Assessing the Potential Impact of the Proposed Hague Jurisdiction and Judgments Convention on Human Rights Litigation in the United States

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INTRODUCTION

On September 25, 2000, a Manhattan jury in federal court ordered former Bosnian Serb wartime leader Radovan Karadzic to pay $4.5 billion in damages to victims of war crimes committed in the early 1990s war in the former Yugoslavia.(1) A few weeks earlier, another New York jury rendered a judgment against Karadzic for $745 million in a lawsuit focusing on crimes against women in the war.(2) Despite the seriousness of the cases and the size of the judgments, the plaintiffs may never collect even a portion of the judgments because of the difficulty of enforcement in foreign countries, where Karadzic is more likely to have his assets. While one of the plaintiffs explained that the verdict was less about money and more about exposing the atrocities of the war, other similar judgments have been only symbolic gestures as well, because plaintiffs were unable to collect.(3)

One of the impediments preventing the Karadzic plaintiffs from collecting is the probability that many foreign countries where Karadzic might have assets would refuse to recognize or enforce the judgments.(4) While the Full Faith and Credit Clause of the United States Constitution requires that judgments rendered in one state be enforceable in any other state of the Union,(5) the United States is party to no international agreement with a similar provision allowing the automatic enforcement and recognition of judgments in foreign courts.(6)

The Hague Conference on Private International Law is drafting a convention that could change the outlook of future judgments similar to those in the Karadzic cases. The proposed Hague Convention on International Jurisdiction and Foreign Judgments in Civil and Commercial Matters(7) ("proposed convention") would allow the same kind of automatic recognition and enforcement of judgments in courts of different countries that the Full Faith and Credit Clause allows among the United States. The proposed convention has a number of goals, including increasing the certainty and reliability with which civil and commercial judgments will be recognized and enforced around the world.(8) As a result, it could dramatically enhance the effectiveness of judgments by making them enforceable in all of the countries who sign on.

The proposed convention, however, might be drafted in a way to hinder cases like those against Karadzic. The cases against Karadzic were based on the Alien Tort Claims Act(9) (ATCA), a law as old as the United States Constitution itself and the subject of much debate, and the more recent Torture Victim Protection Act(10) (TVPA). The proposed convention may hinder the ability of plaintiffs to use the ATCA and the TVPA at all.

The proposed convention's potential negative effect on ATCA and TVPA litigation stems from its prohibition of certain "exorbitant grounds" of jurisdiction often used by plaintiffs in these cases, namely transient or "tag" jurisdiction. Transient or "tag" jurisdiction is personal jurisdiction based solely on the physical presence of the defendant in the territory, even if the presence is wholly unrelated to the litigation in question.(11) Because alleged human rights violators often have no other contacts with the United States to maintain jurisdiction, human rights litigants often rely upon tag jurisdiction in the event the defendant happens to be physically present in the territory.(12) Prohibiting tag jurisdiction, therefore, might effectively curtail ATCA and TVPA cases.

The current version of the proposed convention does contain an exception protecting potential cases involving allegations of human rights violations.(13) Thus, the proposed convention, depending on how it is interpreted, has the potential to have no effect on or to enhance ATCA and TVPA cases. Even in its current form, however, the proposed convention could negatively impact ATCA and TVPA litigation. Moreover, the proposed convention is still being negotiated, and a final draft could accept, reject, or modify the prohibition on tag jurisdiction and the exception for human rights cases. …