That’s the gist of this interesting post by Eric Posner (on the Volokh Conspiracy) concerning Harold Koh’s “champion[ing] of the modern (post-1979) use of the ATS [Alien Tort Statute] to impose tort liability on international lawbreakers” (the topic of this post of mine from yesterday). As Posner explains:
Many (most? all?) foreign international lawyers believe that ATS litigation violates international law. They believe that the American tort system is a lunatic asylum in which international law undergoes electroshock therapy and emerges with its shell intact but otherwise unrecognizable—wild-eyed, harboring delusions of grandeur, and babbling a pidgin that incorporates strange American legalisms and pieties. Foreign governments believe that ATS litigation infringes on their sovereignty and complain that it punishes multinational corporations for doing business with them. Both groups believe ATS litigation reflects the typically American blend of naiveté, arrogance, and power that ends up tying foreigners to the rack of American ideals.…
Koh has long supported a type of litigation that probably breaches international law and in any event universally offends foreign opinion.
Indeed, three prominent judges on the International Court of Justice—the president of the ICJ, the English barrister Rosalyn Higgins, and the American judge and human-rights law expert Thomas Buergenthal—have criticized the “very broad form of extraterritorial jurisdiction” that American courts exercise in ATS litigation: “While this unilateral exercise of the function of the guardian of international values has been much commented on, it has not attracted the approbation of states generally.” Democratic Republic of the Congo v. Belgium (Case concerning Arrest Warrant of 11 April 2000) [2002] ICJ Rep 3 at 77 (para 48) (concurring opinion of Judges Higgins, Kooijmans and Buergenthal). Further, the House of Lords has declared ATS litigation “contrary to customary international law.” Jones v. Saudi Arabia, [2006] UKHL 26 (para 99). And, as this Solicitor General’s brief makes clear, Switzerland has condemned the assertion of ATS jurisdiction over its own nationals with regard to their conduct in a third country as “inconsistent with established principles of international law,” and the United Kingdom and Germany have similarly protested that such assertion “infringes the sovereign rights of States to regulate their citizens and matters within their territory.”
These facts provide further support for the notion (set forth by Justice Scalia in his dissent in Roper v. Simmons) that Koh and other American transnationalists use international law selectively as an ideological weapon: they invoke it when it advances their own hard-left ideological agenda and ignore it when it doesn’t.