A Theory and Assessment of Transnational Human Rights Litigation
| Author | François Larocque |
| Profession | University of Ottawa Faculty of Law |
| Pages | 287-321 |
CHAPTER
EIGHT
A
Theory
and
Assessment
of
Transnational
Human
Rights
Litigation
“
While
this
unilateral
exercise
of
the
function
of
guardian
of
international
values
has
been
mu¿h
commented
on,
it
has
not
attracted
the
approbation
of
States
generally.
’
’
—
Judges
Higgins,
Kooijmans,
and
Buergenthal
1
A.
INTRODUCTION
This
final
chapter
seeks
to
achieve
two
things.
First,
Section
B
sets
out
a
theoretical
framework,
modelled
on
the
analogy
of
translation,
by
which
the
particular
adjudicative
mode
that
is
engaged
by
US
trans
national
human
rights
litigation
can
be
described
and
situated
within
a
wider
judicial
tradition.
More
specifically,
it
will
be
argued
that
Filártiga-type
cases
engage
national
judiciaries
in
a
form
of
supervisory
role
—
which
will
be
termed
“
transnational
judicial
review
”
—
that
is
rooted
in
the
historical
function
of
common
law
courts
as
declarers
of
the
law,
expounders
of
the
constitution,
and
righters
of
wrongs.
Under
this
view
of
transnational
human
rights
litigation,
national
courts
as
sume
the
function
of
a
decentralized
international
judiciary
in
matters
involving
the
common
interests
and
values
of
humanity.
Second,
using
this
chapter
’
s
epigraph
as
a
starting
point,
Section
C
examines
the
perceived
problems
and
advantages
of
transnational
human
rights
liti
gation
as
exemplified
by
the
US
experience
under
ATCA
and
the
TVPA.
i
Case
Concerning
the
Arrest
Warrant
of
n
April
2000
(Democratic
Republic
of
Congo
v.
Belgium),
[2002]
I.C
J.
Rep.
3
at
para.
48,
concurring
opinion
of
Judges
Higgins,
Kooijmans,
and
Buergenthal
[Arrest
Warrant
Case].
287
288
CIVIL
ACTIONS
FOR
UNCIVILIZED
ACTS
As
will
be
seen,
there
are
significant
problems
with
the
US
model.
It
will
nevertheless
be
argued
that
there
exists
a
range
of
cases
in
which
ATCA-type
jurisdiction
may
be
constructively
asserted
to
complement
existing
international
legal
enforcement
mechanisms.
B.
TRANSNATIONAL
HUMAN
RIGHTS
LITIGATION
’
S
PARTICULAR
MODE
OF
ADJUDICATION
i)
Questions
of
Translation
The
use
of
metaphor
in
international
legal
writing
is
sometimes
help
ful.
2
In
discussing
the
desirability
and
portability
of
US-style
trans
national
human
rights
litigation,
Craig
Scott
and
Beth
Stephens
have
both
made
use
of
the
metaphor
of
“
translation
”
to
describe
the
chal
lenges
involved.
Scott
’
s
enquiry
focuses
on
vertical
normative
trans
lation,
asking:
“
Can
[an
international]
human
rights
norm
...
be
translated
into
a
civil
cause
of
action
within
a
domestic
legal
system?
”
3
One
of
the
central
issues
for
Scott
is
that
of
translating
the
“
mes
sage
”
of
human
rights
accountability
expressed
at
international
law
(the
language
of
origin)
into
an
enforceable
paradigm
at
national
law
(the
target
language).
For
her
part,
Stephens
asks
“
why
there
have
been
no
Filártiga
lawsuits
in
other
countries.
”
4
Developing
the
metaphor
in
another
direction,
she
argues
that
one
should
not
seek
to
produce
a
lit
eral
translation
(
“
exact
duplicates
”
)
of
Filártiga
but
rather
to
recognize
that
the
“
message
”
of
human
rights
accountability
can
be
rendered
in
other
legal
systems
through
procedures
appropriate
to
each
country.
The
Second
Circuit
understood
its
decision
in
Filártiga
to
be
“a
small
but
important
step
in
the
fulfilment
of
the
ageless
dream
to
free
all
people
from
brutal
violence.
”
5
But
perhaps
more
accurately,
it
can
be
stated
that
Filártiga
was
a
small
but
novel
step
on
the
well-trodden
path
2
Stephen
Toope,
“
The
Uses
of
Metaphor:
International
Law
and
the
Supreme
Court
of
Canada
”
(2001)
80
Can.
