The panel on "Trade, Investment, and Other Implications of ATS Litigation," part of the Georgetown Journal of International Law's 2012 Symposium on Corporate Responsibility and the Alien Tort Statute, invites us to take a broader perspective on transnational human rights litigation and to consider some of the policy implications of these cases.
I would like to suggest five functions that Alien "Fort Statute (ATS) (1) litigation may perform, which can also be thought of as five gaps that ATS litigation can help to fill. Although the ATS is certainly not the only possible way to fill these gaps, it is worth considering the ways in which excessively restricting ATS suits against corporate defendants might impede the performance of these functions.
First, it is generally agreed that in 1789 the ATS was enacted to fill a remedial gap. In particular, although the new Constitution provided a federal forum for suits affecting ambassadors, there were other cases with potential foreign relations implications that could only be heard in state courts. The ATS provided a federal forum for aliens injured by violations of the law of nations. This carried both symbolic and practical value. It had symbolic value because it showed that the United States was a credible international actor not beholden to its constituent parts. It had practical value because federal courts were thought to be more hospitable to claims brought by aliens. John Bellinger and others have suggested that it would be highly ironic if a statute that was originally intended to appease other countries by providing a federal forum for injured aliens was interpreted in a way that could potentially irritate other countries. Yet it would be equally ironic if a statute that was originally intended to provide a federal forum was interpreted in a way that forced claimants to seek recourse in state court instead.
Second, the Filartiga (2) line of cases against natural persons dating from the early 1980s evolved to fill a moral leadership gap. The U.S. brief in Filartiga emphasized the condemnation of torture and the moral leadership of the United States on this issue. The brief indicated that
[B]efore entertaining a suit alleging a violation of human rights, a court must first conclude that there is a consensus in the international community, that the right is protected and that there is a widely shared understanding of the scope of this protection. When these conditions have been satisfied, there is little danger that judicial enforcement will impair our foreign policy efforts. To the contrary, a refusal to recognize a private cause of action in these circumstances might seriously damage the credibility of our nation's commitment to the protection of human rights. (3)
The Filartiga brief took the view that the United States' role as a moral leader in the international community was consistent with, and reinforced by, its provision of a federal forum for adjudicating certain human rights violations.
Third, the Filartiga line of cases also filled an individual accountability gap. The idea that the United States should not provide a safe haven for torturers and persecutors, which is also reflected in U.S. immigration laws, animated the Second Circuit's interpretation of the ATS as reaching torture and extrajudicial killings occurring in Paraguay. By filling this accountability gap, the ATS provided a tool to survivors of human rights abuses who encountered their former abusers on the streets of U.S. cities.
Fourth, starting in the mid-1990s, the Unocal (4) line of cases against corporate defendants and other legal persons and entities helped to fill a distributive justice gap. …