Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation

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:
PART I: FRAMES AND FOUNDATIONS 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

About the Author :
Craig Scott is Professor of Law and Associate Dean (Academic), Osgoode Hall Law School of York University, Toronto. He was the founding Director of the Nathanson Centre on Transnational Human Rights, Crime and Security and founding editor of the journal Transnational Legal Theory. In 2012-2015, he served as Member of Parliament for Toronto-Danforth in Canada's House of Commons.

Review :
…an invaluable contribution to the international legal literature. The value of the book is not solely in the novelty of its subject matter, but also in the thought-provoking, lucid and (sometimes) critical manner in which it deals with the myriad of issues raised by transnational human rights litigation. It is no exaggeration to state that Torture as Tort is now THE reference point of any inquiry by a non-American common-law lawyer seeking to make sense of the explosion of transnational tort litigation in the United States. Professor Scott is to be congratulated for his Herculean accomplishment This book is a great starting point for those interested in th eemerging field of transnational human rights limitation, and also those working in the area of internationalized criminal and human rights justice. It provides necessary and timely insight into a still emerging field ridden with philosophical, procedural, and substantive minefields. Torture as Tort is ... a good book and, above all, a necessary book. the volume might be thought of as a massive, brilliant firework whose sparks may fall who knows where and result perhaps in a huge conflagration of activity.