HOW INVOLVED U.S. courts should be in policing human rights abuses overseas is not an easy question. As democratic commitment to human rights has grown, the legal systems of those countries that respect human rights norms have been pulled, to one degree or another, into punishing abuses in those countries that don't. Some European countries and the International Criminal Court now assert universal jurisdiction over war crimes, for example. Even the United States, which is more skeptical of some international law, has not been immune -- particularly in the arena of civil lawsuits. Federal courts have been hearing terrorism-related lawsuits against foreign governments since 1996, and an obscure 1789 law called the Alien Tort Statute has been interpreted in recent years to permit lawsuits against private parties for abuses abroad. During the past few months, this law has become the somewhat improbable subject of a fierce political debate.
The Bush administration this spring asked the U.S. Court of Appeals for the 9th Circuit to rethink its reading of the Alien Tort Statute. The position, outlined in a friend-of-the-court brief, sent human rights campaigners into a tizzy. Human Rights Watch called it "a craven attempt to protect human rights abusers at the expense of victims." The Lawyers Committee for Human Rights described it as an attempt "to run a stake through the heart of a law which has proven to be a valuable tool in pursuing justice for human rights abuses." In an op-ed in the New York Times, Sen. Arlen Specter likewise took issue with the administration's stance. These are serious charges, and in our view they are quite unjust.
The controversy arose from a lawsuit by Burmese nationals brought against Unocal Corp. The lawsuit alleges that Unocal allowed the use of forced labor provided by the Burmese government in the course of a gas pipeline project -- a charge the company denies. If true, the conduct is unpardonable and arguably should give rise to liability in American courts. Unocal is, after all, an American corporation, and Congress has a strong interest in making sure American companies do not abuse people overseas.
But Congress has never passed a law directly authorizing lawsuits such as the one against Unocal. And bringing such lawsuits instead under the Alien Tort Statute creates grave problems of democratic accountability and involves courts in foreign policy judgments, an area in which they have no expertise. International human rights law did not exist when the law was passed; it was probably intended to deal with far more limited issues, such as piracy and attacks on ambassadors. And the statute remained largely dormant until 1980, when federal courts began reading it to authorize lawsuits for human rights abuses worldwide. This reading, in addition to being ahistorical, caused the courts to assume responsibility for wrongs they had no practical power to redress. In a string of Alien Tort Statute cases -- a lawsuit against Bosnian Serb leader Radovan Karadzic over rape and torture during the Bosnian war, for example -- lawsuits became vehicles not for resolving problems between people over whom the courts wielded actual power but for sending moral messages. This is not what the courts are for.
The administration has asked the full 9th Circuit in the Unocal case to reconsider the expansive reading of the Alien Tort Statute -- which authorizes lawsuits on the basis of international law divined from such shaky instruments as unratified treaties and nonbinding U.N. General Assembly resolutions. Judging by a recent decision from the court in another case and from the oral arguments in Unocal, it seems unlikely to do so. But that does not make the administration's position unreasonable; far from a radical assault on human rights, the administration's request is prudent, one the Supreme Court will eventually have to consider. We bow to no one in our contempt for the Burmese junta, and we can certainly imagine a law that would enable lawsuits like the one pending against Unocal. But such a decision is Congress's to make. The courts should not pretend that the legislature spoke to this question 200 years ago.