Judge Leval’s Revealing Defense of the Alien Tort Statute

by Julian Ku

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?


6 Responses

  1. I’m no expert in ATS litigation, but it’s my understanding that if the ATS is read narrowly in Kiobel, similar suits could just be brought in state court. Does the jurisdiction of state courts over such claims face the sort of limitations that Judge Leval suggests? And if not, what policy imperative is there to limit federal jurisdiction more narrowly than state jurisdiction? Surely these are cases that we would prefer to be heard in federal courts, if state courts are the other option (at the very least in order to develop some sort of uniformity).

  2. Julian, put aside the question of whether the ATS is presently being construed to add extra-textual safeguards (if for no other reason than that this’ll be updated before long).  You say: “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?” 
    As a general matter, do you think that courts should construe a statute now — regardless of when it was enacted — according to their hypotheses about the shape the statute would take were it reenacted by Congress?  (And if judges felt it would not be passed, should they refuse to consider it at all?)  Or that courts should expand their inquiry, so as to take likely foreign legislative druthers into account?  It strikes me that there’s a huge leap from your vision of the shape the ATS should take, to the approach you are suggesting for courts trying to apply the statute as written.

  3. It diodes strike me that a legislature did pass the ATS 200 years agof hall the foreign policy concerns can be addressed in the state to state executive level, but the merit of the ATS is that state judicipowered is mobilized for people whose injury is there principal concern rather than the dance of statecraft. The narrowing language arguments are about the judiciary internalizing foreign policy concerns tab out which they have no expertise.

  4. “With friends like these….”
    Fortunately, the early cases and ops. of AG’s demonstrate the extraterritorial reach of the ATCA (ATS) in suits involving alien plaintiffs against alien or U.S. national defendants with respect to violations of international law over which there is universal jurisdiction, esp. so that the U.S. does not engage in a “denial of justice” to aliens.
    Also, today, more jobs for our graduates as plaintiff and defense lawyers, judges, etc. — good for the U.S. economy!  If other countries want to get competitive in this regard, gosh, remedies for violations of human rights, the CAT, etc. might be significantly more possible!!! And all states have duties to provide such remedies in their domestic courts!!!! Which is partly why Charming Betsy is so important in this regard.

  5. Edward: well said, and Congress has not chosen to amend the ATCA (ATS) for more than 200 years!  Julian may have missed the well-understood fact, also identified in some federal cases, that when Congress passed the TVPA Congress actually endorsed the Filartiga line of cases!!  It would be wrong for courts to add limitations that Congress never chose. see http://ssrn.com/abstract=2173474
    As Ben knows, state courts can provide an alternative forum in any event.  The Texas Supreme Court in the Kazi case recognized that there must be access to courts and a remedy for human rights violations, quoting some of the General Comments of the H.R. Comm. under the auspices of the ICCPR. 

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