interests of the different states (and leading groups within states).  State interests are driving actions here, and the Charter violation seems to be doing almost now work.

The fact that the Charter is plainly being violated will not necessarily mean that Charter proponents like France and Germany will get tough with Russia (in fact, both are going the other way by opposing sanctions or any NATO consultations).  The fact that the Charter is plainly being violated will not mean China (another big Charter proponent) will do anything other than closely watch developments and urging “all sides to comply with international law” without naming any country.

International law can be, and often is, a very important tool for facilitating international and transnational cooperation.  But it is not doing much to resolve to Ukraine crisis, and international lawyers need to admit that.

Don’t Panic! The Budapest Memorandum Does Not Require US and UK to Defend Ukraine

by Julian Ku

Lots of reports, including those from the new Ukrainian government at a meeting of the UN Security Council, suggest that Russian military forces have crossed into Ukraine. This has caused a mild panic on Wall Street and some typically overwrought press reporting from, just to give an example, Britain’s Daily Mail.

A treaty signed in 1994 by the US and Britain could pull both countries into a war to protect Ukraine if Putin’s troops intervene.

Bill Clinton, John Major, Boris Yeltsin and Leonid Kuchma – the then-rulers of the USA, UK, Russia and Ukraine – agreed to the The Budapest Memorandum as part of the denuclearization of former Soviet republics after the dissolution of the Soviet Union

Technically it means that if Russia has invaded Ukraine then it would be difficult for the US and Britain to avoid going to war.

Uh…no it doesn’t. At least not from my reading of it.  It might be a good idea for the US to stand up for Ukraine’s territorial integrity, and it is true that the Budapest Memorandum commits Russia to respect Ukraine’s sovereignty and territorial integrity (I thought Russia’s president wanted to respect international law?).  The UN Charter does that anyway. The Memorandum does not in anyway obligate any country to intervene in order to guarantee Ukraine’s territorial integrity.

In other words, it is not a security guarantee, like the kind that the US has with Japan. It is also not a formal treaty which, at least under US law, would have more binding impact.  So relax, American doves, it’s 2014, not 1914.  International agreements will not lead us blindly to war (sorry, Ukraine!).

 

International Law: Not Helping to Resolve the Ukraine Crisis

by Julian Ku

I’m getting more and more nervous about events in Ukraine, and particularly in the Crimea.  Things are spinning (almost) out of control, and it is worth noting that international legal principles are not helping lead toward a resolution.

Instead of working out a negotiated transition, the new leaders of Ukraine have adopted a maximalist position by seizing power and then seeking to prosecute the former (?) president Viktor Yanukovych,  They’ve done this by (apparently) accepting the ad hoc jurisdiction of the ICC, and making noises about turning Yanukovych (and others) over to the ICC.

Kevin raises a very good legal point: ICC ratification appears to violate Ukraine’s own constitution as interpreted by its own constitutional court. But the new leaders of Ukraine don’t seem troubled by that ruling (or even aware of it).  So it is not surprising Yanukovych has retreated to Russia, where he can avoid both Ukrainian and ICC prosecutions.  In any event, an ICC referral will lock in Ukraine to its current path, making a negotiated transition even harder.

International legal principles are also not much help in restraining a Russian military intervention.  Russia appears to be mobilizing its military along the border, and the U.S. is warning against violations of Ukraine’s sovereignty.  It would be ironic if Russia starts to make noises about a need for “humanitarian intervention” to protect the Russian minority in Ukraine (especially in the Crimea).  It will also be ironic if the U.S. started demanding that Russia seek UN Security Council authorization for any use of force. The legal case for humanitarian intervention here is not very strong, but it is not implausible to think that retribution against ethnic Russians in Ukraine could happen.  I doubt the legality will bother Russia much (it didn’t much worry about it in Georgia), but now that Russia made such a big fuss about international law governing the use of force over Syria, will it do so here? And will anyone care?

Chinese Victims of Forced Labor Sue Japanese Companies in Chinese Courts; They Might Even Win

by Julian Ku

In a legal wrinkle to the ever-worsening Sino-Japanese relationship, the Chinese government has now publicly backed a lawsuit filed in Beijing courts against Japanese companies that used Chinese citizens as forced laborers during World War II.

The lawsuit names Mitsubishi Materials Corporation and Mitsui Mining and Smelting as defendants and asks for compensation of 1 million yuan ($163,000) for each defendant as well as apologies in the Chinese and Japanese languages to be placed with the country’s major media outlets.

