A realist defense of the Alien Tort Statute.

• Author: Knowles, Robert

TABLE OF CONTENTS INTRODUCTION I. THE ATS, REALISM, AND REVISIONISM A. The Alien Tort Statute B. Revisionism C. Sosa and Functional Approaches D. Revisionism and International Relations Theory II. THE REALIST CRITIQUE OF ATS LITIGATION A. Courts' Competence in Foreign Affairs B. Contradictions in the Realist Critique C. The Problematic Functional Arguments Against ATS Litigation 1. Sovereignty Costs 2. Foreign Policy Costs 3. Human Rights Costs III. THE STRATEGIC BENEFITS OF ATS LITIGATION A. The ATS's Strategic Purpose in 1789 B. The ATS's Twenty-First Century Strategic Function IV. WEIGHING THE COSTS AND BENEFITS OF ATS LITIGATION CONCLUSION INTRODUCTION

The Alien Tort Statute (ATS) has fascinated scholars since the Second Circuit roused it from a 200-year-old slumber in 1980, holding that it enabled Paraguayans to sue their own government officials in united states courts for torture committed in Paraguay. (1) This once-obscure provision of the 1789 Judiciary Act-giving federal courts jurisdiction over civil actions "for a tort only, committed in violation of the law of nations"-has become a unique vehicle for global human rights litigation. (2)

Modern ATS litigation has inspired a sharp debate, which continues to rage about both its historical pedigree and the status of customary international law (CIL) as federal common law. (3) But doctrine and history aside, the ATS's critics have also issued increasingly dire warnings about its strategic costs for the United States. Critics contend that ATS litigation irritates both allies and rivals, weakens efforts to combat terrorism, and threatens U.S. sovereignty through the importation of undemocratic norms developed by human rights groups, elite academics, and U.N. bureaucrats. (4) In 2003, the ATS was likened to an "awakening monster" threatening to cause, among other things, a 10% drop in U.S. global trade. (5)

The ATS's defenders have disputed some of these arguments, but they have engaged the cost-benefit critique only sporadically and incompletely. (6) They focus instead on the ATS's role in advancing a global human rights regime. (7) As a result, much of the cost-benefit critique has gone unanswered. This Article is the first to articulate a rational-choice defense of ATS litigation that fully addresses its strategic costs and benefits for the United States.

Critics and defenders of ATS litigation start with radically different assumptions about international relations (IR). The critique of ATS litigation is, for the most part, grounded in realism--the influential view that the global system is anarchic, populated solely by unitary nation-states, and shaped by a small set of great powers balancing one another. (8) For the pure realist, the international system is a set of "billiard balls colliding." (9) Realists argue that nations comply with international law only when it serves their core interests of protecting their security and sovereignty. (10)

Drawing on realism, critics conclude that ATS litigation is inefficient and welfare-negative for the United States. For example, they argue that a controversial ATS lawsuit against multinational corporations for aiding and abetting apartheid-era abuses in South Africa punishes companies with ties to the United States, leading to the loss of investment. (11) Such suits are said to provoke a backlash against the United States in affected countries and antagonize its allies whose multinationals are being sued. (12) Critics contend that U.S. courts, meanwhile, may use the ATS to import into U.S. law "raw" international law norms that have not been approved by the democratic process through legislation or treaty making, weakening U.S. sovereignty. (13)

In contrast, ATS defenders eschew IR realism and instead assume that geopolitics can be influenced by international law independent of state interests, that regime type matters, and that legal enforcement of human rights norms can cause them to be internalized in nations. (14) These assumptions partake of alternatives to realism in IR theory, including liberalism and constructivism. (15) For its defenders, ATS litigation contributes to a global human rights regime that can substantially influence nations' behaviors. (16) The South African apartheid litigation, for example, is said to demonstrate to the world that no one can escape justice for human rights violations. (17) ATS litigation is, for its defenders, one way that international society can strengthen the rule of law and improve governments' human rights practices. (18)

