Wednesday, October 19, 2005

Senate Considers Removing International Law from the Alien Tort Statute

Senator Dianne Feinstein, a Democrat from California, has introduced a potentially revolutionary amendment to every international lawyer's favorite statute, the Alien Tort Statute. While Sen. Feinstein calls her amendment a "clarification," it looks to me like she is proposing a near-complete evisceration of the Alien Tort Statute as we (international lawyers) know it. And such an evisceration is almost certainly a good thing.

Since 1980, when it was first invoked to allow aliens to bring suits alleging violations of international human rights law, the Alien Tort Statute has become a vehicle for advocates of international law within the U.S. International lawyers loved the statute because it opened the door to federal court vindication of customary international law, a type of law rarely recognized by courts in other contexts. In recent years, advocates have used the ATS to sue large corporations and, more recently, the U.S. government for alleged abuses arising out of the war on terrorism.

If enacted, the Feinstein amendment would continue to permit lawsuits for genocide, torture, slavery and slave trade, extrajudicial killing, and piracy. But, unlike the current open-ended ATS, those are the only claims you can bring under the statute (creative claims for violations of, say, international environmental rights, would not be permitted). Most importantly, the definition of these claims would be statutory as opposed to based on international custom, which is notoriously fuzzy and evolving.

The amendment has some other salutary provisions. It would give the President the power to terminate an lawsuit if he certifies in writing that the suit would have a "negative impact" on U.S. foreign policy. It also appears to shield corporations from theories of "aiding and abetting" liability by limiting damages to defendants who are "direct participants acting with specific intent to commit " one of the specified torts."

In sum, Sen. Feinstein is proposing that Congress "de-internationalize" the Alien Tort Statute. Instead of looking to foreign courts or international tribunals (or to international law professor articles), courts considering a claim under the ATS would look to the text of the statute and the legislative history. Victims of serious human rights abuses would still be able to bring their lawsuits, but they would have to meet U.S. statutory standards, and not fuzzy international ones.

I have no idea whether this bill has a good chance of passing, although I think its sponsorship by a moderate Democrat is very promising.

* Here are some key excerpts from the bill

‘‘§ 1350. Alien’s action for tort
‘‘(a) JURISDICTION OF DISTRICT COURTS.—The district courts shall have original and exclusive jurisdiction of any civil action brought by an alien asserting a claim of torture, extrajudicial killing, genocide, piracy, slavery, or slave trading if a defendant is a direct participant acting with specific intent to commit the alleged tort. The district courts shall not have jurisdiction over such civil suits brought by an alien if a foreign state is responsible for committing the tort in question within its sovereign territory.


‘‘(c) LIABILITY FOR DAMAGES.—Any defendant who is a direct participant acting with specific intent to commit a tort referred to in subsection (a) against an alien shall be liable for damages to that alien or to any person who may be a claimant in an action for the wrongful death of that alien.


‘‘(e) FOREIGN POLICY INTERESTS OF THE UNITED STATES.—No court in the United States shall proceed in considering the merits of a claim under subsection (a) if the President, or a designee of the President, adequately certifies to the court in writing that such exercise of jurisdiction will have a negative impact on the foreign policy interests of the United States.


Blogger anonymous said...

Excellent news as far as I'm concerned. The ATS has grown like The Blob into a monster that threatens to swallow anything it touches. To come from Feinstein is surprising -- but even a broken clock is right twice a day. I certainly hope it passes.

10/20/2005 1:09 AM  
Blogger K. Scott said...

y'all must be joking.
The reach of corporations has increased to the point of subsuming governments: yet you want to largely excempt them from suit. The present Administration is actively defining torture away: yet want to limit the jurisdisction of the ATS to "torture...". You continuously refer to 'fuzzy international law': yet the Administration attempts to undue 50 years of settled law and US policy in favor of ludicrous definitions of 'torture', among other things, and attempts to cabin the reach of Common Article 3 to wars between states (without textual foundation and in the face of increasing relevancy of on-state actors). Sheesh......... doing so will pretty neatly undue the wisdom of the original Congress in making the US subject to international customary law.... only the US preeiminent position may, for a time, avoid thus incurring the calumny and isolation the First Congress avoided, however the same preeiminence will grossly impact the development of customary law, and international human rights...... ...and there are far more fields than merely int. humanitarian law dependent on this evolution: int. public health to name one.
This is short sighted, as well as narrow minded.

10/20/2005 3:15 AM  
Blogger Ben Davis said...

Feinstein is enabling depravity rather than fighting it. She should not and we should not - especially law professors.

10/21/2005 10:53 AM  
Blogger JB said...

It is a sad comment when we cannot hold ourselves accountable for wrongs to visitors to our shores. While I could be convonced that the idea of "law of nations" has changed radically since 1789, to restrict treaty violations in a way as Feinstein has proposed is reprehensible. The Framers understood that the Legislture, when ratifying an international treaty, made that treaty the Law of the Land. It seems that idea has been lost on Feinstein as well as the notion of accountability.

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