Erga Omnes

Last week, the U.S. Supreme Court surprised onlookers when it ordered the parties in the Kiobel Case (see my post below) to rebrief the case for rehearing.  Most importantly, it shifted the question before it, from corporate liability to the possibilities of universal jurisdiction—revisiting the extra-territorial reach of the Alien Tort Claims Act (1789), used to prosecute crimes committed abroad in U.S. courts:

Whether and under what circumstances the Alien Tort Statute … allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.

Universal jurisdiction is politically threatening, depending on the nationalities at stake and the status of foreign relations.  But when powerful corporations are thrown into the mix, themselves embroiled in human rights conflicts, the stakes are potentially explosive.  Was the Supreme Court dodging the issue of corporate responsibility for human rights crimes, returning to first principles, or both? Having punted the issue, corporate human rights crimes committed abroad are off the U.S. Court’s agenda for now.