Bar
Rev.
534;
Philip
Allott,
“
Language,
Method
and
the
Nature
of
International
Law
”
(1971)
45
Brit.
Y.B.
Int
’
l
L.
79.
3
Craig
Scott
ed.,
Torture
as
Tort:
Comparative
Perspectives
on
the
Development
of
Trans
national
Human
Rights
Litigation
(Oxford:
Hart,
2001)
at
45.
4
Beth
Stephens,
“
Translating
Filártiga:
A
Comparative
and
International
Law
An
alysis
of
Domestic
Remedies
for
International
Human
Rights
Violations
”
(2002)
27
Yale
J.
Int
’
l
L.
1
at
3
[Stephens].
5
Filártiga
v.
Peña-lrala,
630
F.2d
876
at
890
(2d
Cir.
1980)
[Filártiga].
eight
:
A
Theory
and
Assessment
of
Transnational
Human
Rights
Litigation
•
289
of
US
civil
litigation.
Other
nations
need
not
follow
this
path.
Other
means
—
such
as
official
inquiries,
administrative
legal
measures,
or
criminal
prosecutions
—
may
be
more
suited
to
other
legal
cultures.®
With
its
established
tradition
of
public
interest
litigation,
contin
gency
fee
agreements,
flexible
jurisdictional
rules,
provisions
for
class
actions
and
default
judgments,
the
US
offers
litigants
a
highly
special
ized
framework
in
which
to
make
and
defend
civil
claims.
6
7
The
UK
and
Canada
also
possess
many
of
the
same
pro-claimant
features
that
facilitate
transnational
human
rights
claims
in
the
US.
Indeed,
the
existence
of
legal
aid
and
pro
bono
legal
counsel
in
the
UK
were
deter
minative
factors
in
the
retention
of
jurisdiction
in
the
Connelly
and
Cape
cases.
8
Similarly,
in
Bouzari,
public
interest
groups
intervened
in
support
of
the
plaintiff
against
the
Islamic
Republic
of
Iran,
which
was
noted
in
default
for
not
defending
the
claim
in
Canada.
9
Though
not
to
the
same
extent
as
the
US
legal
system,
Canada
and
the
UK
are
no
strangers
to
public
and
private
litigation
and
it
would
appear
that
the
most
significant
obstacle
to
transnational
human
rights
claims
in
those
countries
is
the
absence
of
ATCA-style
legislation
authorizing
jurisdic
tion
and
lingering
judicial
uneasiness
with
the
relative
novelty
of
the
cases.
10
This
state
of
affairs
is
not
likely
to
last.
For
one
thing,
as
noted
in
Chapter
7,
there
is
currently
draft
legislation
under
consideration
in
the
UK
and
Canadian
Parliaments
aimed
at
creating
civil
causes
of
action
for
extraterritorial
torture
and
terrorism,
respectively.
11
While
some
are
private
members
’
bills
that
stand
little
chance
of
becoming
law,
the
Canadian
proposal
with
respect
to
terrorism
is
a
government
bill,
which
means
it
should
enjoy
the
required
legislative
support
to
be
enacted.
Time
will
tell.
Taken
together,
they
evince
an
increasing
6
Stephens,
above
note
4
at
25.
7
Ibid,
at
16.
8
See
Chapter
6,
Section
C(2).
9
For
example,
in
Bouzari
v.
Islamic
Republic
of
Iran
(2004),
71
O.R.
(3d)
675
(C.A.),
Amnesty
International
and
Canadian
Lawyers
for
International
Human
Rights
both
intervened
for
the
plaintiff.
10
Anne
C.
McConville,
“
Taking
Jurisdiction
in
Transnational
Human
Rights
Tort
Litigation:
Universality
Jurisdiction
’
s
Relationship
to
Ex
Juris
Service,
Forum
Non
Conveniens
and
the
Presumption
of
Territoriality,
”
in
Scott,
ed.,
Torture
as
Tort,
above
note
3
at
157;
International
Law
Association,
Committee
on
International
Human
Rights
Law
and
Practice,
“
Report
on
Civil
Actions
in
the
English
Courts
for
Serious
Human
Rights
Violations
Abroad
”
(2001)
2
Eur.
H.R.L.
Rev.
129.
11
See
Chapter
7,
notes
70-89
and
accompanying
text.
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