Not too long ago it appeared as if exercises of extraterritorial (and universal) jurisdiction by domestic courts were going to be the method of choice to hold individual and corporate violators of human rights accountable for their misdeeds. Belgian courts were convicting Rwandans who had partaken in the Rwandan genocide, Spanish judge Baltasar Garzón used Spanish courts to prosecutor General Pinochet and other human rights violators in Latin America, and in the United States individuals used the Alien Tort Statute to obtain financial compensation from foreign and U.S. companies for human rights violations committed abroad.
While the idea is certainly not dead, the trend in the past decade has moved in the opposite direction. Belgium repealed its universal jurisdiction law and introduced greater political control after complaints were brought against Ariel Sharon and George W. Bush. Spain too curtailed its universal jurisdiction law and Baltasar Garzon was expulsed from the judiciary. The International Court of Justice (ICJ) ruled that diplomatic immunity prevented Belgian court from prosecuting the then Minister of Foreign Affairs of the Democratic Republic of the Congo and sovereign immunity means that Italian courts cannot allow suits for compensation from Germany over war crimes committed during World War II. And yesterday the U.S. Supreme Court ruled that the Alien Tort Statute (ATS) does not provide extraterritorial jurisdiction, thus seriously limiting future U.S. lawsuits for human rights abuses committed by companies abroad.
While human rights lawyers are frantically trying to figure out what opportunities remain, it is hard not to see a common trend here that is driven by Realist reasoning, such as that expressed most famously by Henry Kissinger. Both the Belgian and the Spanish parliaments were clearly motivated by a desire to avoid the kind of diplomatic troubles they found themselves in as a consequence of the actions of their courts. International courts such as the ICJ and the European Court of Human Rights have also afforded great respect for sovereignty as the fundamental principle of international relations even in cases that concern fundamental human rights violations such as torture and war crimes.
Yesterday’s Supreme Court opinion is also littered with Realist reasoning. For example, the Court finds that:
The presumption against extraterritoriality guards against our courts triggering such serious foreign policy consequences, and instead defers such decisions, quite appropriately, to the political branches.
A key issue for the court is how to distinguish piracy, for which the ATS was arguably created, from human rights violations committed by corporations. Here is what the Court argues:
[..] applying U. S. law to pirates does not typically impose the sovereign will of the United States onto conduct occurring within the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy consequences.
As Justice Breyer’s concurring opinion points out, piracy does frequently occur within the territorial jurisdiction of another sovereign. The distinction is that the U.S. and most other states have a clear national interest in fighting piracy and there is unlikely to be diplomatic trouble over efforts to hold pirates accountable. The same is not true with alleged corporate human rights abuses abroad. The conclusion that courts should therefore have no jurisdiction over the potentially more controversial issue is as Realist an argument as you will likely find in Supreme Court judgments.