John Bellinger III, who is the Legal Advisor to the Secretary of State, delivered a major public policy address on the Alien Tort Statute ATS) as Vanderbilt’s 2008 Jonathan I. Charney Lecture at Vanderbilt Law School on Friday, April 11.
Bellinger’s lecture, “Enforcing Human Rights in U.S. Courts and Abroad: The Alien Tort Statute and Other Approaches,” addressed a statute originally included in the Judiciary Act in 1789, which is now used to bring lawsuits against private plaintiffs and individuals for alleged human rights abuses.
According to Bellinger, the ATS “is one instance where reading the text of the statute doesn’t get you very far.” The statute reads simply: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”
For 190 years, the ATS was invoked in only two cases. “Why it was enacted is something of a mystery,” Bellinger said. “What little we do know about the ATS’s origins suggests that its principal motivation was to provide redress for offenses committed by U.S. persons against foreign officials in the United States.”
However, in 1980, the Second Circuit Court of Appeals permitted two Paraguayans living in the U.S. to proceed with an ATS suit, Filartiga v. Peña-Irala, against a former Paraguayan government official, who was also living in the U.S., for the torture and killing of a family member in Paraguay. “The court held that torture is a violation of the law of nations and that, under the ATS, U.S. courts could decide a torture claim arising in a foreign country,” Bellinger said. “The decision in effect sanctioned use of the ATS for international human rights litigation, and from there, ATS cases in the federal courts grew substantially.”
During the 1980s, Bellinger said, most ATS cases tended to address alleged human rights abuses by officials of foreign governments against their citizens. However, by the 1990s, ATS litigation had expanded to include suits against private corporations brought by plaintiffs who claimed the companies had aided and abetted alleged human rights abuses perpetrated by foreign governments. “In all, more than 100 ATS suits have been filed since Filartiga,” Bellinger said.
The Supreme Court considered a case involving the ATS for the first time in 2004. Sosa v. Alvarez-Machain involved a Mexican plaintiff who alleged that the defendant, also Mexican, helped abduct him and bring him to the U.S. for prosecution at the behest of the U.S. Drug Enforcement Agency. The plaintiff, who was acquitted, claimed that his abduction in Mexico by the defendant amounted to an arbitrary detention in violation of customary international law. “The Supreme Court ruled that the ATS is only a jurisdictional statute, and does not by itself create a cause of action,” Bellinger said. “Applying this limitation, the Court rejected Sosa’s specific claim that international law prohibited ‘arbitrary detention.’”
However, he added, because “The Court also did not foreclose certain additional suits for violations of international law, provided, among other limitations, that the claim ‘rest[s] on a norm of international character accepted by the civilized world,’” the flood of ATS litigation “has showed no signs of slowing down.” Current litigation includes a suit against an American company for selling bulldozers eventually used to demolish Palestinian homes to Israel through a U.S. military assistance program, and a suit against U.S. chemical companies that manufactured Agent Orange, which was used by the U.S. military as a defoliant during the Vietnam War.
Although Bellinger notes that ATS litigation may afford some benefits, such as promoting accountability for human rights abuses, he believes the use of the nearly 220-year-old statute by foreign plaintiffs to bring suit in U.S. courts for violations of international law is creating a foreign relations issue. “I can assure you that foreign governments do not see the ATS as an instance of the United States constructively engaging with international law,” he said. “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.”
In addition to causing diplomatic friction, when ATS litigation is used as a mechanism to bypass U.S. foreign policy decisions, according to Bellinger, U.S. courts are placed “in the awkward position of adjudicating issues touching on U.S. foreign policy.”
As a partial solution, Bellinger proposes that the scope of the ATS be limited in the future by permitting plaintiffs to file suits under the ATS only if all means of redress in the country of origin have been exhausted. “Going forward, we need to consider how to limit the costs of the Alien Tort Statute – both diplomatic and democratic,” he said. “A critical first step is to recall the ATS’s original purposes of providing foreigners an adequate means of redress for other offenses committed in U.S. territory, and perhaps on the high seas in the case of piracy. ATS actions should be confined to situations that closely resemble the types of suits the First Congress had in mind.”
In addition, rather than using the ATS as catch-all for cases of human rights abuse, Bellinger said, “we need to focus on the many other tools the U.S. government, and in particular the State Department, can use to prevent and redress human rights abuses. The problem that human rights enforcement must ultimately address…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 making U.S. courts ad hoc claims tribunals."
John B. Bellinger III is the principal adviser on all domestic and international law matters to the Department of State, the Foreign Service, and the diplomatic and consular posts abroad. He is also the principal adviser on legal matters relating to the conduct of foreign relations to other agencies and, through the Secretary of State, to the President and the National Security Council. He joined the Department of State in January 2005 as Senior Advisor to Secretary Rice, having previously co-directed her transition team.
The annual Jonathan I. Charney Distinguished Lecture in International Law honors former Vanderbilt University Law School Professor Jonathan I. Charney, one of the world’s preeminent experts on international law, who held the Lee S. & Charles A. Speir Chair at the law school until his death in 2002.
– Grace Renshaw