Title: Human Rights Law Meets Private Law Harmonization: The Coming Conflict
Abstract: In the transformation of international law that took place in the twentieth century, two movements in particular were persistent agents of change: the international human rights movement and the private law unification movement. Both promoted a more liberal and cosmopolitan conception of international law. Both envisioned an international legal order without the nation state's traditional monopoly on rights and duties. Both created new international institutions. Both were influential in adapting international law's Westphalian structure to a world now defined by decolonialization, democracy, and market economies. Notwithstanding these early similarities, the two movements have drifted apart, and now increasingly they are poised for conflict. This conflict is especially visible in their plans for the future of national courts. One movement promotes a future of transnational judicial cooperation brought about by harmonizing the procedural rules of national courts and discouraging judicial unilateralism and overreaching. The other movement sees a future of more credible enforcement of human rights norms, with national courts at the front lines, acting unilaterally and non-traditionally where necessary. For the human rights movement, the procedural straight-jacket prescribed by harmonization undermines the ability of domestic courts to expose and remedy human rights abuses. Conversely, when the human rights community urges novel approaches to evidence and choice of law, decades of harmonization of private international law are thrown in doubt. Thus far the relationship between private law unification and human rights has received little scholarly study. In launching such an endeavor, this work proceeds in four stages. Part I traces the changes in international law wrought by a century of sustained, wide-ranging efforts to harmonize jurisdictional rules, choice of law rules, and other aspects of national procedural law. Behind these efforts are the preferences of transnational business, the need to reduce friction among national court systems increasingly presented with transnational litigation, and the accelerating process of legal integration in the European Union. This harmonization effort produced an extensive collection of private law treaties by the century's end, along with a sense of optimism about juridical harmonization as a response to economic globalization. As the 21st century began, the projects launched by private international law organizations had grown more ambitious: global rules of jurisdiction, global principles of contract law, transnational rules of civil procedure, a global framework for transnational bankruptcies, a global regime for recognizing and enforcing foreign judgments. Part II turns to the human rights movement, which also began by harmonizing and codifying. Its early accomplishments were in drawing together aspects of divergent rights traditions into a set of quasi-canonical texts, exemplified by the Universal Declaration of Human Rights. More recently, however, the human rights community has moved from codification to enforcement and accountability, to punishing violators and compensating victims. Its center has moved from the treaty monitoring process to prosecution and litigation in national courts. Having identified domestic courts as the institution best situated to do what monitoring committees cannot do - put specific violators on trial and compensate their victims - human rights advocates now seek to endow domestic courts with new tools to do the job more effectively: broader jurisdictional powers, more discretion in choosing the appropriate statute of limitations and substantive law, less deference to courts and amnesty laws in the place where the wrong took place. The human rights movement's new focus on refitting domestic courts comes just as the proponents of private law harmonization pursue the more ambitious projects noted above. Through a discussion of hypothetical cases, Part III shows that the previously latent tension between the two movements is now at the surface and extends beyond the realm of jurisdiction. The examples show that the two movements increasingly emphasize different kinds of justice. One demands an international legal order reliably able to deliver substantive justice, even if the existing international structure and set of institutions must undergo triage in order to accomplish this. The other seeks an international legal order of stability and consistency, of cooperative relationships among domestic courts based on channeling transnational litigation to the most appropriate forum and applying harmonized procedural rules specified in advance. If international human rights norms continue to be applied primarily in domestic courts for the foreseeable future, is the conflict between the two movement destined to intensify? Can the unification movement make good on its promise of greater certainty and predictability in international adjudication while the human rights movement continues to work toward a legal order with no haven for the tyrant and no cache for looted assets? Part IV concludes that the conflict is likely to intensify so long as both movements attempt to reshape the same domestic courts to fulfill two new and different functions. In the long run, the tension is best addressed by creating a coherent, adequately-funded system of international tribunals to adjudicate atrocity cases. Such a momentous step, however, seems a long way off. In the short term, a new scholarly endeavor is needed: the articulation of principles of procedural law to guide ordinary domestic courts in adjudicating transnational litigation alleging grave human rights offenses.
Publication Year: 2005
Publication Date: 2005-01-01
Language: en
Type: article
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Cited By Count: 5
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