Opinio Juris

Last week State Department Legal Adviser John Bellinger delivered an important speech at Vanderbilt Law School on Alien Tort Statute litigation. The speech was a fascinating analysis of the future of ATS litigation, particularly its costs and benefits. To my knowledge, the speech is the first comprehensive statement ever by a senior Administration official, Republican or Democratic, about the legal and policy issues posed by ATS litigation.

Bellinger starts with a nice summary of the significant legal questions that remain unanswered since Sosa:

This continued litigation under the ATS reflects fundamental problems with how lower courts have approached these suits. These problems center on five key issues: First, whether the ATS applies extraterritorially – that is, whether a U.S. court can properly apply U.S. federal common law under the ATS to conduct that occurred entirely in the territory of a foreign State. Second, even if such a cause of action could properly be recognized, whether exhaustion of adequate and available local remedies in that foreign country should be a prerequisite to bringing an ATS suit. Third, whether corporations or other private entities may be held liable under the ATS for aiding and abetting human rights abuses perpetrated by foreign governments. A fourth issue is how to apply Sosa’s requirement that an international-law norm be sufficiently accepted and specific. And fifth, in what circumstances should courts dismiss suits based on what Sosa referred to as “case-specific deference to the political branches”?

Bellinger then highlights the costs and benefits of ATS litigation. The three principal benefits of ATS litigation he outlines are: (1) promoting accountability and providing a public voice to victims; (2) raising public and political awareness of human rights abuses; and (3) advancing U.S. participation in the development of customary international law. But these benefits, he asserts, are not legal arguments, and may not be as great as they appear.

As for the costs, Bellinger identifies three: (1) ineffective relief in most cases; (2) “diplomatic costs” and the (3) “lack of democratic checks and accountability.” I think the diplomatic costs of ATS litigation are particularly important and real, and rarely included in the calculus of whether to allow ATS litigation to go forward. As Bellinger notes, the United States is perceived by other countries to be a “rogue actor” by encouraging international civil litigation against other countries but resisting efforts to hold the United States criminally responsible before international tribunals.

We are perceived, accurately, as having in effect established an International Civil Court – a court with jurisdiction to decide cases brought by foreigners arising anywhere in the world, by the light only of its own divination of universal law, and through the extraterritorial application of U.S. law concerning rights and remedies. By itself, this can be grating enough to foreign governments. But it is especially so when taken together with both the fact that the U.S. often argues vigorously against the assertion by foreign courts of universal jurisdiction to hear cases involving U.S. officials, and the fact that the U.S. has declined to join the International Criminal Court because of concerns about that tribunal’s jurisdiction.

I think that argument of diplomatic costs has a tremendous amount of force. Of course, reasonable people may disagree as to whether that means we should curtail ATS litigation in the United States or welcome the possibility of international criminal litigation elsewhere against United States actors. The status quo, however, does appear duplicitous and understandably is perceived as such by other countries.

The absence of democratic accountability is another important cost of ATS litigation, and one that highlights the potential disconnect between Executive branch interests and the victims’ interests.

The Executive Branch has real interests in ensuring that as a matter of policy, ATS litigation does not interfere with its conduct of foreign relations. I have already noted foreign governments’ concerns about the scope of U.S. court jurisdiction under the ATS. In addition, recent ATS suits have been used by litigants to duplicate, replace, or proceed on top of the U.S. government’s systemic efforts to reform foreign government practices or help end foreign conflicts. Often, these suits are brought as class actions for all aliens injured by the challenged conduct, effectively asking the U.S. courts to serve as administrator of an international claims program for foreign nationals.

The solution, Bellinger suggests, is either for courts to exercise more restraint consistent with Sosa, or for Congress to introduce legislation that curtails ATS litigation in a manner akin to the Torture Victim Protection Act (which includes a statute of limitations and defined causes of action) or the Flatow Amendment to the FSIA (which allows for greater Executive branch involvement in limiting the scope of litigation).

The take away message is that Sosa’s attempt to rein in ATS litigation has largely failed and that if courts do not more carefully monitor this litigation it will continue to cause foreign relations problems.

It is an important message. I think it would be quite valuable for a scholar to carefully examine the various statements of interest and amicus briefs filed by the United States in over a dozen ATS cases, combined with the concerns expressed in Bellinger's speech to illuminate the foreign affairs concerns at stake in ATS litigation.

In sum, Bellinger appears to be echoing some of the concerns raised by the Supreme Court in Sosa. As the Court put it in that case, "Since many attempts by federal courts to craft remedies for the violation of new norms of international law would raise risks of adverse foreign policy consequences, they should be undertaken, if at all, with great caution." Then again in a footnote the Court emphasized that a "possible limitation" to ATS litigation "is a policy of case-specific deference to the political branches.... In such cases [as the apartheid litigation], there is a strong argument that federal courts should give serious weight to the Executive Branch’s view of the case’s impact on foreign policy." That foreign policy limit identified by the Court and now repeated by the State Department Legal Adviser has yet to be fully explored by the courts or scholars.