The Diplomatic Friction of ATS Litigation

by Roger Alford

Former State Department Legal Advisor John Bellinger, who is now at Arnold & Porter and also an Adjunct Senior Fellow at the Council on Foreign Relations, has an interesting op-ed in yesterday’s Wall Street Journal.

The U.S. government can and should be a strong voice for redress of human-rights abuses around the world. But these lawsuits, which are being brought under the 200-year-old Alien Tort Statute, are likely to cause friction between foreign governments and the Obama administration. Congress should step in and clarify the types of human-rights cases that may be heard….

In recent years, the majority of suits under the statute have been brought against petroleum companies and miners operating in countries with poor human-rights records. These include ExxonMobil in Indonesia, Unocal in Burma, Talisman Energy in Sudan, and Rio Tinto in Papua New Guinea.

In 2004, the Supreme Court attempted to narrow the types of cases that may be brought under the Alien Tort Statute…. In Justice Souter’s words, the door for further litigation was “still ajar subject to vigilant doorkeeping” by the federal courts. Nevertheless, plaintiffs have continued to urge federal courts to recognize new causes of action. In recent years, for example, Caterpillar Inc. was sued for selling bulldozers to Israel that were eventually used to demolish Palestinian homes. Dow Chemical Co. was sued for manufacturing the Agent Orange defoliant used during the Vietnam War. And Yahoo Inc. has been sued for sharing user information with the Chinese government, which resulted in the arrest of Chinese dissidents….

Litigation under the Alien Tort Statute may force companies to modify their international activities in some cases, although it rarely produces monetary awards for plaintiffs. But it does give rise to diplomatic friction in U.S. relations with foreign governments. Governments often object to their officials and corporations being subject to U.S. jurisdiction for activities taking place in their countries and having nothing to do with the U.S….

Human-rights and labor groups are likely to press the Obama administration to support litigation under the Alien Tort Statute and even to reverse the Bush administration’s opposition to the apartheid case. Mr. Obama is right to place greater emphasis on the U.S. commitment to international human rights, and the State Department should be at the forefront of these efforts. Rather than continue to leave it solely to the federal judiciary to determine what violations of international law may be heard in U.S. courts, the Obama administration should ask Congress to revise the Alien Tort Statute to provide greater specificity regarding what actions it covers.

Human rights should be promoted in most cases through direct diplomatic engagement and corporate responsibility, not through litigation that causes diplomatic friction and that may be inconsistent with international law.

This is one area where it remains completely uncertain as to how the Obama Administration will respond. President Obama appears to care deeply about maintaining good relations with our allies and reaching out to our enemies. It will be interesting to see what his top international lawyers do with ATS litigation. Bellinger’s soon-to-be successor Harold Koh, while a well-known human rights advocate, also has famously argued that we should be extraordinarily sensitive to diplomatic tensions, even going so far as to argue that our death penalty practice should be rethought in light of foreign objections. Anne-Marie Slaughter, Director of Policy Planning at the State Department, argued in her 2000 Foreign Affairs’ piece entitled Plaintiff’s Diplomacy that “American courts today are walking a fine line between expanding a transnational legal system capable of enforcing international law and engaging in a unilateral legal expansion that will damage long-term U.S. interests…. In the legal sphere, as in so many other areas, the United States should be wary of the resentment its muscle-flexing produces.” If one did not know the identity of the author the article reads as if it could have come from the pen of John Bellinger.

The basic point Bellinger appears to be making is that we should not assume that the Obama Administration will support ATS litigation in its current incarnation. From my perspective a statutory fix appears unlikely, but at a minimum it is yet to be determined whether the Obama Administration will continue with the Bush tradition of filing statements of interest opposing certain types of ATS litigation.

http://opiniojuris.org/2009/05/29/the-diplomatic-friction-of-ats-litigation/

14 Responses

  1. Great post Roger. Thanks for sharing.

  2. Even though the ATS is frequently criticized for presenting possible dangers to U.S. foreign relations I have never heard of an actual example where the ATS has done so.  Does anyone know of any?  I have never heard of the ATS causing a war or causing another country to break off diplomatic relations with us.  If there are no such examples perhaps the danger posed by the ATS is more hypothetical than real?  How much friction has the ATS actually caused?

    I say this even though I am not a big booster of the ATS.  I prefer the approach taken to the ATS by Judge Bork in Tel-Oren v. Libyan Arab Republic and by Justice Scalia in Sosa v. Alvarez-Machain.

    John Bellinger may be right when he proposes revision of the ATS.  (Oddly, although it is conservatives who are hostile to the ATS, the only lawmaker I know of who has proposed limiting the ATS is Senator Diane Feinstein.  Does anyone know of any others?)  Would there be any merit in reviving (binding) executive suggestions of immunity?  Doing so would give the Executive control over which ATS suits go forward.  And executive suggestions would give the Executive greater flexibility than rewriting the ATS.

    As Professor Alford has suggested, multinational corporations doing business in the Third World can reduce their risk of liability under the ATS by inserting indemnity clauses in their contracts.

  3. Multinational corporations can also reduce their risk of liability under the ATS by not knowingly providing governments with the materials they need to commit massive human-rights violations.

  4. The ‘diplomatic friction’ of the ATS is nothing new.  Why was this published by the WSJ and why is it posted here?

  5. Brian,

    The reason it was published and posted is because the Supreme Court in Sosa stated that we should take such matters into account.  The Bush Administration did and we are waiting to see whether the Obama Administration will.

