John Bellinger writes at Lawfare on the 11th Circuit’s dismissal of Alien Tort Statute claims against former senior Bolivian government officials. (Jack Goldsmith served as defense co-counsel.) This case (opinion) involves former government officials, and so does not raise perhaps the most hotly-contested issue in ATS litigation today, corporate liability, on which there is now a signficant circuit split. However, I agree with John that the tone of the 11th Circuit opinion reflects something that Roger Alford has mentioned at Opinio Juris blog – a note of caution entering appellate decisions in ATS cases.
First, the Court shows considerable sensitivity (if not irritation) about being asked to judge security actions taken by foreign leaders, especially in this case where the leaders were “faced with thousands of people taking to the streets in opposition.” Repeatedly invoking the Supreme Court’s call for caution in Sosa, the Court emphasizes that the ATS is “no license for judicial innovation” and that “judicial restraint is demanded.” Moreover, the Court observes that “We know and worry about the foreign policy implications of civil actions in federal courts against the leaders (even the former ones) of nations. And we accept that we must exercise particular caution when considering a claim that a former head of state acted unlawfully in governing his country’s own citizens.”
Second, the Court also emphasizes that Iqbal requires not only specific factual allegations of misconduct but allegations of misconduct by the particular defendants. “We do not accept that, even if some soldiers or policemen committed wrongful acts, present international law embraces strict liability akin to respondeat superior for national leaders at the top of the long chain of command in a case like this one.”
Substitute “China” for “Bolivia” here, and this is my long run policy prediction for the future of the Alien Tort Statute. American judges seem gradually to be understanding that ATS jurisprudence as it developed from the 1980s onwards is not really international law – it is, rather, the “law of the hegemon.” ”Hegemonic” and “international” are not the same thing. (I commend to you Ian Clark’s brand-new study, Hegemony in International Society, the third in his trilogy, though we reach somewhat different conclusions.)
My prediction is that even without embracing a strong hegemon-in-decline thesis, the fact of rising and assertive new great powers, such as China, will cause judges to take more seriously the prudential language of the Supreme Court’s Sosa opinion, and to conclude that it is better to let the political branches decide how much to push human rights norms and in what ways. If at all – regular and faithful readers know my general view that much of what is taken as universal human rights shelters in actual fact under the umbrella of US hegemony, and the decline of hegemony will undermine a great many of those “universal” claims.
That emphasis on Sosa’s prudential concerns will be true most obviously in the case of former government officials. Suppose that a similar suit were brought against former Chinese senior officials following killings, disappearances, torture, etc.in the wake of rural unrest. How far would such a suit get if it were China? The US government took no official position in this Bolivian litigation – a stance that has characterized multiple administrations. I have never understood the unwillingness of US administrations to enter such litigation (save relatively rarely), if only to assert that the government’s views can never be ignored and, really, even ought to be decisive. But it seems to me politically the worst idea of all to fail to enter all but a few of such cases across many many years – and then suddenly assert that the US government’s views are hugely important, but only when China, and its officials or former officials, are being sued in US court. It would be a horrible signal to send to China and the rest of the world.
But given how deeply corporations in China are intertwined with China’s core international strategy of commercial interests in resources and energy – especially in Africa, where it is now the largest trading partner, overtaking the US – corporate liability as an issue in ATS litigation is going to be a political issue as well. After all, the labor and environmental practices of China’s corporations in Africa are not exactly beyond criticism, and the kinds of alleged violations leveled against US and Western corporations in ATS suits, asserted in ATS pleadings as such things as slavery, crimes against humanity, genocide, etc., have a lot more purchase against China’s corporations abroad. But is that really politically possible as a “universal” human rights enforcement strategy through the ATS that depends upon American hegemony – but a hegemony-in-decline? I’m no SCOTUS expert, but given the circuit split over corporate liability, I find it hard not to think that the Court revisit Sosa and its standards. (I should add that I have been an expert witness on the defense side in an earlier ATS case; my declaration in that Agent Orange case before Judge Jack Weinstein, is here at SSRN.)
(Finally, congratulations to Lawfare blog on its one-year birthday!)