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

Freedom from torture, cruel, inhuman or degrading treatment is an absolute right, covered and protected in a range of international, regional, and national instruments. While nationally, remedies in cases of violations of the right have resulted in criminal prosecutions and civil claims, in a transnational setting, only criminal justice has been taken forward, partially through the development of universal jurisdiction. ¹

The US jurisdiction is the only exception where civil claims have been filed for transnational torts under the aegis of the Alien Tort Claims Act, 1789, an early law revived through the case of Filartiga v. Pena-Irala. ² But this is not to say that the US alone will face or has faced these kinds of human rights claims with transnational elements. The United Kingdom and Canada for starters have dealt with elements of transnational civil liability in some very well-known claims. ³ While the US experience has been studied, examined, and investigated, what was not pursued in legal scholarship was a larger look at the intersections of international law and transnational human rights litigation, and possibilities in other countries.

Torture as a Tort attempts to do precisely that. It is a collection of twenty-six excellent essays by prominent academics and practitioners worldwide, on the phenomenon of transnational human rights litigation. ⁴ The book is largely focused on jurisprudence that has developed in the United States, Canada, and the United Kingdom. The "central objective" of the book as claimed is "to generate analysis, debate, and dialogue in policy and academic communities, both national and transnational, over the question of the feasibility and legitimacy of transnational human rights litigation. ⁵ While largely seen as an American phenomenon, the bringing together of scholars from around the globe has artfully expanded the reach and value of such litigation.

A working definition of transnational public law or human rights litigation, as relied on by many of the authors, is de-scribed as "the coupling of a substantive notion—individual and state responsibility—with a familiar process—adjudication—and a normative goal—the promotion of universal norms of international conduct." ⁶ Harold Koh's article provides much of the paradigmatic basis for much of the theory on the subject, while not without dissent.

Well-detailed, the table of contents allows for quick identification of themes and topics within the book. It is virtually impossible and unnecessary to describe all the chapters in the book as Craig Scott the editor has already done a marvelous job of it. This is through an excellent introductory chapter, which sets the tone for the rest of the reading. The chapter is a must read especially for the uninitiated and provides a balanced snapshot of the various chapters in the book, and a look at the controversial Arone case in Canada. In this review, I will instead distill key legal moments in the book that provide a flavor and texture of the book.

The book is divided into six parts. Part 1 deals with frames and foundations. Five chapters including the introductory one lay the basis for understanding the key concepts that are expanded and debated through the remainder of the book. Part II deals with jurisdiction and immunity in five chapters, but nevertheless these issues recur in other parts given its centrality in this form of litigation. Part II contains two excellent chapters, namely Chapter 7 by Upendra Baxi and Chapter 8 by Robert Wai. Part III deals with characterization, choice of law and causes of action and contains five chapters that peer into the everyday life of a tort action. Most chapters in this Part find the authors delving into Canadian law providing arguments and justification for courts in that country to venture into accepting jurisdiction and adjudicating these transnational claims. Chapter 15 ends what is, in many respects, a preoccupation with Canadian courts...