Bellinger Speaks Out on ATS Litigation

by Roger Alford

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.

http://opiniojuris.org/2008/04/18/bellinger-speaks-out-on-ats-litigation/

7 Responses

  1. Ah but what of the poor victim? Yes the US has interestst and the foreign governments have interests and both really do not want this issue to get in their way, but what about the poor victim?

    That states might be upset with our civil/criminal hypocrisy does not mean that the solution is to cut off the civil to make our country a space of more indifference to those victims.

    How about we go the other way, we show willingness to revise out doctrines so that there is more accountability for us for the bad things our government does to people abroad?

    John is not preaching US interests, he is preaching Executive Branch preogative stuff again which, as a citizen, I am getting tired of being the end of the road in discussions. It is only the beginning of a broader series of questions.

    Best,

    Ben

  2. No doubt some who read this must think of me as a ranter but I am more a muser.

    I am reading Henry Richardson’s new book the Origins of the African-American Interests in International Law which is focused on pre-1815 African-American relationships to international law. One thing that he is writing about is the testimony of W.E.B. Dubois in support of the US ratifying the U.N. Charter. Dubois was the only African-American to testify in the Senate. He was particularly conscious of his presence for the NAACP but more broadly for the 750 million people of color in the world who were subjugated during colonialism.

    The discussion in the book brought to light to me a visceral very old relationship to international law that may seem so alien to non-African-Americans in America: it is African-Ameicans seeking of outside law in order to vindicate claims/make demands one has due to the internal repression of slavery and segregation in the United States. That outside law takes one out of the distorted image that comes with the Constitutional system and back to one’s internal image of oneself as a human.

    This is important in the context of John Bellinger’s speech because the description to me of his remedies all seem to go in the way of limiting this path for foreigners in our courts. My immediate reaction is – on the contrary – deepen the foreigners access to my courts to assert claims that go to fundamental human rights as this serves as both a check on the foreign governement but also as a useful complication for my government when it wants to do things abroad that are in cahoots with human rights abusers. I WANT that complication to expand so that when my government has those complications abroad it will be less potent.

    Now foreign states may be upset and my government may be upset because it is made to look like a hypocrite. But us being made to look like hypocrites is OK, because it increases pressure on us to not be hypocritical, to find the langauge to make sure our approaches conform to human rights norms in our actions internationally as well as how we act internally.

    To take an example, the Committee on Elimination of Racial Discrimination periodic report that highlights the narrowness of the US view of “fighting racial discrimination” helps us to understand how broad a more meaningful social justice approach would be in the United States.

    By weakening the lever of the ATS, what Bellinger is essentially doing is having the Executives of the world unite (in a very anti-Marxist visions) to allow local suppression. No permeability between states for the victims. That is alway nice from the point of view of the king and his sbires and servants, but it is not a nice thing for the ordinary commoner – the citizen – placed at the mercy of a will without counterlevers.

    That “option for the easily oppressed” vision of the ATS reframes the Bellinger paper as another attempt to reinforce hierarchies and oppression internationally and at a second level, domestically.

    He may be a nice guy, but what he is trying to do is not a nice guy thing. So that is why I object to this among other things that he does.

    It comes in part from that visceral sense that maybe is a visceral sense that is not something that other Americans can have because of their not having the memory of being chattel (as opposed to the memory of slaveowners) in their family’s collective unconscious.

    Give foreigners air to breathe in our system. That helps create air to breathe in their systems. That helps create air to breathe in our system. It is sort of a three step process that goes along with the direct request to give me air to breathe in my system that each citizen makes in their own system.

    Best,

    Ben

  3. Regarding the diplomatic costs point, one should not forget that in Sosa, in their amici curiae brief, the US Foreign Service diplomats rejected the opinion of the Bush Administration that ATCA suits were detrimental to US Foreign Policy interests. Indeed, they noted “on the contrary, [that] eviscerating ATCA could undermine US foreign policy objectives.”

  4. Apologies for the shameless self-promotion but my book, Justice Across Borders(Cambridge, May 2008), takes a look at this issue in depth. It includes interviews with State and Justice Department officials including William Taft. One quote that comes to mind – when I asked Taft why the Administration takes such an aggressive stance on ATS cases he replied “We gain control of our foreign policy in an area where we might lose it.”

  5. This post was most fortuitously timed – I’m preparing to teach the ATS for the first time in my Foreign Relations Law class on Monday and I’m going to use many of the points raised in my teaching.

    From a humanitarian perspective I’m quite sympathetic to Ben’s concerns for the victims of the abuses of which he speaks, but from 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!

  6. Prof. Glazier:

    As to your point no. 1 . . . . The Judiciary Act of 1789 did not give exclusive jurisdiction to the U.S. district courts in admiralty cases. Section 9 of the Act contains the “saving to suitors” exception that allows suitors to seek a common law remedy in state courts. (“saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it”).

    As to your point no. 2 . . . . SCOTUS in Sosa held that federal common law provided the private cause of action.

    As to your point no. 3 . . . . The law of nations always has imposed legal obligations upon a state in regard to its own citizens. For example, the federal courts often applied the law of nations in prize cases between U.S. naval defendants and U.S. nationals. Vattel also recognized that the law of nations authorized nationals to reject their government when it failed to protect them.

    Francisco Forrest Martin

  7. I concur with Francisco Martin’s comments and just want to add a couple of other observations. Mr. Bellinger seems to imply that the ATS was only enacted to take care of ‘public’ violations of the law of nations, i.e. attacks on ambassadors, etc. However, there is no more basis for that interpretation than that it was intended to provide jurisdiction for all tort violations of the law of nations, i.e. piracy. That is, to have a much broader purpose. It is a legitimate question why it lay dormant for so long, but that does not speak to the original intent. Bellinger’s analysis seems far too weighted on how the ATS interferes with the Executive’s (dare one say it) monarchichal perogatives rather than the at least equally plausible interpretation that it was intended to provide a neutral, federal forum for determining international law disputes without interference from the Executive, that is, without the Executive having to take a partisan position. The issues raised in Sosa – particularly how we are to view violations of the law of nations now that ‘general common law’ has been abandoned as a source of law for federal courts – definitely have to be grappled with. However, I find Bellinger’s views far too lopsided in favor of an imperial presidency and far too dismissive of what role Congress and, yes, the courts should play.

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