Private Law Remedies for Extraterritorial Human Rights Violations

Engle, Eric (2006) Private Law Remedies for Extraterritorial Human Rights Violations. Dr.Jur., Law, Bremen.

Abstract

The rise of privately enforceable rights in national courts based on substantive international law is an undeniable global phenomenon. Private rights are one response to the necessity of legal institutions to cope with globalisation. Moreover, the existence of privately enforceable rights is one more piece of evidence that the state-centred international system has undergone fundamental and irreversible change in the last 50 years. Privately enforceable rights and corresponding private duties based in substantive international law and enforceable in domestic courts are also evidence that monist theories of international law are empirically more correct than dualist theories. Finally, privately enforceable human rights undermine the claims of realism to primacy in international relations theory. Realism posits that international relations are fundamentally based on power politics and are zero sum. The rise of trading blocs, privatisation, and individual human rights all demonstrate the des-integration of the state due to globalisation and localisation and tend to invalidate the realists. For all these reasons, the issue of private law rights under international law is a timely topic. Our examination centres on one aspect of this complex of problems: the availability and limits of private law remedies to human rights violations – largely, torts. This thesis presents a comparative inquiry into those rights and duties based on international law recognized in national legal orders. Happily, and perhaps surprisingly, tort law can contribute to the defense of human rights. But that possibility is qualified by numerous serious limitations: procedurally, litigants usually invoke universal jurisdiction in cases of human rights violations heard in first world courts. Jurisdiction to adjudicate is usually accepted without problem. But precisely because certain violations of human rights are of universal concern there are numerous jurisdictional limitations on substantive rights while very real are not insurmountable. That is the principal contradiction of international tort law: the theoretical availability of universal rights, contradicted by the practical unavailability of relief, theoretically due to jurisdictional limitations, practically due to judgement proof defendants. The practical and procedural limitations are not however so great as to extinguish or obviate all human rights claims in private law.