The irrationality of universal civil jurisdiction.

Author:Wallach, David
  1. INTRODUCTION II. JURISDICTION OF THE COURTS OF THE UNITED STATES III. UNIVERSAL JURISDICTION IN INTERNATIONAL LAW A. Limits on the Power of States to Exercise Prescriptive Jurisdiction in Foreign Territory B. Universal Criminal Jurisdiction and the Enforcement Vacuum for Certain Transnational Crimes IV. UNIVERSAL CIVIL JURISDICTION IN THE UNITED STATES: THE ALIEN TORT STATUTE AND THE TORTURE VICTIMS PROTECTION ACT A. The Emergence of Universal Civil Jurisdiction in the Alien Tort Statute B. The End of the Experiment with Universal Civil Jurisdiction under the ATS V. IS THERE ANY DEFENSIBLE BASIS FOR UNIVERSAL CIVIL JURISDICTION? A. Universal Criminal Jurisdiction Does Not Provide a Basis for Universal Civil Jurisdiction B. Universal Civil Jurisdiction Is Not Necessary to Override Foreign Laws Condoning International Law Violations C. Universal Civil Jurisdiction Also Cannot Be Grounded on a Perceived Need to Promote Uniformity or Capture the Gravity of the Alleged Violations VI. CONCLUSION I. INTRODUCTION

    For the past thirty years, U.S. federal courts have conducted an experiment in universal civil jurisdiction. Under the aegis of the Alien Tort Statute (ATS), federal courts created federal causes of action to provide remedies for alleged violations of international law occurring anywhere in the world. (1) In doing so, these courts exercised a type of universal civil jurisdiction previously unknown to the law of nations by applying federal law to claims arising abroad with no significant connection to the United States other than the fortuity of suit having been filed here. On April 17, 2013, the Supreme Court brought an end to that era, holding in Kiobel v. Royal Dutch Petroleum Co. that the ATS does not apply extraterritorially. (2)

    Now that battles over the meaning and interpretation of the ATS have subsided for the most part, it is time to consider what federal courts accomplished by exercising universal civil jurisdiction under the ATS. Doing so will help resolve whether Congress should legislatively overrule Kiobel and restore the broad interpretation of the ATS as a universal civil jurisdiction statute. It also will help answer whether other countries should follow the example set by the last thirty years of experimentation with universal civil jurisdiction by lower federal courts and adopt their own universal civil jurisdiction laws.

    International law is essentially silent on universal civil jurisdiction. Some argue that this means that States (3) are permitted to exercise universal civil jurisdiction. Typically, proponents of universal civil jurisdiction argue that it should be exercised whenever international law would permit universal criminal jurisdiction. This Article concludes that such an approach is mistaken.

    Universal criminal jurisdiction developed to address an enforcement gap that simply does not exist in the civil sphere. This gap exists because a court will not apply the criminal law of a foreign jurisdiction. If a person takes refuge in the United States after committing a crime abroad, the United States may be able to extradite the offender. However, if the United States is unable or willing to extradite, then the offense must go unpunished. Thus, an enforcement gap sometimes exists where a suspect cannot be tried in the jurisdiction in which he resides and cannot be extradited to a jurisdiction in which trial is possible. Universal criminal jurisdiction closes this gap for certain crimes.

    No similar enforcement gap exists in the civil sphere. Courts generally will exercise civil jurisdiction over claims arising anywhere in the world as long as the defendant is present in, or has sufficient connections with, the forum. There are limits on the extraterritorial application of state and federal law, but those limits do not constrain the civil jurisdiction of U.S. courts. When an action arises based on conduct occurring abroad, the court will perform a choice of law analysis to select the jurisdiction whose law should apply, and it will apply that law to adjudicate the case. The question for universal civil jurisdiction is not whether there is conduct that is so repugnant or threatening to the international order that its perpetrators must be brought to justice wherever they are found; it is whether there is any conduct that, by its nature, justifies a State in disregarding the substantive law of the States connected to the conduct and applying its own law, regardless of its lack of any such connections. When properly understood in this manner, it is clear that universal civil jurisdiction is rarely, if ever, warranted.

