Kennan’s Warning on Ukraine
Ambition, Insecurity, and the Perils of Independence
Last month, the Supreme Court handed down its long-awaited decision in the case of Kiobel v. Royal Dutch Petroleum Co., ruling against a group of Nigerians who had used the United States’ Alien Tort Statute to sue an oil company that they allege aided the Nigerian government in torture and executions during the 1990s. For years, the U.S. human rights movement had made use of the ATS, which allows noncitizens to seek civil damages in U.S. courts, to seek compensation for victims of foreign atrocities. The court’s majority concluded, however, that U.S. law generally does not apply beyond U.S. borders unless Congress says otherwise, thus dealing what some feared was a grievous blow to the human rights movement. But the decision might be a blessing in disguise. The ATS never proved that useful in advancing the cause of global human rights. And now, by slamming that door, the Supreme Court’s decision could push the human rights movement to open other ones.
Congress passed the ATS in 1789, and it was largely ignored for nearly 200 years. So forgotten had the law been that in 1975, Henry Friendly, a judge on the U.S. Court of Appeals for the Second Circuit, called the statute a “legal Lohengrin” -- after the character in Arthurian literature whose origins are unknown. Even today, after intense research, little about is known about what it was for. The statute’s language makes clear that the framers intended for it to provide a forum for foreign litigants to receive compensation for violations of international law. But for what conduct, exactly? By Americans or anyone? And taking place where?
After the law spent more than a century in obscurity, the U.S. human rights movement seized on it during the Carter administration, when the idea of international human rights became famous overnight. In those years, for example, Amnesty International made a name for itself campaigning against torture, which, at the time the ATS was passed, would have never been considered a crime under international law. By 1980, though, the U.S. Court of Appeals for the Second Circuit was allowing the ATS to cover modern human rights violations, ruling in Filártiga v. Peña-Irala that a Paraguayan torturer counted as an “enemy of mankind” and could therefore be liable for tort damages under the statute.
The ruling that U.S. courts could provide monetary damages for global victims opened the legal floodgates, and the statute launched a thousand lawsuits. But there were problems. International human rights -- an idea of which the ATS’ framers never conceived -- is a broad concept that could mean many different things, both in moral terms and as inspiration for legal activism. The ATS strategy resulted in a narrow approach that marginalized other options. As American activists interested in protecting human rights homed in on the law, there were roads that were not taken.
In the 1940s, when the United Nations passed the Universal Declaration of Human Rights, the obscure idea of “human rights” implied something very different than it does today. Mainly, it registered a brief consensus around the importance of building welfare states. Today, in an age in which no one is as sure about the state’s duty to provide economic welfare -- jobs, higher standards of living, health and education, even vacations, all of which the Universal Declaration promises -- human rights have been redefined. Activists and governments mainly focus on the concept as a promise of concern about atrocity abroad. Over time, “human rights” no longer suggests expensive local solidarity but a global, and often cheaper, sentiment. The Alien Tort Statute’s career perfectly reflects this development. Unused when national welfare offered the highest ideal, the ATS, after Filártiga, provided a way for American courts to grant relief to those who suffered grievous crime abroad.
There is little evidence, though, that the wave of ATS litigation has put a dent in the world’s suffering. To be sure, it has helped those individual litigants who are able to access the U.S. court system. But systematic proof of its broader impact has never been offered. It certainly does nothing to address underlying political and economic problems.
The ATS has, though, been a boon for U.S. law schools, in which students rightly interested in saving the world have been taught to view the statute as an all-powerful tool. But the popularity of the law might have led them to neglect the fact that it offers only a quick fix for a few people with access to U.S. courts, not fundamental change.
Nothing is wrong with opposing atrocity, of course, but a wider focus on prevention and more systematic redress would be a better way of honoring victims. The human rights movement outside the United States, which has always treated ATS as something of an American curiosity, remains more faithful to the vision of the grandfathers of human rights in the 1940s, for whom concerns about social and economic equality drove a commitment to reordering the world, including at home.
The fact that the increasing use of ATS has coincided with the narrowing of the fight to protect human rights to concern with the worst atrocities means that the statute’s demise may not be a bad thing. After all, its irresistible appeal shaped not just ideas but action. As it became a tool of choice, it also provoked the backlash that led to its apparent death last week. Although the lower courts had grown quite comfortable with using the ATS to protect human rights of foreign victims, the Supreme Court had never fully considered the statute’s reach. (In a 2004 case, Sosa v. Alvarez-Machain, it seemed to assume the validity of the wave of litigation but never directly addressed the extraterritorial reach of the statute.)
But, in recent years, the human rights movement decided to take on some big game. Whereas Filártiga and other early suits targeted individual perpetrators, Kiobel marked a new phase in which corporations, such as Royal Dutch Shell, were sued for their alleged complicity in violence abroad. The wager made sense for plaintiff attorneys seeking deep pockets, but it backfired, not least since corporate defendants could -- and did -- hire the best lawyers money could buy to defend themselves.
Whether corporations could, in fact, be held liable under the ATS was the original question the Supreme Court agreed to answer last year. But cunning enemies of the law, including attorneys for corporations who calculated that the case could prove to be the statute’s undoing, invited the Court to take on the more basic issue of whether the statute was intended to cover any foreign defendant’s alleged crimes abroad. Some suspect that the justices were all too happy to agree to change the subject to avoid the appearance of exempting corporations from liability for foreign war crimes, in an age in which the Supreme Court has drawn fire for allowing them to spend freely in domestic political campaigns. As in Aesop’s fable, the choice to pursue corporations in this way now looks like killing the goose that laid the golden eggs.
In wake of last week’s decision, there have been two popular responses. Conservatives have gloated, and understandably so. Liberals have desperately sought silver linings. Although it is true, as many of them point out, that the court’s concurrences by Justice Stephen Breyer and especially Justice Anthony Kennedy suggest that the litigation is not entirely dead, that would be the wrong lesson to take from the loss.
Far better would be to move on to other ways of protecting human rights -- less centered on courts, less rushed for a quick fix, less concerned with spectacular wrongs to individuals and more with structural evils, and less disconnected from social movements abroad. And there are also better ways to protect humanity in the age of powerful multinational corporations, notably regulatory schemes that connect far more clearly to the originally welfarist meaning of human rights. If it moved in these directions, the human rights movement would give its conservative adversaries reason not to gloat but to tremble.
In the aftermath of the decision, the ATS is, if not dead, greatly diminished. Long live some other version of human rights politics.