Sunday, April 19, 2009

Bradley and Goldsmith in the WP on ATS cases, and my further question

(Cross posted with minor edits from Opinio Juris).

I am fundamentally in agreement with the Bradley-Goldsmith view as to why the Alien Tort Statute is a bad idea. I would simply repeal it as lacking connection to its original purpose and providing many perverse incentives, not to mention avenues of litigation open to aliens that are not open to US citizens.

However, I want to post up a related question. It is not so much about the ATS itself or its implications for US law or its politics. It is, rather, about the substance of the legal positions produced in ATS cases and the US-centric methods by which they are produced, and whether non-US international lawyers and legal scholars think that they are right as a matter of international law, the substance of international law.

As I point out in a short essay coming out soon in the European Journal of International Law that Joe Weiler was kind enough to solicit (adv.) (but it is certainly not an observation original with me):

Consider, for example, the very particular sub-community of interpretation of international law by US courts in Alien Tort Statute interpretation. Those courts (constantly citing to each other) have gradually built up a self-referential, hybrid jurisprudence of certain aspects of international criminal law – war crimes, crimes against humanity, and genocide, for example – together with other materials drawn from US civil and tort law, such as corporate liability, aiding and abetting, and similar doctrines. The individual terms of the Alien Tort Statute – “in violation of the law of nations or a treaty of the United States,” especially – create idiosyncratic pressures on interpretation. What is the ‘law of nations’ – for purposes of US jurisprudence, under US constitutional standards and current Supreme Court interpretation under the Sosa decision? Whatever exactly the ‘law of nations’ means as an international law term, it means something different in the hands of American courts that, under Sosa, are required to look not strictly to “traditional” international sources, such as those stated in the ICJ statute, nor strictly to such concepts as jus cogens – but instead, per Sosa, to a somewhat altered form of original meaning jurisprudence and what the drafters of the statute meant, or anyway what was meant in their times, along with some “fundamental” matters of the law of nations.

I do not mean to get hung up on differences among contested doctrines of US ‘originalism’ in interpretation - on the contrary, the fact that we might get hung up on such things tells you something about how distinctive this community of “international law” interpretation is. In other words, the jurisprudence of the US courts applying the ATS is not merely internationally agreed substantive international law plus some US civil litigation concepts to make the claim out in US tort terms such as enterprise liability. It is, instead, an interpretation of “international law” filtered through an ancient US statute, with US canons of constitutional interpretation applied to the meaning of the statute, Sosa atop of that (Sosa, while (predictably) not producing predictable outcomes, nonetheless introduces a distinctly US set of interpretive issues) and only by extension to the “international” law underlying it.

The whole process of interpretation, while fairly ordinary in US constitutional adjudication, must look slightly strange to international lawyers. The substantive results, especially as driven by the urgent, overriding, absolute need of plaintiffs to show a law of nations violation merely to get into US court, must start to look strange to those international lawyers as well. What does it mean when the function of the law of nations is to establish a threshold by which to get into court, rather than being the core issue of the litigation - litigation in tort, not a category of international law as such at all? Doesn’t this inevitably affect the way in which the law of nations is interpreted? I suspect – it is hard to get anyone to say much, frankly – that many non-American international law experts are, on the one hand, reassured to see American courts involve themselves with substantive international law, gradually drawing it into American jurisprudence and adjudication. On the other hand, I suspect many of them are also privately unhappy with the actual content of that law, thinking that it is evolving within its closed community in ways that are not consistent with the “authoritative” interpretation of international law in the international community and that are, in a word, weird. But who wants to be the non-American “international lawyer” to tell a US District Court that?

This is from the unedited draft; it will all be polished up in the final. But my basic question stands. I have had conversations with several prominent European legal scholars over the years who have expressed exactly such private reservations about the interpretive filter through which international law flows in ATS cases as well as private reservations about the substantive results. They also have never wanted to make such criticism publicly, because overall they favor American courts getting involved, presumably - the discussions didn’t go that far - because they hoped, as American transnationalists often hope, to use the American courts for (as John Bolton or I might put it) an end-run around the will of the American political branches.

But I would be exceedingly curious to know if there were discussion by non-American legal scholars of the process and substance of American ATS cases - whether favorably or unfavorably disposed. I have searched over the years, but don’t find so much - especially criticism of the kind that I have heard in private discussion. The closest things to criticism I can think of are the expert declarations offered a few years ago by Christopher Greenwood and James Crawford in Talisman in which there were at least some discreet, indirect criticisms offered of US court interpretations of international law. But I might be over-remembering.

So my question is, does anyone know of expert commentary by non-US international lawyers or scholars in this area? Either for or against the way in which US ATS litigation interprets as a matter of method as well as substantive conclusions of international law? I would be grateful if you could point me toward such commentary.

(I should add that I have occasionally done expert declaration work on ATS cases.)

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