State Department legal adviser discusses human rights litigation in U.S. Courts.

• Author: Crook, John R.

In a lecture at Vanderbilt Law School in April 2008, (1) State Department Legal Adviser John Bellinger examined the benefits and costs of U.S. court litigation involving the Alien Tort Statute (ATS). (2) Excerpts follow:

ATS litigation continues largely unabated, despite the Supreme Court's attempt in Sosa (3) to rein it in. Second, the ATS has given rise to friction, sometimes considerable, in our relations with foreign governments, who understandably object to ... U.S. jurisdiction for activities ... having nothing to do with the United States. Third, the development of ... the ATS has largely been left to litigants and the courts, without formal involvement from Congress and largely contrary to the views of the Executive.... [I]n the end, there are good reasons for limits on the scope of the ATS--through courts exercising restraint, or if necessary, through legislation.... What little we do know about the ATS's origins suggests that its principal motivation was to provide redress for offenses committed by U.S. persons against foreign officials in the United States.... [Bellinger here discussed Filartiga v. Pena, (4) the first modern ATS case.]

In the 1980's, most ATS cases tended to involve circumstances like those in Filartiga--suits by foreign nationals against officials of their own government for conduct that occurred in a foreign State. By the 1990's, the focus of ATS litigation expanded, with plaintiffs bringing more suits against private actors, mainly corporations, for among other things, aiding and abetting alleged human rights abuses perpetrated by foreign governments. In all, more than 100 ATS suits have been filed since Filartiga.

Against this background, the Supreme Court for the first time considered the ATS in its modern incarnation in ... Sosa v. Alvarez-Machain....

The Supreme Court ruled that the ATS is only a jurisdictional statute, and does not by itself create a cause of action. But the Court also reasoned that the First Congress "understood that the district courts would recognize private causes of action for certain torts in violation of the law of nations." ... [T]he Court identified three 18th-century causes of action as paradigmatic: offenses against ambassadors, violations of "safe conduct," ... and piracy. The Court also did not foreclose certain additional suits for violations of international law, provided, among other limitations, that the claim "rest[s] on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features [of these paradigmatic offenses]." ...

The Court thus accepted the narrow "jurisdictional" interpretation of the ATS ..., but held that the ATS authorized federal courts to recognize certain new causes of action. Significantly, however, the Court identified a number of factors that counseled special "judicial caution" and a "restrained conception of the discretion a federal court should exercise in considering a new cause of action" under the ATS....

... [A]lmost four years later, litigation has showed no signs of slowing down. Plaintiffs continue to ... [argue] for expansive applications of customary international law. [Bellinger here recalled four recent ATS suits posing what he regarded as such expansive claims.] The Second and Ninth Circuits, in...