The Diplomatic Friction of ATS Litigation

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.