Debate: did Founders want U.S. courts to look abroad for monsters to destroy?


A relatively new take on a centuries-old statute has stirred up serious questions about how U.S. courts can be used to litigate international human rights abuses.

On Monday, October 26, Eugene Kontorovich and Richard Hertz discussed the role of the Alien Tort Statute in the 21st Century. The debate was sponsored by the Federalist Society and held in the John Chipman Gray Room.

Part of the Judiciary Act of 1789, the Alien Tort Statute gives district courts original jurisdiction over any civil action by an alien for a tort committed in violation of the law of nations or a treaty of the United States. It was relatively obscure until the Second Circuit held in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) that violations of international norms, including human rights violations, could confer jurisdiction in U.S. courts.

According to Kontorovich, a professor at Northwestern University School of Law, Filartiga has given rise to a sector of human rights litigation and substantial controversy. He discerned two main waves of cases that have arisen in this vein: suits against foreign officials under the statute and suits against corporations alleged to have helped countries commit human rights abuses.

However, Kontorovich said that such litigation was far removed from Congress’ intent in passing the statute, which was to prevent Americans who violated international law from getting the entire country in trouble.

The idea is that “we don’t want the part to endanger the whole,” he said. “They liked to beat up French ambassadors back then. Times have changed.”

Kontorovich said that, while universal jurisdiction is properly applied to a narrow set of crimes including piracy, using the Alien Tort Statute to have established a civil remedy for universal jurisdiction would set the U.S. apart from other nations.

“Europe has said they don’t understand what the U.S. is doing with this law,” he said. “U.S. courts have used universal jurisdiction over offenses no one has before.”

Hertz, a senior attorney for EarthRights International, said that the original purpose of the Alien Tort Statute was much broader. The framers, he said, were concerned about demonstrating to the world that the fledgling nation was committed to international law. Given this purpose, Hertz did not consider the use of the statute to enforce international human rights to be a violation of its original purpose.

“The ATS is a shining example of human rights and separation of powers,” he said. “I think what is driving the hostility towards it is distaste for international law and efforts to protect U.S. corporations.”

For Hertz, using the Alien Tort Statute to sue U.S. corporations is not a major departure from long-established legal principles, since “you can sue Americans for the things they do abroad” and “the only place universal jurisdiction comes into effect is tag jurisdiction.”

“It is by statute the policy of the U.S. to promote human rights,” he said. “This is really about fundamental values shared across the spectrum.”

Kontorovich disagreed that the way the Alien Tort Statute was applied in Filartiga conformed with original intent, saying that “the majority wanted to have originalism both ways – the framers wanted one thing, but international law changes.”

He expressed further concern that these cases involve courts in sensitive matters best left to the executive.

“It almost never ingratiates us to other countries,” Kontorovich said.

Hertz believes that this line of reasoning conflicts with fundamental principles of the American legal system.

“In all other aspects of U.S. law, we don’t dismiss cases because other countries don’t like them,” he said. “The idea that if the government says a case should be dismissed it should be dismissed is against separation of powers.”

Another area of disagreement was the degree to which the indeterminate nature of international law was problematic.

Kontorovich said that while some crimes are universally cognizable and some are not, “the universally cognizable list is very short applying the law of nations.”

“In the modern era, there is lots of soft law,” he said. He paraphrased James Madison as saying that “international law is there but offers too vague an answer.”

According to Hertz, any vagueness is addressed by a standard maintaining that norms have to be well defined in international law. He added that the framers “were very comfortable with courts looking to international law to figure out what international law is.”

Kontorovich also brought up additional practical and procedural concerns regarding defendants without a U.S. nexus.

He said that there is very little evidence that there is any deterrence to suing foreign officials in part because it would be hard to enforce judgments against such people. And, after all, “genocidaires,” he said, are “people who are clearly very risk accepting.

Finally, there were due process concerns.

“We think being tried by people with no stake is a due process or fairness issue,” Kontorovich said. “There is no reason innocent people from around the world should be hailed into U.S. courts.”

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