Erga Omnes

In gearing up for Kiobel v. Royal Dutch Petroleum at the U.S. Supreme Court this fall, debates are raging about the scope of the Alien Tort Statute.  Among key claims is the argument that universal jurisdiction doesn’t extend to secondary wrongdoers like corporations, charged with aiding and abetting.  (See, for example, Prof. Michael Ramsey’s thought-provoking post in a recent SCOTUS blog symposium.)

Powerful at first glance, the “aiding and abetting” defense collapses under its own weight.  First, for universal jurisdiction, the egregious nature of the violation trumps standard material connections to territory, i.e., the traditional bases of jurisdiction.  But it doesn’t work the other way around.  The wrongdoer’s standing can’t dictate (or limit) the scope of universal jurisdiction.  Complex legal arguments have been made to this effect, and it remains a fundamental starting point.

Second, and more broadly, the nature of the violation is precisely what extends legal responsibility beyond its traditional confines—trans-nationalizing who is liable and where justice can be pursued.  We’re talking about political violations—systematic, collective, and coercive.  Power differentials and governing authorities figure centrally.  This means that accountability is often restricted for survivors of abuse and their relatives.  Though rarely stated, the transnational aspect of universal jurisdiction doesn’t just reflect widespread moral disavowal of certain acts; it engenders a shared ethics of global accountability.

Put differently, universal jurisdiction is more accurately non-territorial than extra-territorial.  While tethering universal jurisdiction to territoriality is a domestic policy option, it isn’t one well supported in international law.  If states have limited universal jurisdiction, pursuing cases only where a direct link to the prosecuting state could be established, this has been a political exception more than legal necessity.

The ATS has long permitted foreigners to seek remedies in U.S. courts for violations committed abroad.  The rationale for universal jurisdiction has little to do with territory; it doesn’t really matter who committed the abuses or where they were committed.  It’s far simpler:  in an interconnected world, when powerful actors commit horrific acts, those most directly affected need a forum where they might pursue accountability.  Who will provide it?