John Bellinger on ATS litigation and KA on opinio juris

John Bellinger, State Department Legal Advisor, made a very important speech at Vanderbilt Law School on Alien Tort Statute litigation. I am not a fan of the ATS, and believe moreover that Sosa did virtually nothing to rein it in - all it did was give a judge inclined to go forward a formal checklist for going forward, and a judge inclined not to go forward a formal checklist for not going forward. That’s a long discussion. (I see Roger Alford has a very useful, detailed post at Opinio Juris.)

However, even beyond the question of the ATS, there is something that I regard as an even larger - and more intractable problem, of which the ATS is only a part - the inability of the US government to give out consistent opinio juris and coordinate it through the various executive departments. In particular, there seems to be no mechanism by which State, Defense, and Justice can put themselves on the same page and consistently present the same position whether to foreign governments, international organizations, and courts.

I realize that as a professor, I don’t really understand how hard it is to make policy and act on it, let alone have it be coordinated with other departments of government. I also have a vague, outsider’s idea that different parts of the government probably think that there already is okay coordination and broadcasting of US views - despite perceptions of people like me that the US does nowhere near enough to plainly state it and declare it to be opinio juris. So it is without any idea at all of how government works on the inside that I suggest some kind of coordinating, uh, something to establish and publicize consistent opinio juris. The task the US faces is to assert in a systematic way its state practice as its view of international rules of law. It needs to do so in an environment that is increasingly hostile to the idea of state practice as establishing international law, but also an environment that, being increasingly judicialized, has difficulty recognizing - because of its own rhetorical methods - anything that does not involve written pronouncements of one kind or another.

The government has not understood this fundamental shift - that courts find it much easier to look at something like the ICRC’s not-so-good customary law treatise rather than facts of US state practice. In part this is because something like the customary law study is easy to use - it looks, to a US judge, like a Restatement, with a bunch of reasonable sounding rules, and a judge can simply find a rule, apply it and cite it. State practice is often not very reasonable or rational from the standpoint of how a judge might reasonably see things - state practice is political. Indeed I doubt that very many ATS courts even understand that state practice does constitute a source of international law in any real way - it is so alien their domestic sense that law is a rational and rationally established set of norms. So they look instead for materials that conform to their domestic law sense of what law is supposed to be and how it is established. The US government needs to learn how to put forth its views consistently, in support of its state practice, and in a way that puts it forth as opinio juris. For that, government needs to be on the same page and say so publicly.

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Let me make several observations regarding the ATS at the outset. The first is that ATS litigation continues largely unabated, despite the Supreme Court’s attempt in Sosa to rein it in. Second, the ATS has given rise to friction, sometimes considerable, in our relations with foreign governments, who understandably object to their officials, or their domestic corporations, being subjected to U.S. jurisdiction for activities taking place in foreign countries and having nothing to do with the United States. Third, the development of the scope of the ATS has largely been left to litigants and the courts, without formal involvement from Congress and largely contrary to the views of the Executive. This has been a problem, not least because many recent ATS suits have tended to implicate important aspects of U.S. foreign policy. In the end, there are good reasons for limits on the scope of the ATS – through courts exercising restraint, or if necessary, through legislation. We need to ensure the ATS does not complicate international efforts by the political branches to promote human rights abroad, a cause to which the United States is deeply committed.
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[T]he Court [in Sosa] identified a number of factors that counseled special “judicial caution” and a “restrained conception of the discretion a federal court should exercise in considering a new cause of action” under the ATS. Among other things, the Court recognized the “potential implications for the foreign relations of the United States” that “should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.” Accordingly, the Court stressed that devising new federal common law causes of action based on international law “should be undertaken, if at all, with great caution.” Justice Souter’s opinion summed up the situation: the door for ATS litigation was “still ajar subject to vigilant doorkeeping.”

Notwithstanding the Court’s directive for restraint, almost four years later, litigation has showed no signs of slowing down. Plaintiffs continue to push against the door the Court left “ajar,” arguing for expansive applications of customary international law. Among the suits courts have heard are a suit against an American company for selling Israel bulldozers under a U.S. military assistance program that were eventually used to demolish Palestinian homes; a suit against U.S. chemical companies that manufactured Agent Orange used by the U.S. military as a defoliant during the Vietnam War; a suit against two high-ranking government officials of the United Arab Emirates alleging involvement in abuses of underage camel jockeys; and a suit against a Canadian energy company for aiding and abetting human rights abuses by investing in Sudan. The Second and Ninth Circuits, in particular, have proceeded as before. One post-Sosa federal court has frankly conceived of its role as that of a “quasi international tribunal[ ],” dispensing an international law that “supersed[es] and suppl[ies] the deficiencies of national constitutions and laws.”[1]

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As it happens, I served as an expert defense witness in the Agent Orange litigation mentioned above. I was astonished in the hearing in front of Judge Weinstein that he referred at the beginning of the arguments to him sitting as a sort of international tribunal. The very young lawyer for the government plucked up his courage and told the judge that it was not an international tribunal but a district court of the United States under the laws and Constitution of the United States. Judge Weinstein took it all in good humor and rather admired the young man’s chutzpah. But it was obvious to me, watching, that Judge Weinstein was quite in love with the idea that he was a sitting international tribunal.

