The Three C's of Jurisdiction Over Human Rights Claims in U.S. Courts
113 Mich. L. Rev. First Impressions 67 (2015)
9 Pages Posted: 12 May 2015 Last revised: 19 Aug 2015
Date Written: April 1, 2015
Debates about the proper role of U.S. courts in transnational human rights cases often focus on whether or not “universal civil jurisdiction” exists over the most egregious forms of internationally wrongful conduct. This Essay urges courts and scholars to resist this all-or-nothing approach. Instead, we should conceptualize the transnational enforcement of human rights norms as part of an emerging regime of “bounded universality” delineated by three basic principles: consensus on conduct, connection to the forum, and complementarity (“the three c’s”). Descriptively, viewing human rights litigation through the lens of bounded universality reveals that the current role of U.S. courts is both narrower than some advocates might like and broader than some critics allege. Normatively, using the three c’s as a touchstone for the assertion of U.S. jurisdiction over human rights claims arising in other countries can help strike a balance between concerns about U.S. legal imperialism, on the one hand, and providing a safe haven for human rights violators, on the other. This Essay illustrates how the three c’s have been, and can be, invoked to delineate this middle ground.
Keywords: universal jurisdiction, transnational litigation, Alien Tort Statute, Kiobel, Morrison, extraterritoriality
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