Alford’s "Retail Human Rights Litigation"

Welcome Roger and thanks for starting us off this week with a great topic.

IJM’s strategy is very interesting. While I don’t know of other groups applying litigation strategy exactly like IJM, I do note that U.S. civil rights groups have looked into ways in which human rights norms can affect U.S. litigation, even if you are not suing under a treaty. I am not referring to simply trying to get courts to cite to treaties as persuasive evidence (a topic we have hashed over repeatedly at Opinio Juris) but rather, suing under U.S. law and then making an argument that, under the Charming Betsy doctrine of statutory interpretation, the U.S. statute must be read, if possible, in conjunction with related treaties. The intended result is to have the statute interpreted in a manner as consistently as possible with international human rights norms and thereby allowing those norms to inform domestic adjudication. That’s the closest analogy I can think of to what IJM seems to be doing.

In either case, there needs to be an openness of both the litigators and the judiciary to referring to international norms even if the suit is technically not arising under a specific treaty or a statute like the Alien Tort Statute that opens the door to customary international law.

So a question I have for Roger is this: in the IJM model, how central is international law to the argument being made by the attorneys to the judges? Are the international attorneys motivated by international human rights norms, but only arguing domestic law to the judges and, as such, the judges aren’t cognizant of international law in writing their judgments? Or is it that the judges are learning about international legal standards and consciously adopting these standards in their reasoning? Both scenarios are interesting: the first focuses on the socialization of only the bar while the second has both that bar and the bench becoming more literate in international law.

Truth in advertising disclaimer: I am finishing an article on a related topic—whether transnational litigation and arbitration (that is, between a State and a subnational actor such as an individual or a corporation, and including poroceedings as varied as investor-State arbitration to an individual suing a country before the European Court of Human Rights) causes an influx of international norms into the domestic legal systems of transitional societies. Of particular interest is not whether such litigation or arbitration directly causes a change in the domestic law, but whether the process of such dispute resolution changes the habits of the bar and the bench such that they refer to and accept international norms to a greater extent than previously.

In these types of proceedings we see domestic lawyers and judges each becoming involved in a variety of ways (for example: domestic lawyers may argue claims before these tribunals or at times sit as arbitrators; domestic judges may sit as arbitrators or may be involved in proceedings to enforce an award, etc.). The question of who is getting socialized (judges and/or lawyers) can affect, in certain instances, whether the norms being described and applied in the transnational context become accepted principles in the domestic context.

So, in what you have seen, are the judges consciously picking up cues from international law or is it primarily domestic lawyers who are trying new tactics couched in domestic law, though inspired by international law? Do you think it is even necesary for the judges to be cognizant of the international legal argument, as long as the result is the desired outcome?