The very long arm of American law

The Alien Tort Claims Act presents a danger that the US judicial system will become the world’s civil court of first resort

By Thomas Niles

The Indonesian army's second-in-command is being sued for human rights abuses by troops under his command in East Timor. ExxonMobil, the US oil company, is the object of a lawsuit alleging that it countenanced abuses by government forces near its plant in Indonesia's troubled Aceh region. And a US federal court in New York is considering a multi-billion-dollar lawsuit filed by torture victims against more than 100 companies that maintained operations in South Africa under apartheid.

What do these and many similar lawsuits have in common? They were all brought under a peculiar US statute, the Alien Tort Claims Act, which gives foreign nationals the right to file civil suits in US courts for injuries caused by a violation of "the law of nations".

The Act, adopted in 1789, lay dormant for two centuries before being rediscovered by various groups as a way to bring multi-million-dollar lawsuits - often with the assistance of US trial lawyers - against a growing number of multinational companies and foreign nationals, alleging direct involvement or complicity in human rights abuses overseas.

Quite apart from the merits or otherwise of any of the recent cases brought under the Act, it is important to recognise that its misuse may well come back to haunt US foreign policy - and even US public officials themselves.

Many of the cases brought under the Act relate to the use of force by a sovereign government against people who are, in the eyes of local authorities, breaking the law. But while a foreign government's behaviour may often be inconsistent with US standards of law and morality, to seek to override the power of sovereign governments to enforce their own laws is, at best, problematic.

What might happen if US courts increasingly assert jurisdiction over such cases? The most likely outcome is that other countries will start to follow this lead. After all, that has already happened in other areas such as antitrust law, where the "effects" doctrine developed in the US has been widely adopted abroad. As a result, US public officials, and even ordinary citizens, would be put at risk.

Consider the death penalty, which is legal in the US but is viewed as a serious human rights violation in much of the rest of the world. Suppose a US governor from a state that permits capital punishment - or a judge who presided over a case resulting in an execution, or a member of a jury that voted to convict - travelled to a country that asserted jurisdiction over alleged human rights violations abroad, as Belgium does today under law passed in 1992. Under the expansive view of such laws now being promoted in US courts, it is entirely possible that such people could be sued by a relative of the deceased and forced to provide restitution.

Furthermore, the use of excessive force - or complicity in its use - by law enforcement agencies is at the root of many of the cases brought under the Act. Many countries already criticise American police for using excessive force. Consider what they might do if provided with legal authority to try US nationals. Could Janet Reno, the former US attorney-general, be hauled into court by a relative of one of the Branch Davidians who died in the 1993 stand-off in Waco, Texas?

Unless Americans are prepared to accept these risks, as well as the accompanying danger that the US judicial system will become the world's civil court of first resort, the US government needs to act now to curb misuse of the Alien Tort Claims Act.

The writer is president of the United States Council for International Business, a New York-based industry group