Plaintiff's Diplomacy

Anne-Marie Slaughter and David Bosco

From Foreign Affairs, September/October 2000

Article preview: first 500 of 4,823 words total.

Summary:  The ever more litigious nature of American society is starting to affect an unexpected area: foreign policy. Increasing numbers of individuals, both American and foreign, are now using U.S. courts to defend their rights under international law in ways impossible just a few years ago. The plaintiffs range from Holocaust survivors to terrorist victims to the inhabitants of tropical rain forests; the defendants include multinational corporations, foreign officials, and even governments. On the one hand, the trend is bringing to justice many long thought unaccountable. On the other, it is making the tricky process of American diplomacy harder than ever.

Anne-Marie Slaughter is J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at Harvard Law School. David Bosco, a freelance journalist, is Codirector of the Harvard Seminar on Ethics and International Affairs and a third-year student at Harvard Law School.

UNCIVIL ACTION

Twenty-first-century America is one of the most litigious societies the world has ever known. Civil lawsuits in American courts are used to resolve an ever-expanding list of conflicts. But new forms of litigation can have powerful and wide-ranging consequences, both intended and unforeseen. This is especially obvious in one area long thought outside the power of domestic courts: foreign policy. Increasing numbers of individuals, including torture and terrorism victims, Holocaust survivors, and denizens of the dwindling Amazon rain forest, are now using lawsuits to defend their rights under international law. The defendants in these cases include multinational corporations, foreign government officials, and even foreign states themselves. And whoever wins, the cases are having a powerful impact on America's international relations.

U.S. courts have become the venue of choice for such suits because they offer plaintiffs the benefit of procedural mechanisms, not all available elsewhere, like the class action suit and punitive damages -- not to mention the prospect of unparalleled media coverage and U.S. government involvement. The issues in these cases, from war crimes to the terms of foreign investment, have long been the subjects of treaties and diplomatic parley. But the plaintiffs who initiate them now stand at the intersection of two larger trends. On the one hand, they are the latest addition to the growing chorus of nontraditional actors who have acquired a voice in foreign affairs. On the other, they both contribute to and benefit from a growing determination to hold individuals accountable for violations of international law. Newly emboldened plaintiffs are the civil counterparts to the newly aggressive prosecutors who have pursued criminals like Augusto Pinochet and Slobodan Milo?evic.

"Plaintiff's diplomacy," as this new trend toward lawsuits that shape foreign policy can be called, comes in several different forms with very different implications. The first category consists of suits against individuals for grave violations of international law committed in the name of governments. These suits have the salutary effect of opening U.S. courts to foreign victims of abuse and educating American judges about global norms of human rights law.

Suits against corporations for violations of international law fall into a second category, one more likely to complicate diplomatic relations and generate pressure on governments from powerful corporate interests. Such suits are an inevitable corollary to the rising power of both civic groups and corporations in world affairs. U.S. courts may have a role to play in the larger political process as the world adjusts to the new power of such corporations. And to the extent that plaintiffs seek to relitigate the role of corporations in historic catastrophes such as the Holocaust, these cases remind new generations of history's human face. But American tribunals alone cannot and should not handle all of the underlying issues that such corporate trials raise.

The third category of litigation is even more troubling. These are suits against foreign governments authorized and encouraged by Congress and filed in an effort to achieve justice for victims of terrorism and oppression. ...

End of preview: first 500 of 4,823 words total.