With critics and defenders largely talking past one another, it has seemed that views of international relations dictate one's views of the ATS. But this need not be true. Realist assumptions need not lead one to reject ATS litigation. This Article separates assumptions from their conventional conclusions and offers a defense of ATS litigation from a realist perspective. In doing so, it supplies missing common ground for further empirical studies about the costs and benefits of ATS litigation. The project that this Article begins is especially important because historical materials on the ATS are quite thin, and the relationship between CIL and federal common law is especially murky. (19) Because the debate about doctrine and history remains stalemated, cost-benefit analysis takes on greater significance. (20)

An evaluation of the realist, cost-benefit ATS critique on its own terms reveals three major flaws. First, it is internally inconsistent. Realism holds that nations are unitary, rational actors pursuing their interests. (21) But critics posit that U.S. courts' enforcement of the ATS harms U.S. interests. In doing so, critics prematurely disregard the possibility that the U.S. government as a whole acts rationally to pursue its interests through ATS litigation. Critics fail to consider the positive instrumental role that U.S. courts can play in foreign policy, particularly when the United States is a global provider of public goods seeking cooperation from other nations. (22)

Second, the ATS critique relies on speculation, not actual experience. ATS litigation has resulted in just a handful of collectable judgments (23) and has not provoked an economic or diplomatic crisis for the United States. So, the most trenchant criticism must be based on future, rather than past or present, costs. Yet critics' sometimes-catastrophic predictions--including a 2003 "nightmare" scenario of a $26 billion class action by 100,000 Chinese plaintiffs within the decade--seem far from coming true. (24) Five ATS lawsuits against Chinese government officials, which are a critical case study of ATS litigation's effects, have not caused any visible rupture in the U.S.-China relationship. (25) Moreover, in 2004's Sosa v. Alvarez-Machain, the Supreme Court, addressing the ATS for the first time, limited actionable claims to certain core "specific, universal, and obligatory" human rights norms. (26) These constraints, as well as various jurisdictional and prudential tools available for courts to keep litigation in check and the actual history of ATS litigation, all suggest that it is unlikely to create the foreign policy problems its critics predict. (27)

Moreover, concerns about sovereignty costs are unfounded. Critics fail to distinguish between the wholesale incorporation of customary international law into U.S. domestic law and the very limited application of a few universal, specific, and obligatory norms in Sosa-constrained ATS litigation. (28) Critics also confuse the doctrinal act of applying an international law norm in ATS litigation with its actual effect on the body of U.S. domestic law, which is negligible. Federal courts have not recognized ATS-actionable norms that do not already have counterparts in U.S. law, and they are unlikely to do so. (29)

Finally, critics ignore the strategic benefits of ATS litigation, assuming that its success should be measured solely by its ability to improve human rights conditions worldwide and "judicialize" international relations. (30) By describing its goals in these grand terms, ATS critics set it up for failure. And while the advancement of human rights is a U.S. foreign policy objective, realist critics can reasonably insist that it must yield to more "fundamental" security and economic interests. (31)

ATS litigation may advance not just human rights, but U.S. security and economic interests as well. By accounting for these effects, this Article offers the first comprehensive explanation of the benefits of ATS litigation. (32) As the world's leading power, the United States provides a number of global public goods--such as support for global trade and security guarantees--from which it also benefits. (33) It has the incentive to signal cooperativeness so that it can provide those public goods more easily, not because it is the most powerful state, but because it pays the highest costs when it engages in self-restraint. In its present form, ATS litigation represents a way for the United States to signal restraint more cheaply than by simply complying with international human rights norms. The United States signals cooperativeness in ATS litigation through respect for human rights law while shaping that law in a way that suits its interests and paying few, if any, sovereignty costs.

This Article proceeds in four parts. Part I describes both the doctrinal and cost-benefit aspects of the debate about the ATS and the distinct, underlying assumptions about international relations held by critics and defenders. Part II responds to the functional critique of ATS litigation, explaining why it is self-contradictory and why its claims about the strategic effects of ATS litigation are unfounded. In Part III, I offer the first account of ATS litigation's strategic benefits from a realist perspective. In doing so, it must be noted, I move slightly--but not too far--away from realism. Although a pure realist...