Talk of tort law as a tool for tortured

Torture as Tort
February 14, 2003

The language of human rights figures prominently in national and international politics. National security fears generated after September 11 2001 have not altered this. Rights talk does not, of course, always translate into effective enforcement, and disagreement about the precise scope of individual rights persists. Rights are, however, in the news and a secure part of the legal and political mainstream. Nearly everyone now seems willing to "talk the talk", and an impressive bureaucratic system has grown around the normative framework. The interesting debates tend now to occur within human-rights discourse. For example, there is focused discussion on the merits of transnational human-rights litigation.

This book addresses an emerging challenge for those concerned with the protection of human rights. Although the title deals with torture, reflecting many of the contributions, the book will be of interest to those seeking to understand current human-rights practice. Its stated objective is to generate a debate about the legitimacy and merits of transnational human-rights litigation, and it raises numerous questions and gives plenty of scope for discussion and further research. A dialogue has clearly emerged between the worlds of the academic, the legal practitioner and the human-rights activist.

Agreement that torture is a gross violation of human rights is widespread.

This ethical position is also to be found in international and national legal obligations. For good reason, human-rights law reflects an absolutist approach, even if some states insist that there is a "ticking-bomb" justification for the use of torture. But evidence suggests that agreement over normative standards does not necessarily result in best practice.

Reports from credible human-rights groups confirm that torture is still widely used. The focus is therefore on implementing existing standards. The particular focus of this book is the creative use of private law in advancing the cause of human rights. Many of the contributors suggest that this has become one more tool for tackling torture and seeking redress for victims.

Malcolm Evans and Rod Morgan stress the importance of prevention, cautioning against reliance on post-hoc legal remedies. But much of the book focuses on technical legal issues raised by transnational litigation.

The contributions are not solely expositions of existing law. In a highly critical contribution, Upendra Baxi attacks those who work on private international law for not being open to human-rights values. The result, Baxi suggests, is resistance to transnational corporate accountability for human-rights violations.

Inspiration can come from a variety of quarters. Human-rights lawyers looked at transnational commercial cases and asked: if transnational litigation is possible in commercial cases, why not in human-rights cases too? This raises intriguing questions. Should victims of torture be entitled to sue perpetrators in another state? What if there is a national amnesty in existence for those responsible? Beyond torture, what about multinational corporations? Can private law be shaped to deal adequately with these matters? Are these issues best captured within the framework of human-rights law?

These are not new concerns. As Mayo Moran notes, the US federal courts have been adjudicating responsibility for torture and other human-rights abuses for the past two decades. Michael Swan provides a helpful introduction to US law, and John Terry tries to show why the approach in the US should be followed.

Craig Scott outlines the nature of the debate. The problem, as he views it, is how to translate a norm of public international law (the prohibition on torture) into a civil cause of action in national law. He divides the camps into "restrained conservatives" and "activist radicals". The restrained conservative favours a reading of international human-rights standards as matters of public law. Regulation thus occurs through direct and indirect state responsibility. The activist radical insists that human-rights standards are matters for private law application.

The still dominant tendency is to view human-rights law as applicable to states only, although this has been challenged in recent years. In many instances, violations are a result of the exercise of private power - a fact that gains some recognition, for example, in the South African constitution. However, the trend is still to view the regulation of corporate actors through indirect state responsibility. Obligations placed on the state to ensure that human rights are protected, even against the exercise of private power, can have an extensive reach.

Andrew Clapham, well known for his work on the protection of human rights in the private sphere, demonstrates how far it can go. He examines whether international human-rights law places an obligation on the state to grant victims the right to sue in tort where the state has failed to protect them, noting that this might become an important tool for victims. If international human-rights law is to be effective, he argues, it must extend to foreign torturers and thus into the transnational private sphere.

His analysis of the Pinochet affair is a useful reminder of what is at stake.

This collection does not avoid hard questions. Included are chapters that acknowledge that self-determination is essential in any consideration of transnational practices. Jan Klabbers advances a timely critique of transnational human-rights litigation, arguing that not enough thought has gone into it. Genuine questions remain over the legitimacy of the activity, he argues, and he is sceptical about the legalism that underpins this trend. The focus, he states, should be on meaningful political debate.

Difficult legal and political issues also surround the grant of amnesty.

Jennifer Llewellyn tackles these in a thoughtful account, asking if an amnesty is granted in one state how it should be dealt with in a foreign tort claim, and developing an argument in defence of "just amnesties".

Focusing on notions of restorative justice, she argues that amnesties can be justified in the context of a broader truth-finding process. Here she identifies a lack of clarity in public international law. Her chapter confirms the view that more work is needed if we are to understand the relation between transnational activism and processes of transition.

The attention of the human-rights community is now firmly on enforcement.

There are scores of human-rights standards and, although disagreement continues on what they mean, in many instances ambiguity is simply not an issue. Standard-setting has reached, it seems, saturation point. This has prompted increased concern with effective implementation. How can all these norms be enforced? What happens when political will does not exist to support enforcement? What if states, for their own internal reasons, place pragmatic political considerations before universal conceptions of rights?

Whatever the answer to these questions, innovative legal approaches are now being tested in national law. Transnational human-rights litigation has attractions. However, there are also genuine problems. The temptation to label those who ask hard questions as somehow "against human rights" should be resisted. Development of this area of law will depend on careful reflection on current practice, and more work is required to understand precisely what is going on. Further research should focus not only on doctrinal development but also on the factors that facilitate or impede such litigation. At a basic level, this can mean that the empirical evidence is simply not there to support or refute normative arguments advanced. That is not the objective of this edited collection, so it would be unfair to fault the book for not probing a bit further. It should prompt more discussion.

This impressive collection is not a handbook for guidance, although it does include much useful descriptive material. Rather, it contains several thought-provoking chapters that raise difficult questions about transnational human-rights litigation. A constructive dialogue must take place to ensure that these are answered properly. This book should be on the reading list of all those engaged in this discussion.

Colin Harvey is professor of constitutional and human rights law, University of Leeds.

Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation

Editor - Craig Scott
ISBN - 1 84113 060 5
Publisher - Hart
Price - 731
Pages - £69.00

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