ATS Reversal Watch: M.C. v. Bianchi

I thought I’d drag myself out of blogger purgatory to make a brief comment on a recent decision out of the Eastern District of Pennsylvania that I noticed earlier this evening. In M.C. v. Bianchi, Chief Judge Bartle denied a Motion to Dismiss on the basis that ATS jurisdiction can be conferred over non-state actors based purely on the heinousness of their actions. Assuming there is an appeal, I think it’s a safe bet the Third Circuit will swat this one down once it is reviewed, because the decision’s basis under international law is rather shaky.

My gut feeling is this is just a case of hard facts make bad law, because Defendant Anthony Bianchi, millionaire and convicted serial child rapist, is one of the least sympathetic litigants you could possibly have, and it’s not hard to see how one might be very strongly motivated to extend any assistance available to the unnamed minor plaintiffs.

But being a really horrible person does not magically invoke the jurisdiction of the ATS. Judge Bartle seems to have taken the requirement that only ‘extreme’ violations of international law are sufficient to invoke ATS liability to mean that, the more morally heinous an act is, the greater the likelihood is that there exists a cause of action for a tort in violation of the law of nations:

“Given the young age of his victims and the frequency with which Bianchi engaged in these heinous acts, this case is extreme enough for subject matter jurisdiction to exist under the ATS. What occurred here is a serious transgression of international law that is ‘specific, universal, and obligatory.’ Under all the circumstances, we conclude that Bianchi’s sexual assault of children through sex tourism falls within the ‘very limited category’ of claims cognizable under the ATS as a violation of the law of nations.” Quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 732.

To put it charitably, the decision is something of an international law train wreck. Its primary justification seems to be the existence of a international instrument condemning acts like those committed by Bianchi:

“[I]n support of this court’s jurisdiction, plaintiffs point to the Optional Protocol on the Rights of the Child, Sale of Children, Child Prostitution and Child Pornography (“Optional Protocol”).” … The Optional Protocol bans the ‘offering, delivering or accepting, by whatever means, a child for the purpose of … [s]exual exploitation of the child.’ S. Treaty Doc. No. 106-37 at art. 3(1)(a)(i). It also declares that parties ‘shall ensure that all child victims of the offences described in the present protocol have access to adequate procedures to seek, without discrimination, compensation for damages from those legally responsible.’ Id. at art. 9(4).

Although the U.S. is a signatory to the Optional Protocol, because that treaty is not self-executing, Plaintiffs had to go the law-of-nations route for the ATS suit, rather than relying on the treaty alone. But calling something ‘customary international law,’ even if it were, does not mean that it automatically comes with a cause of action against private parties. Judge Bartle notes that “‘[The Optional Protocol] also provides that ‘each State Party shall take measures, where appropriate, to establish the liability of legal persons’ for these offenses, both criminal and civil,” and then blithely goes on to assume, “[t]hus, the Optional Protocol clearly contemplates the liability of private individuals.” But that’s not what it says at all. The treaty clearly contemplates obligating nations to prohibit child sex crimes as a matter of domestic law, not making child sex crimes in themselves a violation of international law.

Other than the Optional Protocol, the decision’s basis for finding a violation of international law is based on the following:

“[C]ourts across the United States have acknowledged that child sex tourism … is uniformly admonished by the international community as reprehensible.”

“[Bianchi’s] crimes represent a global problem, whereby individuals from developed nations travel to less developed nations to prey on young children from impoverished communities.”

“Courts have been willing to recognize claims by children under the ATS, even where the same claims would not be actionable if brought by adults.” Citing (questionably) Roe v. Bridgestone Corp., 492 F. Supp. 2d 988, 1019-22 (S.D. Ind. 2007).”

But none of this is sufficient to establish that Bianchi’s crimes were “a serious transgression of international law that is ‘specific, universal, and obligatory.'” His actions were evil and illegal, but not a matter of the law of nations.

Judge Bartle’s judicial over-reach in the name of universal jurisdiction is by no means an isolated decision. There is in fact fairly ample, if scattered, support for the idea that jurisdiction over Bianchi would be proper, under the argument that international commercialized child rape (I cannot bring myself to use the monstrously inadequate euphemism of ‘sex tourism’) is a modern crime akin to the traditional offenses of piracy and slavery. Eugene Kontorovich [PDF] has called this claim the “piracy analogy”. The piracy analogy is

the argument that [universal jurisdiction] is based on principles implicit in the earlier, piracy-only universal jurisdiction. According to the piracy analogy, international law treated piracy as universally cognizable because of its extraordinary heinousness. Universal jurisdiction was never about piracy per se, the argument goes, but about allowing any nation to punish the world’s worst and most heinous crimes. Thus universal jurisdiction over human rights violations is simply an application of the well-settled principle that the most heinous offenses are universally cognizable and not, as critics contend, a radical and dangerous encroachment on nations’ sovereignty.

The Bianchi decision is a text-book example of the piracy analogy in action, and of the mistaken belief that the world’s evils are best fought by expanding the nebulous jurisdictional reach of international law to encompass them. However, while states can and do use international law as a means of combating offenses that are universally condemned, as they have with the Option Protocol on the Rights of the Child, the mere fact that an offense can be regulated by international law cannot transform it into a violation of international law.