I would also add that although the Bellinger address focuses mostly on human rights issues as a foreign policy matter for the executive, the trend in ATS cases is actually more centrally about environmental and resource extraction issues, even if they are wrapped, for strategic post-Sosa reasons, into some version of human rights arguments. One important reason why ATS cases need new limitations is that US district courts are in effect creating a sort of US-centric “international law” that recognizes corporate and entity liability, and indeed civil liability, an international law of civil liability of corporations in environmental matters despite the absence of any treaty recognition of such. It is not merely US conservatives who have concerns about that - it is also international lawyers outside the US who are fully aware of the general refusal of the international order to establish either civil liability in international law or entity liability, and are also aware of the risks of creating different species of international law, one in US district courts, cross-citing each other endlessly to inflate a little jurisprudential, self-referential body of “international law,” and what others in the world do. I myself am not disturbed by the fragmentation of international law in this way, but I certainly would imagine that others might feel quite differently. But certainly in my world of the international law academy in the US, the ATS is more or less sacred ground, and virtually all the academic commentary little more - from my perspective - than an activist echo chamber.

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[F]oreign governments do not see the ATS as an instance of the United States constructively engaging with international law. Quite the opposite: we are regarded as something of a rogue actor. 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.

In letters to the State Department or in amicus filings in federal courts, foreign governments consistently argue that the assertion of U.S. court jurisdiction over cases that have little connection to the United States is inconsistent with customary international law principles and interferes with national sovereignty. Canada, for example – internationally, a strong promoter of human rights and accountability for human rights violations –strongly objected to a case in the Second Circuit against a Canadian energy company for allegedly aiding and abetting human rights abuses in Sudan. The U.K. and Australia – also leading human rights advocates – have similarly argued that the scope of ATS jurisdiction is inconsistent with principles of international law.

When you consider the Sudan case, or the Apartheid case, from other countries’ perspective – a good thing to do generally in international law and relations – there is considerable force to these criticisms. Imagine, for example, what the U.S. reaction would be if a Swiss court sought to adjudicate claims brought against U.S. government officials or businesses for Jim Crow-era racial restrictions, or – since (without a statute of limitations) ATS suits can reach far into the past – even for slavery. As much as we might denounce past injustices, most of us would probably take offense at the notion that a Swiss court could hear such a suit and decide it based on the court’s own articulation of international law. The United States, after all, has come to terms with and sought to remedy the effects of slavery and Jim Crow laws through domestic measures under Acts of Congress and state laws resting on a strong moral consensus of our people – and according to the principles, procedures, and norms of our legal system. From the South African perspective, the Apartheid case must look very similar, and it is no wonder that the South African government has asked that the case be dismissed.

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And then the conclusion of the address:

The problem that human rights enforcement must ultimately address – and for which the ATS is of little avail – is the failure of foreign countries’ own domestic rule-of-law institutions to prevent and provide redress for abuses. These failures cannot be fixed by any single policy program or lawsuit, and certainly not by making U.S. courts ad hoc claims tribunals. Rather, inculcating a respect for law and human rights takes a sustained and careful effort focused on strengthening legal institutions in foreign States, not necessarily expanding the reach of our own.

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Also over at Opinio Juris, Dave Glazier, whose work I admire but often, alas, disagree with, makes the

following observations in the comments. I think these observations are astute, although my general agreement with what Dave thinks is the result perhaps overly persuades me:

[F]rom a legal and historical perspective, I have to conclude that a narrow reading of the ATS makes far more sense. The original language from the Judiciary Act of 1789 is still recognizable in the current statute, but the original contains a couple of nuances I believe are key to understanding the intended scope of the law. The full 1789 text reads:

[district courts] shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.

Points I take from this are:
(1) If federal ATS jurisdiction was to be concurrent with State courts, then the conduct envisioned to be actionable seems logically limited to acts taking hich takes place within the United States. Once admiralty and maritime jurisdiction was committed exclusively to the federal courts, it seems unlikely that State courts were considered to have any extra-territorial jurisdiction in the 18th century

(2) Don't the language's location in Art. 9 of the 1789 Act, which deals simply with federal jurisdiction, the reference to "tort," and the mention of concurrent State jurisdiction all suggest that the statute is purely jurisdictional and that a separate recognized cause of action is required to bring suit?

(3) Since it isn't until the 20th century that international law was considered capable of regulating a nation's internal conduct towards its own citizens, it seems wholly implausible to think that the Framers were intending to open U.S. courts to foreign citizens to sue other foreign parties for conduct that wasn't regulated by international law at the time. It is much more realistic to conclude that the ATS was simply intended to ensure that a foreigner whose diplomatic status or safe passage rights were violated while they were in the United States could have their case heard in a federal court. This interpretation seems entirely consistent with concerns expressed by leading figures during the Articles of Confederation period and several comments in the Federalist Papers.

While I personally wouldn't mind federal courts having a broad power to adjudicate egregioius human rights abuses regardless of where they take place, as a matter of law I just don't think that view of the ATS is persuasive. If the ATS creates actual causes of action to sue for violations of international law, that would mean that aliens had greater rights in U.S. courts than U.S. citizens, who would have to find a separate cause of action before they could sue. Surely neither the Framers nor any subsequent Congress intended that result!