Japan’s government has already opposed these lawsuits, saying that any such war reparation claims were settled by postwar agreements between China and Japan. Its spokesman:

“…I can say that since such problems were included in the Japan-China communique, there is no case,” he said. “The individual rights for seeking (compensation) were included in the communique.”

In a prior post, I noted that Korean courts have allowed similar lawsuits against Japanese companies to proceed despite pretty clear language blocking such lawsuits in the Korea – Japan Agreement on the Settlement of Property.  Unless I am missing something, however, I don’t see any similarly clear language in either the China-Japan Peace Treaty or in the 1972 Communique re-establishing diplomatic relations.  The Communique does contain this clause:

5. The Government of the People’s Republic of China declares that in the interest of the friendship between the Chinese and the Japanese peoples, it renounces its demand for war reparation from Japan.

This language could be read to bar claims by wartime victims against Japanese companies for forced labor, but that reading is far from clear (at least to me).  If you compare this language to the Korea-Japan Agreement (“problems concerning property, rights, and interests of the two High Contracting Parties and their peoples (including juridical persons)” were settled) (emphasis added) and the US-Japan Peace Treaty (“the Allied Powers waive all reparations claims of the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war…”) (emphasis added), then the Japan-China Communique language looks far less protective..

In the China-Japan Communique, only the “Government of the People’s Republic of China” has “renounced its demand for war reparations.”  The people of China, or individual Chinese people, might still have claims, and there is also  no mention of waiving claims against Japanese persons or nationals.  Normally, governments only have claims for reparations from other governments.

Moreover, while the U.S. took lots of Japanese property in “compensation” during its occupation of Japan before waiving its further claims, and Korea got the Japanese to pay a cool $300 million in 1965 dollars before settling its claims, the Chinese government got nothing (at least financially) for its agreement to waive its claims.  This seems to further support the idea that some wartime claims still exist.

So read in context, the Chinese plaintiffs have a better case than their (already victorious) Korean brethren.  It is also possible that the Communique (unlike the Peace Treaty) is a non-binding international agreement, which would also not have any direct effect in Chinese courts.  So based on the relevant treaties and agreements, I think the plaintiffs have a decent case here. Inded, it is surprising that no similar lawsuit was filed before in Chinese courts.  The reason probably has more to do with the nature of Chinese courts than the international treaties and agreements relating to this lawsuit.

 

Should Taiwan and China Join Forces in Defending Territorial Claims?

by Julian Ku

As China continues to offend or at least alarm its neighbors in East and Southeast Asia with its expansive territorial and maritime claims, it is worth noting there is one important Asian player who wholeheartedly supports each and everyone one of China’s sovereignty claims:  Taiwan. (Taiwan’s government even supports China’s sovereignty claim over Taiwan, just disputing which government is “China”.)

In fact, the government on Taiwan, as the Republic of China, is actually the government that originated the now highly-controversial Nine Dash Line when it was still in power on the mainland (actually, Taiwan’s line has Eleven Dashes, so it is even more expansive).  And Taiwan has the exact same sovereignty claim over the Diaoyu Islands/Senkakus that China has.  Taiwan actually houses a lot of the academic firepower and expertise on the international legality of these various maritime claims.

So this editorial from a pro-China Taiwan newspaper, calling for a joint China-Taiwan policy in favor of the South China and East China Sea claims, kind of makes sense.  If you overlook the fact that the two sides are still technically at war and all that.

In my view, Taiwan should jettison at least the most expansive of China’s claims, especially the Nine-Dash-Line.  It is odd, even ridiculous, for the government in Taiwan to support this claim of sketchy legality when (unlike China), there is no prospect of Taiwan ever asserting actual control over the South China Sea. And because the U.S. is now officially opposed to the Nine-Dash-Line, Taiwan needs to re-evaluate its position. If Taiwan sticks to its positions, and even starts cooperating with China on exerting their claims, then it is another sign that Taiwan is slowly drifting into China’s orbit and away from the U.S.  It may be a sign that, as leading realist scholar John Mearsheimer wrote this week, Taiwan’s eventual domination by China is only a matter of time.

