Reviving Human Rights Litigation After Kiobel

2013 ◽  
Vol 107 (4) ◽  
pp. 858-863 ◽  
Author(s):  
Vivian Grosswald Curran ◽  
David Sloss
Keyword(s):  
United States ◽  
Human Rights ◽  
Supreme Court ◽  
The United States ◽  
Human Rights Abuses ◽  
Foreign Countries ◽  
The Supreme Court ◽  
Death Knell ◽  
Alien Tort Statute

In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court held that “the presumption against extraterritoriality applies to claims under the [Alien Tort Statute (ATS)], and that nothing in the statute rebuts that presumption.” The Court preserved the possibility that claims arising from conduct outside the United States might be actionable under the ATS “where the claims touch and concern the territory of the United States ... with sufficient force to displace the presumption against extraterritorial application.” However, the Court’s decision apparently sounds the death knell for “foreign-cubed” human rights claims under the ATS—that is, cases in which foreign defendants committed human rights abuses against foreign plaintiffs in foreign countries.

Insult of Public Officials

2021 ◽  
pp. 388-409
Author(s):  
Christoph Bezemek
Keyword(s):  
United States ◽  
Human Rights ◽  
Supreme Court ◽  
The United States ◽  
Public Officials ◽  
European Court ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court ◽  
Structural Differences

This chapter assesses public insult, looking at the closely related question of ‘fighting words’ and the Supreme Court of the United States’ decision in Chaplinsky v New Hampshire. While Chaplinsky’s ‘fighting words’ exception has withered in the United States, it had found a home in Europe where insult laws are widely accepted both by the European Court of Human Rights and in domestic jurisdictions. However, the approach of the European Court is structurally different, turning not on a narrowly defined categorical exception but upon case-by-case proportionality analysis of a kind that the US Supreme Court would eschew. Considering the question of insult to public officials, the chapter focuses again on structural differences in doctrine. Expanding the focus to include the Inter-American Court of Human Rights (IACtHR) and the African Court on Human and Peoples’ Rights (ACtHPR), it shows that each proceeds on a rather different conception of ‘public figure’.

The Janus face of imprisonment: Contrasting judicial conceptions of imprisonment purposes in the European Court of Human Rights and the Supreme Court of the United States

2020 ◽  
pp. 174889582091196
Author(s):  
Netanel Dagan
Keyword(s):  
United States ◽  
Human Rights ◽  
Supreme Court ◽  
Personal Responsibility ◽  
The United States ◽  
Policy Implications ◽  
Management Tool ◽  
Moral Concept ◽  
European Court ◽  
The Supreme Court

This article considers how the Supreme Court of the United States and the European Court of Human Rights apply, interpret and frame abstract imprisonment purposes, and how they view their relevance to prison conditions, while discussing the constitutionality of prison conditions. The article argues that the Supreme Court and the European Court of Human Rights view, conceptualise and interpret the purposes of imprisonment differently. Regarding the purposes of retribution and rehabilitation specifically, the analysis presented in the article exposes a ‘Janus face’, meaning that each purpose can, and is, interpreted in two different, and almost contrasting ways. The article offers three themes regarding the conceptualisation of imprisonment purposes by the Supreme Court and the European Court of Human Rights: First, the relationship between the purposes of sentencing and imprisonment along the penal continuum, and the role of rehabilitation in a prison regime: should sentencing purposes be relatively static during their implementation in prison, meaning that retributive-oriented sentencing purposes should be pursued (Supreme Court), or should they conversely progress with the passage of time, from retribution to resocialisation as the primary purpose of imprisonment (European Court of Human Rights). Second, the meaning of retributivism in regard to prison conditions: should prisoners pay a debt to society by suffering in restrictive prison conditions (Supreme Court), or is retributivism achieved by atonement and by finding ways to compensate or repair harms caused by crime (European Court of Human Rights). Third, the way in which prison rehabilitation is framed and understood: should prison rehabilitation be seen as a risk management tool aimed purely at lowering recidivism (Supreme Court), or as a moral concept grounded in a prisoner’s ability to change his life and belief in personal responsibility for one’s actions (European Court of Human Rights). Possible theoretical implications and general policy implications are considered in the article.

