Yesterday the Supreme Court issued a ruling that virtually ended more than 30 years of human rights litigation in United States courts. Starting with the landmark Filartiga case, foreigners have been able to rely on the Alien Tort Statute to bring suits in American courts against human rights violators, usually their own governments (if plaintiffs could overcome the sovereign immunity barrier), but also corporations complicitous in the violations. (I spare you the legal technicalities here, since this is not a legal blog. For those interested, see here and here. For today’s coverage of the decision in the legal blogosphere, start here.)
The Court held that the statute applies only to violations of international law that occur in United States territory or otherwise have a strong connection with the United States. The decision was unanimous on these facts (which concerned alleged complicity of Shell Corporation with the Nigerian government in human rights violations against Nigerian victims in Nigerian territory). But the concurrent opinion, who agreed with the result because it thought these facts were too remote, would have adopted a more generous interpretation of the statute that would have allowed these lawsuits if they involved foreign policy interests of the United States, including the interest in not allowing our country to become a safe haven for murderers and torturers. Perhaps human rights advocates overplayed their hand by bringing this particular case. Had they not done so, the prior Sosa decision would have still allowed them to litigate less extravagant cases.
Libertarians have already welcomed this decision on the grounds that the United States courts should not be the courts of the world. Even less should courts serve (as Judge Robb once said) as debating clubs for law professors arguing about what is and is not prohibited under international law.
But for myself, I agree with human rights advocates who deplore the decision. Sure, advocates have made mistakes. Often they have been driven by political agendas and attempted to create new human rights out of thin air. But the Filartiga line of cases was not about questionable left-wing welfare rights. They were lawsuits that sought relief for victims of the most truculent violations of classical-liberal negative rights, those that are dear to libertarians. To me, that the courts of this country could, under certain conditions, hear the claims of victims of brutal oppression by governments (sometimes in cahoots with big corporations), victims who would have had no other form of redress, was a badge of honor for the United States, a reminder that this country, in spite of its failings, still remained the beacon of light that was always supposed to be.