Judge Leval’s Revealing Defense of the Alien Tort Statute
Pierre N. Leval, a well-respected judge who sits on the U.S. Court of Appeals for the Second Circuit in New York, has published a full-scale no-holds-barred policy defense of the Alien Tort Statute in Foreign Affairs. The essay, which is adapted from his lecture to the New York City Bar Association, offers the standard argument in favor of the Alien Tort Statute (it gives victims of human rights atrocities the possibility of justice and compensation). And he offers a pre-rebuttal to a possibly negative ATS ruling from the U.S. Supreme Court in Kiobel v. Royal Dutch Shell: the fact that other countries do not permit similar civil suits does not mean the United States should also close its courthouse doors. In fact, it is a good reason to keep them open.
But I found Judge Leval’s advice for foreign countries that might enact their own version of the ATS most interesting and revealing.
Human rights advocates should try to allay predictable objections to countries’ opening their courts. They should start by drafting proposed legislation with modest and realistic goals, building in limitations that may disappoint the most ardent activists but hugely increase the chances of success. For example, a proposed bill for a country should require the approval of the foreign ministry before each suit can proceed to trial and specify that a suit will be allowed only if the plaintiff has no access to just relief in the country of the defendant or in the country where the abuse occurred. The bill should also require a court to dismiss a suit when the defendant can show that the plaintiff has forum-shopped and has access to justice in a country far better suited to hear the dispute, on the condition that the defendant agrees to face trial in that other country’s courts. And it should require an initial showing of probable cause to stave off frivolous, politically motivated suits. Limitations such as these would do much to disarm or convert opponents.
I agree! In fact, any law allowing for civil suits to enforce universal norms must have these kinds of political and foreign policy safeguards. And critics of the ATS in the United States have repeatedly noted that such safeguards do not really exist in the expansive and textually-unsupported interpretation of the ATS first developed by judges on Judge Leval’s court. Put another way, it is hard to imagine that a new bill in the U.S. Congress creating universal civil jurisdiction would pass without similar limitations. So why should the courts feel comfortable giving the ATS such a widely expansive role if neither Congress nor any foreign legislature would ever enact such a law if given a choice?