7 International Human Rights Litigation

2020 ◽  
Author(s):  
Bradley Curtis A
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Federal Courts ◽  
International Human Rights ◽  
Human Rights Abuses ◽  
The Supreme Court ◽  
International Human ◽  
Victim Protection ◽  
Foreign Corporations ◽  
Alien Tort Statute

This chapter focuses on litigation under the Alien Tort Statute, which provides for jurisdiction over suits brought by aliens for torts in violation of international law. The chapter begins by exploring Congress’s likely intent in enacting the Statute in 1789, and how the Statute may have related to Article III of the Constitution (concerning the powers of the federal courts). The chapter then describes how the Statute received little attention until the Filartiga decision in 1980, which allowed for it to be used by aliens to sue other aliens for human rights abuses committed abroad. The chapter proceeds to explore a variety of doctrinal issues relating to this human rights litigation, including the source of the cause of action, the standards for bringing a claim, and the ability to sue corporations. The chapter also considers the contours of the Torture Victim Protection Act, which Congress enacted in 1992 to facilitate certain human rights claims. The chapter then discusses limitations on Alien Tort Statute litigation imposed by the Supreme Court in its 2004 decision in Sosa v. Alvarez-Machain, as well as the rise of suits brought against corporate defendants brought under the Statute. The chapter concludes by discussing the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum, in which the Court substantially curtailed the territorial reach of claims that could be brought under the Statute, and the Court’s 2018 decision in Jesner v. Arab Bank, in which the Court disallowed suits under the Statute against foreign corporations.

Unshackling Foreign Corporations: Kiobel’s Unexpected Legacy

2013 ◽  
Vol 107 (4) ◽  
pp. 829-834 ◽  
Author(s):  
Anupam Chander
Keyword(s):  
United States ◽  
Human Rights ◽  
The United States ◽  
Human Rights Law ◽  
Human Rights Abuses ◽  
Foreign Corporations ◽  
Alien Tort Statute

The Supreme Court’s ruling in Kiobel v. Royal Dutch Petroleum Co. disfavors American corporations. While largely unshackling foreign corporations from the risk of being haled before an American court to answer for human rights abuses abroad, the decision keeps American corporations constrained by human rights law. This inconsistency exists because application of the Alien Tort Statute (ATS), as announced in Kiobel, turns on whether a corporation’s actions “touch and concern” the United States. American corporations are simply far more likely to satisfy that standard than foreign corporations.

The Role of the Judge in Advancing Human Rights - Knight Errant or Slot Machine Automation?

1988 ◽  
Vol 57 (1) ◽  
pp. 29-46
Author(s):  
Justice Michael Kirby
Keyword(s):  
United States ◽  
Human Rights ◽  
Supreme Court ◽  
Common Law ◽  
The United States ◽  
Bill Of Rights ◽  
The Supreme Court ◽  
Long Time ◽  
Protection Of Human Rights

AbstractIn this paper, the author deals with the "role" of judges in "advancing" human rights. He cautions that the needs of different countries will vary. He starts with a reference to the recent failure of Judge Robert Bork to secure confirmation to the Supreme Court of the United States. Bork had been a long time proponent of judicial restraint in the interpretation of the Bill of Rights, urging that protection of human rights should normally be left to the democratically accountable branches of government - the executive and the legislature. After reviewing the theoretical and practical arguments for and against judicial restraint, the author states his own conclusions. These are that, especially where there is a constitutional charter of rights and particularly in common law countries, judges have an inescapable function in developing the law. Their decisions necessarily advance their view of human rights. In human rights cases, they may nowadays receive assistance from international statements of human rights and the jurisprudence developing around such statements. The author appeals for an international approach but acknowledges that this will be difficult for lawyers, traditionally jurisdiction bound. But he warns that there are limits to the activism of the judiciary in controversial human rights cases. Judges themselves do well to recognise these limits both for their legitimacy and their effectiveness. An important modern challenge to the judiciary is that of resolving this dilemma between the pressures for restraint and the urgency of action.

Jesner v. Arab Bank (U.S. Sup. Ct.)

2018 ◽  
Vol 57 (4) ◽  
pp. 628-670
Author(s):  
Laura Conn
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
The Third ◽  
The Supreme Court ◽  
Foreign Corporations ◽  
Corporate Liability ◽  
Alien Tort Statute

On April 24, 2018, the Supreme Court of the United States issued its opinion in Jesner v. Arab Bank. In only the third case in which the Supreme Court has considered the Alien Tort Statute (ATS) since its enactment in 1789, the Court held that foreign corporations may not be defendants in suits brought under the ATS. In foreclosing foreign corporate liability under the ATS, the Court limited the pool of possible ATS claims that can be brought. However, it left open the question of whether U.S. corporations could be sued under the ATS.

In the Supreme Court of the United States: Clara Watson v. Fort Worth Bank & Trust..

1988 ◽  
Vol 43 (12) ◽  
pp. 1019-1028 ◽  
Author(s):  
Donald N. Bersoff ◽  
Laurel P. Malson ◽  
Donald B. Verrilli
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
Fort Worth ◽  
The Supreme Court
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