Judge Pierre Leval Defends the Alien Tort Statute

 This is old news by now, but Judge Pierre Leval of the Second Circuit has a thoughtful article in the March/April issue of Foreign Affairs (behind a paywall, unfortunately) entitled "The Long Arm of International Law: Giving Victims of Human Rights Abuses Their Day in Court," in which he defends use of the Alien Tort Statute for human rights litigation.  Leval laments the possibility that the Supreme Court may use the Kiobel v. Royal Dutch Petroleum case to "slam shut the door" on human rights plaintiffs. Leval, of course, was part of the Second Circuit panel that heard the Kiobel case, and he vehemently disagreed with the majority's September 2010 decision that corporations may not be held liable for violations of international law, although he agreed that the suit should be dismissed on other grounds.   (Shortly after the decision, I wrote an op-ed in The New York Times entitled "Shortening the Long Arm of the Law" in which I described the diplomatic friction caused by ATS litigation, a theme I expanded upon in my two Supreme Court amicus briefs in Kiobel.)  Leval argues that:

The Supreme Court should continue to interpret the ATS as opening the doors of U.S. federal courts to victims of foreign atrocities who cannot get justice elsewhere, and other countries should adopt laws that open the doors of their courts as well.

Leval reviews but dismisses the principal arguments against allowing courts of any country to exercise universal civil jurisdiction to adjudicate suits for human rights abuses, including that such lawsuits interfere with a country's foreign policy; that they may encourage reciprocal suits in other countries; that they encourage global forum shopping; and that a country has no business hearing suits by foreign plaintiffs against foreign defendants for acts in foreign countries. Perhaps the most interesting part of Leval's article is his advice for human rights advocates trying to encourage the enactment of more universal jurisdiction human rights statutes:

They should start by drafting proposed legislation with modest and realistic goals, building in limitations that may disappoint the most ardent activists but hugely increase the chances of success.   For example, a proposed bill for a country should require the approval of the foreign ministry before each suit can proceed to trial and specify that a suit will be allowed only if the plaintiff has no access to just relief in the country of the defendant or in the country where the abuse occurred....And it should require an initial showing of probable cause to stave off frivolous, politically motivated suits.

In my view, these are reasonable legislative prescriptions.  Indeed, I laid out a similar legislative blueprint in my April 2008 Charney lecture at Vanderbilt Law School entitled "Enforcing Human Rights in U.S. Courts and Abroad: The Alien Tort Statute and Other Approaches."   If these prescriptions were followed, however, they would suggest that the proper course for the Supreme Court is not to use Kiobel to rewrite the ATS as it might have been written but rather to affirm the dismissal of Kiobel and defer to Congress to revise the ATS to define more specifically what cases should be brought, and under what circumstances.