Come together?: civil and criminal jurisdiction in Kiobel from an international law perspectiveBy Robert Cryer
In the Kiobel case a number of issues of international law arose, albeit almost sub silentio. International law is conspicuously absent from the majority opinion authored by Chief Justice Roberts. In terms of express reference to international law the decision, as a whole, is probably a disappointment to international lawyers, and perhaps also to the many amicus curiae. That said, Justice Breyer (writing for four members of the Court), did in the end look at international law, and investigated whether universal (criminal) jurisdiction existed over the relevant conduct. The reason for this, in Justice Breyer’s opinion, was that there was a strong US national interest in not being seen as a safe haven for those who have undertaken conduct that is sufficiently condemned that universal criminal jurisdiction exists over it. This, for Breyer, had implications for both the substantive and procedural questions relating to civil jurisdiction. The extent to which Breyer’s opinion is informed by, supported by and consistent with international law will be investigated. This will also encompass a discussion of the relevance of criminal jurisdiction as to the extent of civil jurisdiction. The piece concludes that with Breyer’s opinion, at least, a national interest in upholding international law can be seen, and one that is not inconsistent with the international law on jurisdiction.