In the modern era, there is a growing sentiment that when the gravest human rights violations occur, the international community has a “responsibility to protect” the victims if the victims’ own government is unwilling or unable to do so. While much of the scholarship on the responsibility to protect focuses on the international community’s ability to engage in military intervention, the doctrine actually provides a menu of options that intervening States can employ to prevent serious abuses of human rights, including, notably for the purposes of this article, legal accountability in judicial fora. States thus have greater latitude than ever before to intervene in the sovereign affairs of other States when human rights violations occur. Yet, the “when” and “how” of justifying intervention in any form on the basis of human rights remains murky. In this article, I argue that the United States has inconsistently fulfilled its responsibility to protect, evoking this doctrine as a basis for intervention only when it has a national interest at stake, and that this approach to human rights protection is improperly extending to the judiciary.

Although critics have long accused the United States of American Exceptionalism – the idea that the United States is different from the rest of the world and unbound by the rules it promotes, the Supreme Court’s recent opinion in Kiobel v. Royal Dutch Petroleum Co. is striking evidence that this sentiment is creeping into a realm where politics should have no bearing: the judiciary. In Kiobel, the majority of the Court held that the presumption against extraterritoriality was applicable to the Alien Tort Statute (ATS), a statute that courts had formerly provided jurisdiction for civil suits seeking damages for human rights violations occurring abroad. The Court left open the possibility that claims could overcome the presumption if they “touch and concern the territory of the United States… with sufficient force.” While the majority opinion suggested the need for a strong U.S. connection, a concurring opinion, written by Justice Breyer and joined by Justices Sotomayor, Ginsburg, and Kagan, “interpret[ed] the statute as providing jurisdiction only where distinct American interests are at issue,” particularly when “the defendant's conduct substantially and adversely affects an important American national interest.” Given the inherent fuzziness of the “touch and concern” test, domestic courts may well look to this four-justice concurrence when determining whether human rights claims under the ATS are justiciable. At least one court already has.

In this article, I will trace the emergence of the United States’ nationalistic protection of human rights and examine the ramifications of the judicial adoption of this approach to the adjudication of human rights claims. I argue that not only would conditioning judicial human rights protection on national interest be antithetical to the underlying principles of human rights, but it raises concerns with respect to the political question doctrine. I further suggest that Congress should correct this unclear and potentially problematic test by adopting a standard for jurisdiction that would allow the United States to more consistently fulfill its obligations under the responsibility to protect. Specifically, Congress should adopt legislation that would allow U.S. courts to adjudicate human rights claims under the ATS when other States who might be in a better position to do so are unwilling or unable.