    Roger Alford

  6. In response to Charles’ question, I think the closest thing to significant backlash would be the South African litigation, but has that even reached more than an amicus brief yet?  I do think that case poses as much danger to the ATS as it potentiates good, and poses the most significant threat to US foreign relations.

    I think Mr. Bellinger tips too far in his final sentence. He appears to sugest human rights should not be justiciable at all. In reality, often times the only avenue available for a litigant to hold someone to account for human rights violations is through the use of domestic or foreign laws. Most countries are still not parties to the UN oversight mechanisms that would allow some other type of relief, and we need these litigation vehicles if we’re going to give any meaning to human rights beyond the fodder that passes for UN declarations.

    I always enjoy it when corporate attorneys suggest the ATS has caused all sorts of diplomatic friction now that it is being used against MNCs/TNCs. I think there’s a stronger argument that the move from cases against foreign governments and their state actors towards suits against MNCs/TNCs should be a welcomed shift.  We’re no longer asking foreign gov’ts or their leaders & former leaders to account but rather this third party who isn’t actually the government but often times a western corporation or the subsidiary of a western corporation?  I know it’s not perceived that way (particularly by corporations and their lawyers), and that developing states are fearful of the impact on investments in their countries, but I don’t think the solution is to limit the ATS to torture cases.

    Roger, I would be intersted in knowing if you see a limit to judicial deference to the Executive in these matters?

  7. Oh John,
    Yes giving redress for human rights violations to individuals makes diplomacy peskier.  But, given the way governments are willing to sacrifice issues of human rights on the altar of economic interest (Hillary in China anyone?), it seems the calculus is going to push political authority  toward underplaying the importance of actual enjoyment of human rights by oppressed persons in national minorities.  ATS – in its 18th century equivalent form – is such a watered down tool.  Yet, even that modest tool is one that is considered “too much.”  Give me a break.
    Best,
    Ben

  8. John and Anne-Marie have been two peas in a pod.  Too much to explain to discuss in depth here.
    Best,
    Ben

  9. In the event there really are serious political repercussions from ATS lawsuits, they can just implement a legislative solution (I.e. repeal the statute)

  10. Congress enacted the ATS in 1789 to REDUCE friction between the U.S. government and a foreign government, and between foreign governments.  (Remember the 1784 Marbois Affair?) After all, providing a peaceful judicial resolution to a conflict between parties, who belong to different nations that have recognized the same rules of decision (viz., international law) for deciding the case, would appear to reduce interstate conflicts. 

    I don’t see how suing a TNC under the ATS can cause interstate conflicts unless the TNC effectively controls a state or a state effectively controls the TNC.

  11. Francisco,

    Your comment is puzzling.  ATS suits against TNCs almost always involve allegations that they acted in concert with foreign governments to violate international law.  Interstate friction is the norm when a U.S. judge is analyzing whether the corporation and the foreign government violated the law.

    Moreover, international friction is common when a foreign government wishes to forthrightly deal with the issue through a mechanism other than litigation.  The South Africa context is the most obvious example.

    Roger Alford 

  12. Roger,

    I agree with you, and I should have been clearer.  When an alien plaintiff sues a TNC that has acted in concert with a foreign government for international law violations, there obviously already is a conflict between the parties.  Does the plaintiff’s use of the ATS to resolve that conflict create an additional interstate conflict by involving the U.S. through its federal courts?  It could, but the potential for such conflicts is almost always present when such a TNC has contacts with another state (such as the U.S.) sufficient to establish that state’s jurisdiction over the TNC-defendant.     That’s just the cost of doing business in the state.  And, if a foreign state acts in complicity with the TNC, that’s a cost of doing the business of governing — bad governing if the plaintiff’s allegations are true.  The potential for interstate conflict is a necessary consequence for peacefully resolving the underlying original conflict between the parties through ATS litigation. 
    I guess what I should have said is that assuming arguendo that interstate conflict will emerge if an alien plaintiff prevails in an ATS suit against a TNC-defendant in a manner consistent with the international law that binds not only the  U.S. but the foreign state, does such conflict outweigh the plaintiff’s right to a remedy?  I don’t think so.  The foreign government and the TNC made their respective beds.  They now have to sleep in them.

  13. Is the ATS operating in a manner to the investigatory judges in Spain exercising (or at least trying to do so) universal jurisidiction? It seems to me that the two scenarios are eerily similar. The most striking difference being the party initiating the action: in Spain, judges, in the U.S. private plaintiffs.

    It would be interesting to see the discussion of the ATS (and any consideration of changes / limits) considering recent activities in Spain and any criticism thereof (or not).

  14. Strictly speaking, Adam, that is not the difference at all. In Spain, it is also private parties who depose a complaint, the judge does not just wake up and think: ‘today: the municipality; tomorrow: the world!’ (although it is not hard to see how a judge could manipulate that system if s/he wanted.

    The real difference, however, is that the Spanish investigations are fundamentally criminal investigations, not civil suits.

    I would expect that there is vastly greater potential for ‘diplomatic friction’ with criminal investigations, and the reactions to Belgium and Spain’s universal jurisdiction rules vis-à-vis the reaction to ATS suits seems to bear this out.

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