Historically, international law consisted primarily of substantive norms, leaving it to individual nation states to determine how to implement and enforce those norms. Human rights class actions in U.S. courts represent one such fusion of international legal rights with domestic judicial remedies. Since the late 1980s, victims of human rights violations have increasingly utilized Federal Rule of Civil Procedure 23 (Rule 23), which governs the certification and conduct of the class action in federal court. In certain respects, the rule embodies a unique feature of United States procedural law. The United States Supreme Court has recognized that class relief is peculiarly appropriate in cases in which the issues involved are common to the class as a whole and turn on questions of law applicable in the same manner to each member of the class. Because human rights abuses are often committed on a widespread and systematic basis, and because many international law norms prohibit collective harms (for example harms directed against a group qua group), the class action device appears, at first glance, to provide a good fit for human rights litigation. And yet, measuring the success of human rights class actions by the number of cases that have achieved certification or proceeded to an enforceable class judgment, or by the satisfaction of victim classes with the process or the results of their efforts, suggests that a number of challenges exist to employing this procedural mechanism in the context of human rights litigation. This Article is an attempt to navigate a course between the unalloyed idealism toward and broad-based critique of the human rights class action in the academic literature. Its destination is a position that accepts that the class action device - notwithstanding its potential for abuse and the challenges to its application - may provide an appropriate litigation device for human rights litigants in certain circumstances.
The Article begins with a brief survey of human rights class actions with an emphasis on the certification phases of the cases. It then analyzes these cases within the context of several long-running debates about the operation and propriety of class actions, by identifying some of the particular advantages and challenges posed by the class action mechanism to human rights litigation. The Article concludes that the class action device is especially well-suited for cases involving the doctrine of command responsibility (for abuses committed by subordinates) or abuses involving a corporate course of conduct or collective harms. However, the Article cautions that, while proceeding as a class action can provide an important vehicle for enforcing human rights norms on behalf of an affected population, it is imperative that class counsel be committed to providing victims with a meaningful experience through litigation and to promoting the principle of human dignity that underlies the human rights edifice.
With these concerns in mind, the Article provides an interpretive framework for pursuing and managing human rights class actions within Rule 23's provisions and established certification doctrines. This framework accepts that courts should construe Rule 23's requirements in light of the unique characteristics of human rights claims and claimants, the clear congressional policy - as expressed by the Torture Victim Protection Act (TVPA) and amendments to the Foreign Sovereign Immunity Act (FSIA) - in favor of U.S. courts adjudicating alleged violations of human rights that occur abroad, and the courts' capacity to adopt procedural innovations as a form of federal common law for violations cognizable under these statutes. In application, this will require class counsel to carefully manage relations with absentee class members in order to ensure a meaningful experience for class members. It may also require courts to adopt both more liberal and more stringent approaches to certain components of Rule 23. Although this framework cannot address all of the challenges that may arise in human rights class actions, it does attempt to address certain procedural obstacles and structural dilemmas that have appeared in the past and that are likely to appear in future cases. It is hoped that these modest recommendations will better enable individuals engaged in human rights litigation - as counsel, litigants, and judges - to capitalize upon the potential of the class action model to enforce universal human rights norms.
2003 U. Chi. Legal F. 279