The U.S. Can't Be the World's Court

May 27, 2009

Wall Street Journal -

John B. Bellinger III, Adjunct Senior Fellow for International and National Security Law

A federal judge in New York recently allowed a lawsuit to proceed against General Motors, Ford and IBM for aiding and abetting crimes against humanity committed by the apartheid government in South Africa. And a lawsuit against Royal Dutch Shell for alleged human-rights abuses in Nigeria is scheduled to begin today in Manhattan. We may be on the verge of a new wave of legal actions against U.S. and foreign corporations in American courts.

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.

The Alien Tort Statute was part of the first Judiciary Act of 1789, and it gives federal courts jurisdiction to hear suits brought by non-U.S. nationals for offenses "committed in violation of the law of nations or a treaty of the United States." It was intended to promote diplomacy and international commerce by allowing foreigners to bring suit in federal courts for offenses not recognized by state law in the 18th century.
The statute was virtually unused until 1980, when the Second Circuit permitted a suit by two Paraguayans against a former Paraguayan government official for the torture and murder of a family member in Paraguay. That landmark decision opened the door for international human-rights litigation, and the number of suits under the Alien Tort Statute has grown substantially in the last three decades.
In the 1980s, most of the cases involved suits by foreign nationals against officials of their own government for conduct that occurred in a foreign nation. By the 1990s, however, the focus had shifted, with plaintiffs bringing more suits against U.S. and foreign corporations -- not for direct abuses but primarily for aiding and abetting human-rights abuses by foreign governments.

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 Sosa v. Alvarez-Machain, Justice David Souter wrote that the law allows federal courts to hear a "modest" class of suits alleging violations of the traditional law of nations -- this would include assaults against ambassadors, violations of safe conduct, and piracy -- or other offenses "on a norm of international character accepted by the civilized world" and defined with a similar "specificity." But the ruling admonished lower courts that recognition of new causes of action based on violations of international law norms "should be undertaken, if at all, with great caution." 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.
In the future, human-rights and environmental groups who have been unable to secure greater protections in free-trade agreements are likely to expand their litigation targets to new industries such as offshore textile manufacturers for denial of labor rights and environmental damage.
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.
The South African government, for example, has asked that the apartheid case against GM, Ford and IBM be dismissed. It argues that the suit punishes global investment in their country and interferes with South Africa's own resolution of the legacy of apartheid. The State Department in 2003 opposed the apartheid suit, citing "serious adverse consequences" for U.S. interests and relations with South Africa. And the Supreme Court said a year later in Sosa that "serious weight" should be given to the executive's assessment of a case's foreign-policy impact. The federal court of the Southern District of New York let the case go ahead anyway.
Suits under the Alien Tort Statute are arguably inconsistent with international legal rules governing extraterritorial jurisdiction. For all their complaints about U.S. attitudes toward international law, foreign governments and international lawyers do not see this litigation as constructive engagement. Instead, they consider the U.S. a rogue actor that has unilaterally established an international civil court with universal jurisdiction.
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.
Mr. Bellinger, an attorney in Washington, was legal adviser for the U.S. Department of State from April 2005 to January 2009.

September 2010 -

Court Exempts Corporations from Alien Tort Law

A federal appeals court has ruled US corporations can no longer be sued for human rights violations abroad under the longstanding Alien Tort Statute. Earlier this month, the Second US Circuit Court of Appeals ruled that Alien tort claims can only be brought against individuals, not corporations. The ruling dismissed a lawsuit accusing the oil giant Royal Dutch Shell of complicity in the murder and torture of Nigerian activists including Ken Saro-Wiwa. In a separate opinion, Second Circuit Judge Pierre Leval criticized the ruling, writing, "The majority opinion deals a substantial blow to international law and its undertaking to protect fundamental human rights… So long as they incorporate, businesses will now be free to trade in or exploit slaves, employ mercenary armies to do dirty work for despots, perform genocides or operate torture prisons for a despot’s political opponents, or engage in piracy—all without civil liability to victims."