International Human Rights Cases Under State Law and in State Courts

Abstract

For over thirty years, victims and survivors of human rights abuses have sought justice in federal court through lawsuits under the Alien Tort Statute (ATS). In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court is currently considering a challenge that could significantly narrow the reach of the ATS by eliminating suits against corporate defendants or holding that the statute does not apply to claims arising out of conduct committed on in foreign countries.But human rights cases will continue in federal and state courts, regardless of the outcome in Kiobel. Litigation will continue in federal courts under whatever remains of the ATS; through supplemental or diversity jurisdiction over claims founded in state law; and under other federal statutes such as the Torture Victim Protection Act or the Trafficking Victims Protection Act. This article focuses on another avenue for human rights litigation: lawsuits in state courts. Courts, commentators, and litigators have long recognized that human rights abuses give rise to common law claims such as wrongful death, assault and battery, and false imprisonment, all within the jurisdiction of the state courts. A state court will have jurisdiction to hear these claims as “transitory torts,” as long as the court has personal jurisdiction over the defendant. Human rights claims were litigated in state courts for decades before Filartiga v. Pena-Irala inaugurated modern ATS claims. Post-Filartiga, human rights claims based on state law have been litigated in both federal and state courts, on behalf of U.S. citizens or when ATS claims were unavailable for other reasons. The rise of human rights litigation under the ATS corresponds with dynamic and rapid developments in international human rights litigation and institutions at the international level, and a concomitant rise in the activities of thousands of human rights organizations throughout the world that monitor and challenge human rights violators, including corporate and other private actors. The Supreme Court cannot end these developments any more than it can repeal the laws of gravity. If the Court limits the availability of ATS actions in federal courts, it will usher in a new era of human rights litigation in state courts across the United States.

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