The marriage between CIL and IHR has delivered some good business practices and government policies.
But it seems like an unstable marriage, even with the 31st wedding anniversary coming up. Scholars Bradley[1. Curtis A. Bradley, The Costs of International Human Rights Litigation, 2 Chi. J. Int’l L. 457 (2001).] and Slaughter & Bosco[2. Anne Marie-Slaughter and David Bosco, Plaintiff’s Diplomacy, Foreign Affairs, Sep/Oct 2000, available at https://www.princeton.edu/~slaughtr/Articles/PlaintiffFA.txt (article, para. 6).] point to the 2nd Circuit’s 1980 decision, Filartiga v. Pena-Irala[3. Case Cite, 630 F.2d 876 (2d Cir. 1980).] as the beginning of a union between CIL and IHR through the Alien Tort Statute litigation in US courts. Yet, 30 years later, the very same court, albeit with different judges, supported a divorce of IHR, as violated by a corporation, from CIL in Kiebel v Royal Dutch Petroleum.[4. Case Cite, 621 F.3d 111, 111-23 (2d Cir. 2010).]
So which “spouse”, CIL or IHR, is most responsible for their marriage problems? Maybe that’s an unfair question given that both CIL and IHR come from very different backgrounds and are just trying to do the best they can with an arranged marriage. CIL comes from centuries of “general and consistent practice of states followed by them from a sense of legal obligation”.[5. Rest. 3rd of US Foreign Relations Law; see The Paquete Habana.] IHR and its universal recognition come from a much more modern age – beginning with the United Nations Charter of 1945.[6. See Filartiga.]
Nevertheless, CIL does seem unstable. CIL has two personalities: traditional and modern. The traditional view of CIL emphasizes the importance of state-by-state consent and state-to-state practice which makes the development of law a long, drawn-out process.[7. Case Cite, The Paquete Habana.] But the modern view emphasizes UN resolutions and multilateral treaties that govern state-to-state and state-to-citizen interactions which makes the development of law a quicker process e.g. self-executing treaties.[8. Case, Cite, Filartiga.] It’s hard for IHR, sometimes, to keep up with CIL’s personality changes.
Moreover, since this marriage was arranged exclusively by the courts, the courts get to dictate many of the terms of the marriage. For example, a court can limit the interaction between CIL and IHR by using other judicial arrangements like the political question and act of state doctrines.[9. Case Cite, 2 Chi. J. Int’l L. 466 (2001); Banco National de Cuba v. Sabbatino, 376 U.S. 398 (1964).]
Maybe the time has come for supporters of the marriage between CIL and IHR to help them reaffirm their wedding vows through more non-judicial “ceremonies’ (e.g. diplomatic means)[10. Consider the US-German government compensation agreement of $5 billion to concentration camp slave laborers used by German corporations during the Nazi-era. Anne Marie-Slaughter and David Bosco, Plaintiff’s Diplomacy, Foreign Affairs, Sep/Oct 2000, available at https://www.princeton.edu/~slaughtr/Articles/PlaintiffFA.txt (article, para. 16)] while also keeping CIL’s personality in check through judicially-supervised “stay-cations” (e.g. alternative dispute resolution mechanisms that deal with human rights violation at the root level — focusing more on a complainant’s obligation to exhaust local remedies, and less on the application of CIL, especially if the violation does not involve universally-recognized war crimes).
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