Document Type

Article

Publication Date

2013

Abstract

The technologies of the present era mean that injuries have become more massive in dimension. Mass torts affect greater numbers of people and larger geographical areas. Consequently, they can cross borders, affecting the populations of multiple countries. One of the two mechanisms in tort law for remedying mass catastrophes. restricted to cases involving jus cogens violations (namely, violations of human rights so grave as to be against international customary law, or the "law of nations"), is universal jurisdiction pursuant to the Alien Tort Statute (ATS).

Despite the distinctive official restriction of universal jurisdiction to the criminal law domain in civilian nations, universal and extraterritorial ATS civil jurisdiction is not significantly distinctive from the criminal-law universal and extraterritorial jurisdiction that has become part of international customary law for jus cogens violations. This functional equivalence has been obscured because the identical official categories of criminal and non-criminal law exist in both legal orders, such that there is a natural, automatic tendency to assume in both common law and civil law States that both systems categorize the 'criminal' and the 'civil' in fundamentally the same way. In fact, as discussed below, the most substantively significant aspects of the civilian criminal trial are reproduced by the U.S. tort trial, and vice versa. Thus, ATS universal jurisdiction would place the United States within the community of nations; it would not isolate the United States from that community, and the extraterritorial effects of the statute similarly would be akin to those of criminal law universal jurisdiction in civilian nations.

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