Japan and Korea Take Their (History) Wars to U.S. State and Local Legislatures

by Julian Ku

A lawsuit filed yesterday in California federal court seeks the removal of a statue in a Glendale, California public park honoring women victimized by the Japanese military during World War II.  The placement of the statue was approved by the local city council with the strong support of Korean and Korean-Americans who want to recognize the suffering of the “comfort women”. The lawsuit appears to claim as one of its arguments that the local city council is interfering in national foreign affairs in violation of the US Constitution.

This lawsuit is only the latest front in a spreading battle between Korean and Korean-American groups and the Japanese government in various state and local legislatures.  In Virginia, the state legislature (again with strong Korean-American voters support) passed legislation requiring textbooks in public schools to note that the Sea of Japan is also called the “East Sea.”  New Jersey is considering similar legislation, and already has its own “comfort women” memorial.

As a legal matter, I can say with high confidence there is no serious argument that the placement of a statue in a public park, or the rewording of textbooks, violates the federal government’s foreign affairs authority under the Constitution.  No legal rights of foreign nationals are involved, nor is this a matter traditionally handled by the national government, nor does the US-Japan Treaty of Peace preempt this action.  So this aspect of the anti-memorial folks’ lawsuit seems pretty hopeless and borderline frivolous.

I am less sure about the policy benefits of this type of activity.  For US legislators this is just a cheap and easy way to get support from a growing voter population.  China’s government has tried a similar strategy to garner Korean friendship on a much grander scale when it put up a huge memorial to a early-twentieth-century Korean anti-Japanese revolutionary.  But those actions are purely out of self-interest.

On the other hand, all of this seems like a relatively gentle way to prod the Japanese on these issues.   In any event, expect to see more action at the state and local level in the U.S. One hopes (although this seems a vain hope) that this activity might even spark some useful Korean-Japanese debate on matters that they can’t seem to talk about much back in Asia.

Someone (Prof. Stefan Talmon) Finally Makes An Argument In Favor of China in the Philippines UNCLOS Arbitration

by Julian Ku

One of the most frustrating things about China’s response to the Philippines arbitration has been the brevity of its legal discussion and analysis.  In particular, I’ve long thought that China had a pretty good argument that the Annex VII UNCLOS arbitral tribunal does not have jurisdiction over the dispute since, in many ways, territorial disputes are at the heart of the Philippines’ case.

But neither the government nor Chinese scholars have offered much flesh to this argument.  The closest statement I’ve seen was Judge Xue Hanqin’s impromptu remarks at the Asian Society of International Law conference last fall and a very brief Global Times essay.. But all that has now changed due to a book chapter  released by Professor Stefan Talmon of the University of Bonn.  From his abstract:

The chapter examines whether the Tribunal has jurisdiction to hear the case, whether the claims brought by the Philippines are admissible and whether there are any other objections which the tribunal will have to decide as a preliminary matter. It aims to offer a (not the) Chinese perspective on some of the issues to be decided by the Tribunal. The chapter is to serve as a kind of amicus curiae brief advancing possible legal arguments on behalf of the absent respondent. It shows that there are insurmountable preliminary objections to the Tribunal deciding the case on the merits and that the Tribunal would be well advised to refer the dispute back to the parties in order for them to reach a negotiated settlement.

I’ve only taken a quick look at Prof. Talmon’s pretty comprehensive discussion, and it really does read like an “amicus brief” for China on the question of jurisdiction.  I will have to consider more carefully Prof. Talmon’s claim that the 9-Dash Line claim can fit into the “historic waters” exception to jurisdiction, but overall it seems like a very careful and persuasive treatment.

For the First Time, U.S. Says China’s South China Sea Nine Dash Line is Inconsistent with International Law

by Julian Ku

As Jeffrey Bader of Brookings notes, the U.S. government has, for the first time, publicly rejected the legality of China’s “Nine Dash Line” claim in the South China Sea (for a little background on the unusual Nine Dash Line, see an earlier post here). This is a semi-big deal as it shows how the US is going to use international law as a sword to challenge China’s actions in this region.

During testimony before Congress, U.S. Assistant Secretary of State for East Asian and Pacific Affairs Daniel Russel stated:

Under international law, maritime claims in the South China Sea must be derived from land features. Any use of the ‘nine-dash line’ by China to claim maritime rights not based on claimed land features would be inconsistent with international law. The international community would welcome China to clarify or adjust its nine-dash line claim to bring it in accordance with the international law of the sea.