The International Law Scholarship of Samuel Clemens

Mark Twain’s recently re-released The Treaty With China: Its Provisions Explained is a fascinating read. As the Journal of Transnational American Studies, Spring 2010, writes:

A good candidate for ‘the most under-appreciated work by Mark Twain’ would be ‘The Treaty With China,’ which he published in the New York Tribune in 1868. This piece, which is an early statement of Twain’s opposition to imperialism and which conveys his vision of how the U.S. ought to behave on the global stage, has not been reprinted since its original publication until now.

Mark Twain’s approach to the rights of “the Chinaman” were rather exceptional for his time period, and his commentary on the treaty is not what I would have expected. I hadn’t known of Twain’s interest in international law, but I feel as if his opening comments on the 1868 Treaty ought to be inscribed on the inside cover of an international law casebook somewhere: “Apart from its grave importance, the subject is really as entertaining as any I know of.”

The text of the treaty itself and Twain’s comments on it are equally fascinating, if for no other reason then for the jarring contrasts displayed between the treaties of today and the treaties of the 1800s, as well as for Twain’s own curmudgeonly and yet empathetic racism. On the portion of the treaty allowing for naturalization of Chinese residents, he writes:

The idea of making negroes citizens of the United States was startling and disagreeable to me, but I have become reconciled to it; and being reconciled to it, and the ice being broken and the principle established, I am now ready for all comers. The idea of seeing a Chinaman a citizen of the United States would have been almost appalling to me a few years ago, but I suppose I can live through it now.

This is, keep in mind, the opinions of a man who was a radical for his day, and who was considered to be something of an extremist on the issue of racial equality.

Twain’s droll asides about tangential matters of international affairs are also entertaining:

It will be observed by Article 3 that the Chinese consuls will be placed upon the same footing as those from Russia and Great Britain, and that no mention is made of France. The authorities got into trouble with a French consul in San Francisco, once, and, in order to pacify Napoleon, the United States enlarged the privileges of French consuls beyond those enjoyed by the consuls of all other countries.

But one part of the essay that caught my eye was Article 4, which provides for freedom of religion for both U.S. and Chinese citizens.

The old treaty protected “Christian” citizens of the United States from persecution. The new one is broader. It protects our citizens “of every religious persuasion”—Jews, Mormons, and all. It also protects Chinamen in this country in the worship of their own gods after their own fashions, and also relieves them of all “disabilities” suffered by them heretofore on account of their religion.

The Tianjin Treaty of 1858 was an unequal treaty, entered into at the conclusion of the first part of the second Opium War. Although a series of bilateral treaties were created, France, England, the U.S., and Russia were all involved in forcing the Chinese Empire into granting each of them a large number of concessions. It also provided for the protection of Christian missionaries and their converts in China:

ARTICLE XXIX: The principles of the Christian religion, as professed by the Protestant and Roman Catholic churches, are recognized as teaching men to do good, and to do to others as they would have others do to them. Hereafter those who quietly profess and teach these doctrines shall not be harassed or persecuted on account of their faith. Any person, whether citizen of the United States or Chinese convert, who, according to these tenets, peaceably teach and practice the principles of Christianity, shall in no case be interfered with or molested.

Now there’s an interesting piece of treaty work. As far as I am aware, it was never the subject of a court case, although it would have been extremely interesting to see the outcome if it had been. Under modern application of the First Amendment, this portion of the treaty is clearly a violation of the Establishment Clause, and therefore ineffective as a matter of domestic law. However, the law only puts an obligation on a foreign state, and not on the U.S. — on both a domestic and international level, the U.S. is not required to enact any laws or take any actions as a result of this Article, so it is extremely unlikely any plaintiff would have ever had standing to challenge it. But even if it is Constitutionally null, such a treaty would still exist on the international plane, leaving China with an obligation to the U.S. to protect its Christian converts.

More than anything, I love the fact that in 1858, the idea of international law being used to impose duties upon a nation with regard to how it treated its own citizens had already been established. Of course, it only restricts how China is to treat its Christian citizens, but still — a limited international law recognizing freedom of religion did exist, in the mid-19th century. And the 1868 version of the treaty is even more expansive, although it provides only for the protection of non-Christian Americans in China. Non-Christians in China were, alas, left unregulated by international law. Still, Twain seemed to feel that the protection of religious freedoms in China was already well provided for:

China is one of the few countries where perfect religious freedom prevails. It is one of the few countries where no disabilities are inflicted on a man for his religion’s sake, in the matter of holding office and embezzling the public funds. A Jesuit priest was formerly the Vice-President of the Board of Public Works, an exceedingly high position, and the present Viceroy of two important provinces is a Mohammedan. There are a great many Mohammedans in China.

Interestingly, Twain had a much less favorable opinion on the degree of religious tolerance displayed in America:

If a Chinese missionary were to come disseminating his eternal truths among us, we would laugh at him first and bombard him with cabbages afterward. We would do this because we are civilized and enlightened. We would make him understand that he couldn’t peddle his eternal truths in this market.