[opiniojuris] Roger Alford: Bellinger Speaks Out on ATS Litigation

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Posted by Roger Alford:
Bellinger Speaks Out on ATS Litigation
http://www.opiniojuris.org/posts/1208467480.shtml


   Last week State Department Legal Adviser [1]John Bellinger delivered
   [2]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 â 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
     Sosaâs 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
     âcase-specific deference to the political branchesâ?

   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) âdiplomatic costsâ and the (3) âlack of democratic
   checks and accountability.â 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 ârogue actorâ 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 â 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 tribunalâs 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 victimsâ 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
     governmentsâ 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.
     governmentâs 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 Sosaâs 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 Branchâs view of the
   caseâs 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.

References

   1. http://www.state.gov/r/pa/ei/biog/48242.htm
   2. http://www.state.gov/s/l/rls/103506.htm