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Torture as Tort
Comparative Perspectives on the Development of Transnational Human Rights Litigation
Torture as Tort
Comparative Perspectives on the Development of Transnational Human Rights Litigation
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Description
The controversial nature of seeking globalised justice through national courts has become starkly apparent in the wake of the Pinochet case in which the Spanish legal system sought to bring to account under international criminal law the former President of Chile,for violations in Chile of human rights of non-Spaniards. Some have reacted to the involvement of Spanish and British judges in sanctioning a former head of state as nothing more than legal imperialism while others have termed it positive globalisation. While the international legal and associated statutory bases for such criminal prosecutions are firm, the same cannot be said of the enterprise of imposing civil liability for the same human-rights-violating conduct that gives rise to criminal responsibility. In this work leading scholars from around the world address the host of complex issues raised by transnational human rights litigation.
There has been, to date, little treatment, let alone a comprehensive assessment, of the merits and demerits of US-style transnational human rights litigation by non-American legal scholars and practitioners. The book seeks not so much to fill this gap as to start the process of doing so, with a view to stimulating debate amongst scholars and policy-makers. The book's doctrinal coverage and analytical inquiries will also be extremely relevant to the world of transnational legal practice beyond the specific question of human rights litigation.
Cited in Nevsun Resources Ltd. v. Araya, 2020 SCC 5.
Table of Contents
1. Introduction to Torture as Tort: From Sudan to Canada to Somalia
CRAIG SCOTT
2. Translating Torture into Transnational Tort: Conceptual Divides in the Debate on Corporate Accountability for Human Rights Harms
CRAIG SCOTT
3. International Human Rights Tort Claims and the Experience of United States Courts: An Introduction to the US Case Law, Key Statutes and Doctrines
MICHAEL SWAN
4. Taking Filártiga on the Road: Why Courts Outside the United States Should Accept Jurisdiction Over Actions Involving Torture Committed Abroad
JOHN TERRY
5. Torture: Prevention versus Punishment?
MALCOLM EVANS and ROD MORGAN
PART II:JURISDICTION AND IMMUNITY
6. Taking Jurisdiction in Transnational Human Rights Tort Litigation: Universality Jurisdiction's Relationship to Ex Juris Service, Forum Non Conveniens and the Presumption of Territoriality
ANNE C. McCONVILLE
7. Geographies of Injustice: Human Rights at the Altar of Convenience
UPENDRA BAXI
8. The Commercial Activity Exception to Sovereign Immunity and the Boundaries of Contemporary International Legalism
ROBERT WAI
9. In Search of a Defence of the Transnational Human Rights Paradigm: May Jus Cogens Norms Be Invoked to Create Implied Exceptions in Domestic State Immunity Statutes?
WENDY ADAMS
10. Impunity and the United Nations Convention against Torture: A Shadow Play Without an Ending?
PETER BURNS and SEAN MCBURNEY
PART III: CHARACTERISATION, CHOICE OF LAW AND CAUSES OF ACTION
11. Torture, Tort Choice of Law, and Tolofson
JENNIFER A. ORANGE
12. Characterisation, Choice of Law, and Human Rights
GRAHAM VIRGO
13. The Emperor's New Clothes: Defabricating the Myth of “Act of State” in Anglo-Canadian Law
MARTIN BÜHLER
14. Grounding a Cause of Action for Torture in Transnational Law
SANDRA RAPONI
15. International Human Rights Law and the Tort of Torture: What Possibility for Canada?
EDWARD M HYLAND
PART IV: EVOLVING INTERNATIONAL LAW ON CIVIL RECOURSE AGAINST NON-STATE ACTORS
16.Holding Leaders Liable for Torture by Others: Command Responsibility and Respondeat Superior as Frameworks for Derivative Civil Liability
VALERIE OOSTERVELD and ALEJANDRA FLAH
17. Responsibility and Liability for Violations of Human Rights in the Course of UN Field Operations
CHANAKA WICKREMASINGHE and GUGLIELMO VERDIRAME
18. Linking State Responsibility for Certain Harms Caused By Corporate Nationals Abroad to Civil Recourse in the Legal Systems of Home States
MUTHUCUMARASWAMY SORNARAJAH
19. Revisiting Human Rights in the Private Sphere: Using the European Convention on Human Rights to Protect the Right of Access to the Civil Courts
ANDREW CLAPHAM
20. Civil Remedies for Torture Committed Abroad: An Obligation under the Convention against Torture?
ANDREW BYRNES
PART V:LEGITIMACY, INTERVENTION AND THE FORGING OF NATIONAL HISTORIES
21. Doing the Right Thing? Foreign Tort Law and Human Rights
JAN KLABBERS
22. Just Amnesty and Private International Law
JENNIFER LLEWELLYN
23. Cultural Challenges: Injunctions in Australian Courts and the Right to Demand the Death Penalty under Saudi Arabian Law
BELINDA WELLS and MICHAEL BURNETT
24. Israel and the Recognition of Torture: Domestic and International Aspects
AMNON REICHMAN and TSVI KAHANA
PART VI: ON THE BORDERS OF TORT THEORY
25. An Uncivil Action: The Tort of Torture and Cosmopolitan Private Law
MAYO MORAN
26. Private Law, Constitutionalism and the Limits of the Judicial Role
OLIVER GERSTENBERG
Product details
| Published | 22 May 2001 |
|---|---|
| Format | Hardback |
| Edition | 1st |
| Extent | 776 |
| ISBN | 9781841130606 |
| Imprint | Hart Publishing |
| Dimensions | 234 x 156 mm |
| Publisher | Bloomsbury Publishing |
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