    This Article proceeds as follows: Part II provides a brief overview of the basic jurisdictional concepts and rules of U.S. courts. It shows that, in criminal law, adjudicative, and prescriptive jurisdiction are fused, but in civil law they are distinct. It also shows that, since the founding of the country, U.S. courts have exercised adjudicative jurisdiction over torts regardless of where they occur. Part III recounts the emergence of universal criminal jurisdiction in international law and the policies underlying this unusual doctrine. Part IV describes U.S. courts' creation of a new universal civil jurisdiction under the auspices of the ATS, with particular attention to the justifications that courts have offered for fashioning this unprecedented form of jurisdiction. Part V shows that those justifications make little sense when universal civil jurisdiction is properly understood not as an answer to the problem of impunity, but as an exception to normal choice of law rules. Part VI concludes.


    "Jurisdiction" is a notoriously slippery word, often used to denote several different concepts. (4) To grasp the meaning of universal jurisdiction in its civil and criminal forms, it is necessary to distinguish "adjudicative jurisdiction" from "prescriptive jurisdiction." As one court put it, adjudicative jurisdiction (also sometimes referred to as "judicial jurisdiction") "concerns the power of a state to resolve a particular dispute through its court system," while prescriptive jurisdiction (also called "legislative jurisdiction") "involves the authority of a state to make its law applicable to persons or activities." (5)

    In the U.S. legal system, prescriptive and adjudicative jurisdiction are fused in criminal law. U.S. federal courts will not exercise jurisdiction over crimes committed in violation of the laws of a foreign country; they will adjudicate only crimes in violation of U.S. criminal legislation. (6) Nor will the states of the United States prosecute violations of the criminal laws of their sister states. (7) The state and federal governments can extradite a suspected criminal to a country (or another state) capable of prosecuting him or her. However, where no extradition request has been made, or where extradition cannot be accomplished, a crime committed in violation of foreign law must go unpunished.

    States also generally cannot apply their own criminal laws to conduct occurring extraterritorially. (8) Although the federal government can create extraterritorially applicable criminal law, it generally does not do so (though numerous exceptions exist). (9) Moreover, even the federal government may be constitutionally constrained from applying its law extraterritorially where a sufficient nexus does not exist between the conduct proscribed and the United States. (10)

    U.S. courts exercise civil jurisdiction far more broadly. It is deeply ingrained in our legal system and tradition that state and federal courts can provide a forum for civil claims arising out of conduct within the United States or abroad. (11) To be sure, federal courts possess only limited civil jurisdiction. They have subject matter jurisdiction (12) only to the extent expressly authorized by the Constitution and statutes of the United States. (13) The federal question statute gives federal district courts subject matter jurisdiction over all civil actions arising under federal law. (14) The diversity statute gives federal district courts subject matter jurisdiction over civil actions regardless of the law under which they arise, provided that the amount in controversy exceeds $75,000 and the parties are "diverse." (15) Thus, where diversity jurisdiction exists, a federal court can hear a civil claim regardless of whether it arose entirely overseas. However, diversity jurisdiction does not extend to actions between two citizens of a foreign state or states. (16) Unless an action arises under federal law or some other basis exists for federal jurisdiction (such as admiralty), (17) one foreigner cannot sue another foreigner in U.S. federal court.

    But U.S. state courts are courts of general civil jurisdiction. (18) They have "authority to hear all claims against a defendant ... without any showing that a connection exists between the claims and the forum state." (19) The only generally applicable limit on the adjudicative jurisdiction of state courts is the requirement that they must have personal jurisdiction over the defendant. (20) Where personal jurisdiction exists, however, state courts can hear civil claims arising from conduct in other states or foreign countries, even if the controversy involves a resident of the forum and a foreigner, or two foreigners. (21)

    That U.S. courts will provide a forum for civil claims arising abroad does not mean they will apply U.S. law to those claims. On the contrary, the Constitution limits the power of states (22) and of the federal government (23) to apply their laws to conduct occurring outside their borders. Courts perform a choice of law analysis and typically apply the law of the jurisdiction that has the most contacts with the underlying events or the greatest interest in regulating them. (24) For tort claims, such an analysis will require application of the law of the jurisdiction in which...

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