Christopher A. Whytock and Seth Davis, State Remedies for Human Rights, 98 B.U. L. Rev. 397 (2018).
Within the United States, states are the source of remedies for most legal wrongs. State law provides remedies for common law torts, statutory violations, and constitutional rights, and state courts are available to parties seeking these remedies. May states also provide remedies for the victims of international human rights violations? With the Supreme Court closing the door on human rights litigation in U.S. federal courts under the Alien Tort Statute, and with plaintiffs therefore turning to state courts and state law to redress violations of international human rights, this question has become especially important.
The dominant view among courts and commentators, however, treats human rights remedies as a foreign relations function committed to the federal government. If the federal government decides not to provide these remedies, then, this view holds, states must not provide them either.
This Article challenges that position. It argues that states may provide remedies for international human rights, much as they do for torts and civil rights. States provide law and courts for the redress of wrongs as a matter of course, particularly the types of torts that most human rights litigation addresses. Within the federal system, states have independent authority to provide remedies for legal wrongs. State courts and state law therefore play a fundamental role in fulfilling the aspiration that rights entail remedies. Under state law, federal law, and international law, states have a recognized interest in providing redress for human rights violations. And in many cases, a state’s interest in providing remedies for human rights violations will outweigh the business or foreign relations costs of human rights litigation that are often invoked to deny remedies.
This Article’s theory of state remedies for human rights has doctrinal and normative implications. The proper application of various doctrines that may limit access to state courts or the application of state law requires explicit consideration of the state interest in providing remedies for human rights. Normatively, this Article’s theory of state remedies for human rights provides a justification for doctrinal changes in order to accommodate that interest.