The Ninth Life of the Alien Torts Statute -- Kiobel and After

Abstract

This essay introduces the Journal's symposium on the US Supreme Court decision in Kiobel et al. v. Royal Dutch Shell et al. It reflects on the broader political and historical context of the Kiobel decision, and suggests that the underlying legal and political controversies concerning the Alien Torts Statute expose the fault lines of late twentieth century debates in the United States concerning the US's role in the world, and it relationship with international law. The essay also considers the multiple instrumental uses of historical claims about the jus gentium in the majority and minority judgments in Kiobel, and suggests that both opinions (and supporting scholarship) overlook an important dimension of the late eighteenth century understanding of the law of nations. Finally, the author concludes with the suggestion that a key result of Kiobel is a heightened insularity of US courts from direct engagement with international law, and reduced contribution of the US legal system to the fabrication of the international legal order through the interpretation and application of international law norms.