Vanderbilt Journal of Transnational Law


John M. Rogers

First Page



Does any argument favor a broad interpretation of the Alien Tort Statute? If I had to make such an agreement, I suppose I would try to cloud the difference between universal crimes and violations of international law. One way to do this would be to focus on those crimes that are also violations of the obligations of one state to another. For instance, an attack on a diplomat may be both a violation of international law (i.e., failure to prevent or punish the attack may result in international responsibility by the territorial state to the sending state) and a universal crime (i.e., a third state could try the perpetrator). The same argument could be made with respect to counterfeiting. Some states have asserted universal jurisdiction over the crime of counterfeiting,° although courts will, in most cases, classify the jurisdiction more accurately as protective. The Supreme Court has held, however, that the United States has the obligation to suppress counterfeiting of foreign currency in the United States. If so, one could say that the counterfeiter (a) committed an international crime, and (b) acted so as to result in a violation of the international obligations of the United States.

But this, again, is not to say that the existence of an international crime necessarily implies an individual action resulting in international law violations. There just happens to be overlap. Certainly crimes are not automatically violations of international law, unless perhaps states with a right to prosecute certain criminals necessarily also have a duty to prosecute such criminals. But there is no reason why this should be so. There is, for instance, no widely accepted obligation to prosecute pirates. Lauterpacht flatly states that the law of nations does not make it a duty" for every maritime state to punish all pirates," and the negotiators of the 1958 High Seas Convention rejected such a duty.

While there may be some overlap, international crimes are distinct from individual actions that result in international law violations. An interpretation of the Alien Tort Statute that would result in United States court determinations of all international obligations of foreign states is impossibly broad. Trying to limit the statute to "crimes" is mixing apples and oranges. A meaningful jurisdictional interpretation of the Alien Tort Statute is the logical alternative.