Suing Americans for human rights torts overseas: the Supreme Court leaves the door open.

• Author: Cassel, Doug

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. Kiobel was a suit by foreign plaintiffs, against foreign defendants, for foreign conduct. (19) In that "foreign-cubed" case, (20) the limited American jurisdictional interests at stake--mainly to afford redress for heinous international torts (21)--were not enough to persuade the majority to overcome its presumption against extraterritorial application. Nor were they enough to convince the four Justices concurring in the result that there were sufficient "distinct American interests" to justify ATS jurisdiction in that case. (22)

But the calculus is different when the alleged overseas tortfeasors are Americans. When Americans violate human rights in other countries, the jurisdiction of U.S. courts is supported, not only by the U.S. foreign policy commitment to human rights, (23) but also by other factors. They include the internationally recognized right of victims of gross violations of human rights to effective remedies, (24) the international law principle of a state's jurisdiction over its own nationals acting abroad, (25) and the nation's internationally recognized interest (26)--and indeed international best practice (27)--to police its own wrongdoers. Collectively, these interests generally combine in cases against Americans to outweigh any presumption against applying statutes extraterritorially. In the terms used by the concurring Justices, suits against Americans possess the requisite "distinct American interests" to support ATS jurisdiction. (28)

But not in every case. In some cases a foreign state may have a stronger claim to jurisdiction. In other cases, judicial efficiency or foreign policy concerns may counsel in favor of foreign rather than U.S. jurisdiction. The four concurring Justices were thus correct to signal that ATS jurisdiction may be subject on a case-by-case basis to doctrines of exhaustion of foreign remedies, forum non conveniens, comity toward other sovereign nations, and due deference to the foreign policy views of the executive branch. (29)

But there are limits to the limits: they must not in effect defeat the very jurisdiction whose importance the four concurring Justices rightly recognize. For example, exhaustion of foreign remedies should not necessarily be required when American defendants are sued exclusively or as principals, and should in any event be subject to the exceptions established by international law. (30)

Part I of this Article shows that both international and domestic law recognize the right of states to exercise extraterritorial jurisdiction over cases against their nationals for serious misconduct abroad. Parts II through V then consider whether the ATS should be interpreted to exercise this jurisdictional authority. Part II summarizes the contrasting opinions in Kiobel and their implications for ATS claims against Americans for torts committed abroad. Part III shows that, regardless of whether one takes an "international law" or "domestic law" approach to interpreting the reach of the statute, the ATS authorizes claims against Americans for torts committed on foreign shores. Part IV outlines the differing foreign policy interests underlying the Justices' divergent views on the territorial reach of the ATS. It concludes that the interests in favor of extraterritorial jurisdiction over ATS suits against Americans generally prevail. Part V addresses case-by-case limits on such suits.

This Article does not revisit the issue on which review was originally granted in Kiobel--whether corporations may ever be sued under the ATS. (31) 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. (32) The majority of federal courts of appeals addressing the issue agree that corporations may be sued. (33) 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. (34)

1. BOTH INTERNATIONAL AND DOMESTIC LAW RECOGNIZE THAT STATES MAY EXERCISE JURISDICTION OVER THE SERIOUS MISCONDUCT OF THEIR NATIONALS ABROAD

   Both international and domestic law recognize the right of states, including the United States, to exercise jurisdiction, and to recognize causes of action, in cases against their nationals for serious misconduct abroad.

   So long as the exercise is reasonable, (35) there is no dispute that states may choose to exercise such jurisdiction and to recognize such causes of action. (36) The Restatement (Third) of the Foreign Relations Law of the United States recognizes that a nation may "prescribe law with respect to ... the activities, interests, status, or relations of its nationals outside ... its territory." (37) A leading international law text agrees that "States have an undisputed right" to apply their laws to their own citizens, "wherever they may be." (38)

   In Kiobel, the British and Dutch governments--which as amici curiae opposed the exercise of extraterritorial ATS jurisdiction over British and Dutch companies (39)--nonetheless agreed that "active personality jurisdiction," by which the United States could apply the ATS extraterritorially to Americans, "is very clearly asserted (and accepted) in State practice, and is well established in international law." (40) Calling the same principle by a different name, the European Commission termed the "nationality principle" an "uncontroversial basis for jurisdiction under international law." (41)

   The Supreme Court of the United States long ago reached a consistent conclusion. In Blackmer v. United States, (42) involving a witness subpoena issued by the Supreme Court of the District of Columbia to an American...