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89 Notre Dame L. Rev. 1773 (2014)


If American citizens or corporations commit gross violations of human rights against foreign victims on foreign shores, can the victims sue the Americans for damages in United States federal courts? Until recently the answer was clearly yes. However, following the diverse opinions in the Supreme Court’s 2013 ruling in Kiobel v. Royal Dutch Petroleum Co., the question has divided lower courts to date.

This Article argues that, as a matter of both domestic and international law, and under both the majority and minority rationales in Kiobel, federal courts can and should hear tort suits against American nationals for human rights violations they commit against foreign victims in foreign countries.

This Article does not revisit the issue on which review was originally granted in Kiobel—whether corporations may ever be sued under the ATS. All nine Justices decided the case instead on the issue of extraterritoriality; none expressly opined on whether corporations may be sued. This author has argued elsewhere that corporations are proper defendants in ATS suits. The majority of federal courts of appeals addressing the issue agree that corporations may be sued. Rather than reargue the point here, this Article simply assumes that corporations may be sued. But even if the Supreme Court were some day to rule that corporations may not be sued, the arguments in favor of ATS jurisdiction over suits against American nationals for overseas human rights torts would still apply to suits against individual Americans, such as corporate executives.

ATS jurisdiction generally should be exercised over such claims only when reasonable. The relevant balance must take into account not only the interests of the United States and foreign states, but also the interests of the victims whose human rights our nation espouses. These three sets of interests do not always weigh in the same direction. How best to accommodate them can be assessed only on a case-by-case basis. Categorical approaches—either barring or allowing all claims against our nationals for human rights torts abroad—are bound to shortchange one or the other set of important interests. Allowing no such claims would betray our profound national commitment to human rights accountability worldwide, whereas allowing all of them would in some cases offend legitimate sovereignty interests of other nations. The best way forward, consistent with international law and U.S. foreign policy interests, is to allow ATS claims against Americans for human rights violations committed abroad, subject to a case-by-case assessment of the relevant limits on such cases. Judicial decisions on whether to allow such claims must strive to be respectful of both human rights and the legitimate interests of foreign rule-of-law states.



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