Plaintiff's Diplomacy

UNCIVIL ACTION

Twenty-first-century America is one of the most litigious societies the world has ever known. Civil lawsuits in American courts are used to resolve an ever-expanding list of conflicts. But new forms of litigation can have powerful and wide-ranging consequences, both intended and unforeseen. This is especially obvious in one area long thought outside the power of domestic courts: foreign policy. Increasing numbers of individuals, including torture and terrorism victims, Holocaust survivors, and denizens of the dwindling Amazon rain forest, are now using lawsuits to defend their rights under international law. The defendants in these cases include multinational corporations, foreign government officials, and even foreign states themselves. And whoever wins, the cases are having a powerful impact on America's international relations.

U.S. courts have become the venue of choice for such suits because they offer plaintiffs the benefit of procedural mechanisms, not all available elsewhere, like the class action suit and punitive damages -- not to mention the prospect of unparalleled media coverage and U.S. government involvement. The issues in these cases, from war crimes to the terms of foreign investment, have long been the subjects of treaties and diplomatic parley. But the plaintiffs who initiate them now stand at the intersection of two larger trends. On the one hand, they are the latest addition to the growing chorus of nontraditional actors who have acquired a voice in foreign affairs. On the other, they both contribute to and benefit from a growing determination to hold individuals accountable for violations of international law. Newly emboldened plaintiffs are the civil counterparts to the newly aggressive prosecutors who have pursued criminals like Augusto Pinochet and Slobodan Miloševic.

"Plaintiff's diplomacy," as this new trend toward lawsuits that shape foreign policy can be called, comes in several different forms with very different implications. The first category consists of suits against individuals for grave violations of international law committed in the name of governments. These suits have the salutary effect of opening U.S. courts to foreign victims of abuse and educating American judges about global norms of human rights law.