It is actually surprising that the U.S. government has never actually publicly stated this argument before, since the Russel statement fits comfortably within the U.S. government’s long-standing positions on the nature of maritime territorial claims.  And China could not have been unaware of US views on its 9-dash-line claim. But the U.S. also likes to repeat that it takes no position on any sovereignty disputes, and since the Nine Dash Line is sort of a sovereignty claim, it has always been a little unclear whether the US was neutral on the Nine-Dash Line as well.

Russel’s statement ends this ambiguity, and also offers more explanation on how the US “neutrality” in sovereignty disputes does not mean that it has no view on how those disputes would be resolved.

I think it is imperative that we be clear about what we mean when the United States says that we take no position on competing claims to sovereignty over disputed land features in the East China and South China Seas. First of all, we do take a strong position with regard to behavior in connection with any claims: we firmly oppose the use of intimidation, coercion or force to assert a territorial claim. Second, we do take a strong position that maritime claims must accord with customary international law.

Again, I can’t imagine this is a new US government position, but it is useful to make it clear publicly.

By tying itself to customary international law, the U.S. is challenging China to try to fit its Nine Dash Line into the legal framework created by the UN Convention on the Law of the Sea.  Even some clarification from China as to the legal basis for its Nine Dash Line would be helpful, since it would shift the burden on China to explain its legal position.

Moreover, the US government is also offering a legal roadmap for other countries that are not claimants in the region. It is hardly a controversial legal position, and should be fairly easy for the EU, Canada, or Australia to adopt (assuming they don’t mind tweaking China).

Having wedded itself to international law, the US will now have to see whether China will start making non-legal claims or even noises about withdrawing from UNCLOS.  The law definitely is not on China’s side here, but that doesn’t mean that China is going to back down in the SCS.

Registration Deadline for This Year’s Joint ILA/ASIL Annual Meeting

by Julian Ku

[I am passing along this reminder of the upcoming registration deadline on behalf of ILA President Ruth Wedgwood since many of our readers are likely to attend this meeting.]

Register by February 7, 2014 to snap up the advantageous “Early-Bird Rate”– saving $160 over the walk-up rate– for the historic joint meeting between the 150-year-old global International Law Association and the American Society of International Law, running April 7-12, 2014.  The festivities will take place at the International Trade Center, next to the Washington Mall, during the height of Washington’s lovely Cherry Blossom Season.   Family members will enjoy the trip too, since the Trade Center is  close to all the best tourist stops in the nation’s capital, including the National Gallery, the Air and Space Museum, the Lincoln Memorial, the Washington Monument, the Spy Museum, the Kennedy Center and the list goes on.  Incredible program of public and private international law debates is described at  www.ila2014.org  or www.asil.org/annualmeeting.  Adjacent J.W. Marriott Hotel at 1331 Pennsylvania Avenue has conference room rates that are well below market for Cherry Blossom Time.  Notables including judges of the International Court of Justice, the International War Crimes Tribunals, and Supreme Courts around the world will be at the ILA-ASIL Joint Meeting to engage in our robust debates.

So How’s the Media Doing on Amanda Knox Reporting? Much Better Once They Started Quoting Me

by Julian Ku

Last March, I took the world media (and Alan Dershowitz) to task for some pretty poor reporting on the extradition issues raised in the Amanda Knox case.  Based on the reporting from yesterday’s conviction (again) of Amanda Knox in an Italian appeals court in Florence, I’m glad to report that the news coverage of the extradition issue (as well as Dershowitz’s analysis of it) has improved a great deal. I’ll admit I’ve been co-opted by the media a little, since I have given quotes to several publications about the case (click here for obnoxious self promotion).

What bothered me about the reporting last year was the insistence by news outlets and even several legal commentators that Amanda Knox was facing double jeopardy because she was facing a conviction for the same crime for which she was previously acquitted (see this quote here from CNN’s legal analyst Sonny Hostin as an example of this confusion).   There are three problems with this argument:

1) The US Italy Extradition Treaty does not actually bar extradition for double jeopardy in the U.S. Constitutional sense. All it does is bar extradition if the person being extradited has already been charged for the same crime in the state doing the extraditing.  For instance, the treaty would bar extradition to Italy for Knox only if the U.S. had prosecuted her for the Kerchner* murder.  Judge Friendly’s discussion in the 1980 Sindona v. Grant case of a similar provision in an earlier US-Italy Extradition treaty focuses solely on whether the US charges were the same as the Italian charges.  See also Matter of Extradition of Sidali (1995) which interpreted an identical provision of the US-Turkey extradition treaty.

