The Costs of International Human Rights Litigation

International human rights litigation in US courts largely began in 1980, with the Second Circuit's decision in Filartiga v Pena-Irala.1 In Filartiga, two Paraguayans were allowed to sue a former Paraguayan police official for the torture and killing of their family member in Paraguay. The jurisdictional basis for their lawsuit was the Alien Tort Statute, which was first enacted in 1789 as part of the first Judiciary Act.2 This statute provides that federal district courts "shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."3 The original purposes and intended scope of this statute are uncertain. In 1975, Judge Henry Friendly referred to the statute as an "old but little used section" and described it as "a kind of legal Lohengrin... no one seems to know whence it came."4 In Filartiga, however, the Second Circuit held that this statute authorizes US federal courts to adjudicate suits between foreign parties concerning violations of international human rights standards, and that such adjudications are consistent with the federal judicial power authorized by Article III of the Constitution. Since the Filartiga decision, numerous lawsuits have been brought in US courts challenging human rights abuses around the world, ranging from political oppression in Ethiopia, to genocide and war crimes in Bosnia, to violence by the Guatemalan military.5 This litigation is currently undergoing significant expansion, both in terms of the number of cases filed as well as the scope of the claims raised. Recent examples of this litigation include a suit by survivors of the 1989 Tiananmen Square crackdown against Li Peng, the Chinese prime minister at the time of the crackdown; a suit against Robert Mugabe, President of Zimbabwe, for alleged human rights abuses committed in Africa against his political opponents; a suit by a group of Asian 14 comfort women" against Japan alleging that they were kept as sexual slaves during World War II; and a suit by Burmese farmers against various oil companies alleging that the companies were involved in human rights abuses in Burma.6 Many international law scholars have assumed that the rise of international human rights litigation in US courts is an unequivocally positive development. In this essay, I will suggest that, notwithstanding its understandable appeal, this litigation entails significant domestic costs, and possibly international costs as well. These costs, like the benefits of international human rights litigation, are difficult to measure and probably vary from case to case. If nothing else, however, the existence of these costs may suggest that courts should await specific guidance from Congress before allowing further expansions of this litigation. I. THE ATTRACTIONS OF INTERNATIONAL HUMAN RIGHTS LITIGATION It is easy to understand the attraction of this litigation to human rights victims and their supporters. Probably the most significant limitation on international human rights law has been the lack of an effective enforcement mechanism. Despite numerous human rights treaties and purported customary norms of human rights law, abuses of human rights are still common in many countries. Needless to say, the victims of such abuses often are unable to obtain redress in their home countries. Nor is there typically any international tribunal with the authority to adjudicate and resolve their complaints (although the proposed international criminal court may be a modest step in that direction if and when it begins operation). Under such circumstances, international human rights litigation in US courts can be viewed as an imperfect but positive vehicle for giving effect to international human rights standards. To be sure, this litigation has not typically resulted in enforceable judgments. Courts are not likely to grant injunctive relief concerning foreign government activities; nor would they be able to enforce such relief if they did grant it. …