Damages Remedies for Infringement of Human Rights under U.S. Law

Document Type

Article

Publication Date

2014

Abstract

The laws of the United States provide damages remedies for some acts—primarily but not exclusively by state actors—that infringe many internationally recognized human rights. They mostly do so without specific reference to or incorporation of international human rights law or norms. In domestic cases, U.S. law provides damages remedies for human rights violations primarily through general laws concerning civil rights, constitutional torts and tort or tort-like suits against state entities and officials. In engaging international human rights law, particularly treaties, the United States generally has claimed that domestic law meets applicable international human rights standards and is adequate to fulfill the relevant international obligations of the United States. A handful of exceptional laws—including principally the Alien Tort Statute and the Torture Victim Protection Act—provide remedies specifically for human rights violations where the case involves a transnational element, including some cases of harms committed outside the United States, by foreign defendants, or against foreign victims. Some of these civil cases have relied on a venerable but limited principle of U.S. law that provides for reception of the customary international law of human rights into federal common law. Other features of U.S. law—principally those governing state and official immunity in domestic and transnational cases, and judicial restraint in cases involving foreign affairs and political questions—limit damages remedies that might otherwise be available for infringements of human rights.

Publication Title

American Journal of Comparative Law

Publication Citation

62 Am. J. Comp. L. (Supp.) 457 (2014)

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