Saturday, November 13, 2010

In the latest issue of the Stanford Journal of International Law (Vol. 46, no. 1, Summer 2010):  David Wallach, The Alien Tort Statute and the Limits of Individual Accountability in International Law.

Under the original understanding of the ATS, as well as the modern construction set forth by the Supreme Court in Sosa v. Alvarez-Machain, ATS claims can be properly based only on the small number of norms for which international law recognizes personal accountability. Thus, when confronted with a putative ATS claim, courts should analyze whether the international norm on which the claim is based recognizes a potential for personal liability, rather than exclusive State liability.

International human rights law does not carry a potential for personal liability. The language and structure of the major human rights conventions establish that they are intended to impose obligations and liabilities only on sovereign State entities. This is confirmed by the practice and holdings of the international human rights tribunals and committees charged with enforcing these conventions. It is further confirmed by the Restatement (Third) of Foreign Relations and the views of scholars.

Unlike international human rights law, international criminal law imposes individual accountability. However, the history of the development of international criminal law shows that States have been extremely careful in limiting the principle of individual accountability. The concept of crimes against humanity was developed precisely to define the circumstances in which internal human rights violations rise to the level of international crimes, thereby attracting personal accountability under international law. As such, it confirms that human rights violations which do not rise to the level of crimes against humanity remain within the exclusive jurisdiction of municipal law insofar as individual liability is concerned.

Thus, courts should recognize common law causes of action under the ATS only for claims predicated on violations of international criminal law, not international human rights law. This would go a long way towards bringing ATS litigation in line with international law by limiting the United States’ exercise of extraterritorial prescriptive jurisdiction to the small number of cases in which universal jurisdiction is permitted. It also would bring the modern ATS in line with its original purpose. The ATS was intended to provide tort remedies not for all violations of the law of nations as it existed in 1789, but only for conduct defined as criminal by the law of nations. Further, the ATS was intended to reach such conduct, not because it was particularly egregious, but because it “threaten[ed] serious consequences in international affairs.” Violations of international criminal law such as crimes against humanity and genocide threaten serious consequences for international affairs. Isolated human rights abuses do not.

There is no doubt that many ATS advocates will find it highly objectionable to limit ATS causes of action to violations of international criminal law. It is important to keep in mind, however, that restricting the scope of the ATS does not mean that lesser abuses will not be cognizable in United States courts. It means only that, in general, such claims will be governed by rules of decision derived from municipal law in accordance with normal conflict of law principles.