2) The US Constitution’s double jeopardy bar does not apply to prosecutions by the Italian government (or any foreign government).  This seems pretty unobjectionable as a matter of common sense, but many commentators keep talking about the Fifth Amendment as if it constrained Italy somehow.  For obvious reasons, the fact that the Italian trial does not conform in every respect to US constitutionally-required criminal procedure can’t be a bar to extradition because that would pretty much bar every extradition from the U.S.  The U.S. Supreme Court decision in US v. Balsys seems to have settled this question with respect to the Fifth Amendment self-incrimination rule, and it should apply to double jeopardy as well.

3) In any event, the conviction, acquittal, and then conviction again is almost certainly not double jeopardy anyways.  Knox was convicted in the first instance, than that conviction was thrown out on appeal.  That appellate proceeding (unlike a US proceeding) actually re-opened all of the facts and is essentially a new trial.  But it is still an appellate proceeding and in the US we would not treat an appellate proceeding that reversed a conviction as an acquittal for purposes of double jeopardy.  Moreover, it would essentially punish the Italian legal system for giving defendants extraordinary rights of appeal and tons more due process than they would get in the U.S.  If Knox had been convicted in the U.S, she could not have re-opened all of the evidence the way she did in Italy, and probably would have had a harder time getting her original conviction overturned.  So it seems crazy to call “unfair” a legal system which actually gave Knox a completely new chance to challenge her conviction.

Most media coverage seems to get these points (sort of).  I think they have done so because folks like Alan Dershowitz have finally read the treaty and done a little research (he now agrees with this analysis of the treaty above, more or less), and because the magic of the Internet allowed my blog post from last March to be found by reporters doing their Google searches.  So kudos to the Opinio Juris!    Improving media coverage of international legal issues since 2005!

One final note:  the only way this “double jeopardy” argument matters is if this gets to the US Secretary of State, who has final say on whether to extradite.  He might conclude that the trial here was so unfair (because it dragged out so long) that he will exercise his discretion not to extradite.  But this would be a political judgment, not a legal one, more akin to giving Knox a form of clemency than an acquittal.  I would be surprised if the State Department refuses to extradite Knox, given the strong interest the U.S. has in convincing foreign states to cooperate on extradition.  But Knox appears to have lots of popular support in the US. This may matter (even if it shouldn’t).

 *The original post incorrectly called the murder victim “Kirchner”.

U.S. Funds Effort to Gather Evidence For Syrian War Crimes Prosecutions That Will Probably Never Happen

by Julian Ku

Jess Bravin has an interesting report out in Thursday’s WSJ (subscrip. req’d)  detailing U.S., UK, and EU support (and funding) for a team of investigators to gather evidence of war crimes by Syrian government and military officials.

For nearly two years, dozens of investigators funded by the U.S. and its allies have been infiltrating Syria to collect evidence of suspected war crimes, sometimes risking their lives to back up promises by Western leaders to hold the guilty accountable.

As Bravin notes, the U.S. government has issued several high profile statements warning that any war crimes committed in Syria would be punished and Syrian government officials and army commanders would be held accountable.  Gathering this evidence fulfills part of this pledge to hold war criminals accountable.

What is sad about this exercise, however, is that there is little evidence that the threat of eventual criminal prosecution (issued back in 2011 by Hillary Clinton) has deterred the commission of serious atrocities by the Syrian government.  The WSJ report suggest that the evidence being gathered is growing at depressingly fast rates (and this NYT report adds more horrific detail). Frankly, the threat of prosecution is either not credible, or less threatening to the Syrian army and government leaders than defeat in this increasingly desperate civil war.  (Professor Jide Nzelibe and I predicted this pattern of behavior by desperate dictators long ago in this article).

Moreover, as Bravin also notes, several diplomats have suggested that amnesty for some or all of the Syrian government’s leaders would have to be considered for any successful peace deal.  Since the U.S. military option to remove the current government is off the table, and since the civil war seems headed for a stalemate, it would be irresponsible of the U.S. to demand full accountability for war crimes as a condition of any peace deal.  To do so might just lead to more atrocities, and still no punishment.

Which means that there is not much chance that the evidence gathered by these brave and dedicated individuals described by Bravin will ever be used in a criminal prosecution.  Sure, it will be leverage during peace talks, but not much more than that.

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

by Julian Ku

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.