Suing Americans for Human Rights Torts Overseas: The Supreme Court Leaves the Door Open

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INTRODUCTION

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., (1) the question has divided lower courts to date. (2) 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.

The statutory basis of both jurisdiction and the cause of action is the Alien Tort Statute (ATS). Originally passed in 1789, the ATS grants district courts "original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." (3)

The ATS essentially lay dormant for two centuries until resurrected in 1980 in Filartiga v. Pena-Irala, (4) when the Second Circuit ruled that a Paraguayan dissident could bring an ATS suit in U.S. courts against a Paraguayan police chief for official torture committed in Paraguay. Both plaintiff and defendant resided in the United States at the time the suit was filed. (5) Lower courts thereafter entertained numerous ATS suits for overseas human rights violations. (6)

Not until 2004 did the Supreme Court first pronounce on the ATS. In Sosa v. Alvarez-Machain, (7) the Court read the ATS as double-barreled--not only conferring jurisdiction, but also authorizing judicial recognition of common law causes of action for torts in violation of international law. The ATS is thus not a mere jurisdictional grant, useless absent further legislation creating a cause of action. Rather it also authorizes federal courts to recognize causes of action for violations of international law norms, so long as the norms are widely accepted and specifically defined. (8) The Sosa Court cited Filartiga in support of both the ATS authorization to recognize causes of action, (9) and the limits thereon. (10)

Sosa involved an alleged tort committed in Mexico by Mexicans against a Mexican citizen (albeit at the behest of the U.S. Drug Enforcement Agency). (11) Still, the Court did not then address whether ATS jurisdiction to recognize common law tort claims extends to torts committed outside the United States. Not until 2013 in Kiobel, a suit brought by Nigerian plaintiffs against British, Dutch, and Nigerian corporations for alleged torts in Nigeria, (12) did the Court pass on the extraterritorial reach of the ATS. Invoking a presumption against applying statutes extraterritorially, the five-member Kiobel majority ruled that the ATS does not generally allow federal courts to recognize causes of actions for torts committed in foreign countries. (13) However, the majority relied extensively on Sosa (14) (adjudicating an alleged tort in a foreign state) and was silent on Filartiga (also adjudicating a tort in a foreign state), without suggesting that either landmark case was wrongly decided.

Moreover, the Kiobel majority did not specifically address whether the ATS allows causes of action for torts committed overseas by American citizens or corporations. In contrast, four Justices, while concurring in the result in Kiobel (a suit against foreign corporations), expressly opined that the ATS confers jurisdiction, within limits, to recognize causes of action for torts committed abroad by American nationals, (15) possibly including corporations. (16)

In this author's view, the concurring Justices are correct in allowing ATS suits against Americans for foreign torts. (17) And contrary to narrow readings by some lower courts, (18) even the majority's rationale allows space for ATS causes of action for torts committed by Americans overseas. …