Kiobel and the Law of Nations

Since 1789, the Alien Tort Statute (ATS) has provided federal court jurisdiction for tort suits by aliens for violations of the law of nations. Though debate certainly exists about the method by which ATS-appropriate torts are identified, the Supreme Court has acknowledged that the substantive content of ATS causes of action is derived from the law of nations. In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court justices addressed not the substance of ATS cases but the reach of that statute. At least at the time of the Judiciary Act of 1789, the law of nations included not only substantive international law but also international jurisdictional law. Like the substantive law of nations that provides ATS causes of action, international jurisdictional law is an important part of the international legal order. And yet, in a decision about the reach of law-of-nations tort law — and in the search for post-Kiobel alternatives — too little attention has been paid to the jurisdictional branch of the law of nations. This essay briefly summarizes an approach to law-of-nations torts that tracks international jurisdictional law, which is broader than current ATS doctrine in some respects and narrower in others