Torture As Tort

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The controversial nature of seeking globalized 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 globalization. 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. The book's doctrinal coverage and analytical inquiries will be extremely relevant to the world of transnational legal practice beyond the specific question of human rights litigation.
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Editorial Reviews

The catalyst for this volume was a request to Scott (York U. Law School, Toronto) from Sudanese exiles for advice on transnational avenues for seeking justice against members of their government. The 26 contributions address the frames and foundations of human rights cases; jurisdiction and immunity; choice of law and causes of action; evolving international law on recourse against non-state actors; legitimacy, intervention, and forging of national histories; and the borders of tort theory. Includes tables of cases and legislation. Appends the UN Convention Against Torture, the US code on Alien Tort Claims & Torture Victims Protection Act, provisions of Private International Law (UK, 1995), and an update on developments related to the discussion of the Pinochet case. Distributed in the US by ISBS. Annotation c. Book News, Inc., Portland, OR (
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Product Details

  • ISBN-13: 9781841130606
  • Publisher: Hart Publishing (UK)
  • Publication date: 5/22/2001
  • Pages: 776
  • Product dimensions: 6.14 (w) x 9.21 (h) x 1.63 (d)

Table of Contents

List of Contributors
Table of Cases
Table of Legislation
1 Introduction to Torture as Tort: From Susan to Canada to Somalia 3
2 Translating Torture into Transnational Tort: Conceptual Divides in the Debate on Corporate Accountability for Human Rights Harms 45
3 International Human Rights Tort Claims and the Experience of United States Courts: An Introduction to the US Case Law, Key Statutes and Doctrines 65
4 Taking Filartiga on the Road: Why Courts Outside the United States Should Accept Jurisdiction Over Actions Involving Torture Committed Abroad 109
5 Torture: Prevention versus Punishment? 135
6 Taking Jurisdiction in Transnational Human Rights Tort Litigation: University Jurisdiction's Relationship to Ex Juris Service, Forum Non Conveniens and the Presumption of Territoriality 157
7 Geographies of Injustice: Human Rights at the Altar of Convenience 197
8 The Commercial Activity Exception to Sovereign Immunity and the Boundaries of Contemporary International Legalism 213
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? 247
10 Impunity and the United Nations Convention against Torture: A Shadow Play Without an Ending? 275
11 Torture, Tort Choice of Law, and Tolofson 291
12 Characterisation, Choice of Law, and Human Rights 325
13 The Emperor's New Clothes: Defabricating the Myth of "Act of State" in Anglo-Canadian Law 343
14 Grounding a Cause of Action for Torture in Transnational Law 373
15 International Human Rights Law and the Tort of Torture: What Possibility for Canada? 401
16 Holding Leaders Liable for Torture by Others: Command Responsibility and Respondeat Superior as Frameworks for Derivative Civil Liability 441
17 Responsibility and Liability for Violations of Human Rights in the Course of UN Field Operations 465
18 Linking State Responsibility for Certain Harms Caused by Corporate Nationals Abroad to Civil Recourse in the Legal Systems of Home States 491
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 513
20 Civil Remedies for Torture Committed Abroad: An Obligation under the Convention against Torture? 537
21 Doing the Right Thing? Foreign Tort Law and Human Rights 553
22 Just Amnesty and Private International Law 567
23 Cultural Challenges: Injunctions in Australian Courts and the Right to Demand the Death Penalty under Saudi Arabian Law 601
24 Israel and the Recognition of Torture: Domestic and International Aspects 631
25 An Uncivil Action: The Tort of Torture and Cosmopolitan Private Law 661
26 Private Law, Constitutionalism and the Limits of the Judicial Role 687
App. 1 UN Convention against Torture 705
App. 2 United States Legislation: Alien Tort Claims Act and Torture Victim Protection Act 711
App. 3 UK Private International Law (Miscellaneous Provisions) Act 713
App. 4 Revisiting Human Rights in the Private Sphere, Postscript: Developments Related to Pinochet as of January 2001 717
Index 725
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