Forum shopping for human rights.

• Jurisdiction: United States
• Author: Helfer, Laurence R.
• Date: 01 December 1999

INTRODUCTION

Individuals have now acquired the power to shape international human rights law. No longer found merely in aspirational or ambiguous treaties with limited practical impact on the lives of the people it was meant to protect, the law of human rights is being refined not only by diplomats or governments but by jurists--neutral arbiters of decidedly legal disputes initiated by individuals. Human rights courts, quasi-judicial tribunals, and treaty bodies (the "tribunals")(1) --including the European and Inter-American Courts of Human Rights; the European, Inter-American and African Commissions of Human Rights; and United Nations treaty bodies such as the Human Rights Committee, Committee Against Torture, and Committee on the Elimination of Racial Discrimination--now regularly adjudicate petitions filed by victims of human rights abuses against national governments that have agreed to subject themselves to scrutiny by the tribunals.

This trend toward individualized adjudication of human rights law started over forty years ago in Europe, and has spread more recently to the Americas and to Africa, as well as to human rights treaties within the United Nations ("U.N."). With the end of the Cold War's geopolitical divisions, the possibility of achieving widespread, if not universal, ratification of these treaties and their individual complaint procedures is within sight.(2) Proposals are now being considered to create new tribunals or complaint procedures for other human rights treaties and to link new treaties to existing procedures.(3) In short, at the end of the twentieth century, many national governments have created a vast and multi-faceted "international human rights petition system" that grants to individuals a widening range of opportunities to vindicate their rights internationally.(4)

Individuals have seized upon these opportunities by filing an increasing number of claims for relief before a panoply of global and regional human rights tribunals. In response, the jurists on these tribunals have developed a rich and nuanced case law that translates abstract legal principles into concrete, fact-specific rulings. Through the repeated adjudication of these individual complaints, a clearer picture of the human rights practices of particular countries has emerged.(5) A growing body of scholarship also suggests that granting individuals the right to challenge States' actions internationally is a critical component of a broader strategy for pressuring the different branches of national governments to adhere to human rights standards.(6)

The important role individuals play in shaping human rights law has been examined before. What has not been studied, however, is how the very same forces that are pushing States to expand the number of tribunals before which individuals can file complaints are also those that have the potential to thwart both the further expansion of the petition system and the development of a coherent human rights jurisprudence. Specifically, individuals in a growing number of recent and heretofore unexamined cases are capitalizing upon the existence of multiple human rights tribunals by "forum shopping" for a favorable decision.

The definition of forum shopping that I use in this Article will be somewhat novel to readers familiar with United States procedural law. What I define as forum shopping is not limited to an individual petitioner's strategic choice to litigate her claims in one of several available adjudicatory fora. It also encompasses other consequential choices engendered by the concurrent, overlapping jurisdiction of human rights treaties and tribunals, including attempts by petitioners to litigate identical or related claims in multiple fora at the same time, and attempts to engage in sequential litigation of claims. As explained more fully below, I refer to these three distinct activities as "choice of tribunal forum shopping," "simultaneous petition forum shopping," and "successive petition forum shopping."

These three types of forum shopping also occur in domestic legal systems.(7) For example, the modern judicial system in the United States seeks to maximize litigants' choices among fora, and even tolerates simultaneous litigation in multiple fora prior to final judgment. Unlike many civil law jurisdictions,(8) however, it strongly discourages claim splitting and relitigation of claims through the use of broad joinder rules and expansive doctrines of res judicata.(9) Once a litigant has been given a full and fair opportunity to raise claims relating to a single transaction or occurrence, she is forever barred from relitigating those claims in another forum.(10) In this way, the American judicial system encourages efficient use of resources, promotes finality of litigation, and limits the possibilities for inconsistent outcomes or relief in the same case.(11)

Litigation in the international human rights petition system is fundamentally different and thus requires a radically different approach to forum shopping. Unlike the United States, where permissive pleading and joinder rules encourage litigants to consolidate their claims in a single forum, petitioners asserting human rights claims are far more procedurally constrained. Nearly all human rights tribunals are empowered only to adjudicate claims arising under the treaty that created them. Claims arising under other treaties--whether those claims relate to identical, similar, or different substantive norms--must be litigated before other tribunals.(12) In this situation, the incentives for petitioners to forum shop for a favorable ruling and the arguments for permitting redundant litigation are considerable.

Notwithstanding the basic differences between domestic and international adjudication, most commentators addressing the forum shopping issue in international human rights literature have viewed simultaneous or successive petition forum shopping as a danger to be suppressed. Specifically, they have argued that allowing more than one tribunal to examine the same individual's petition wastes scarce resources, creates a risk of divergent or conflicting rulings, and threatens to undermine the authority of international tribunals and the jurists who serve on them.(13) This Article questions that conventional wisdom and offers in its place a re-envisioning of the human rights petition system. It argues that forum shopping, if properly regulated, can materially benefit international human rights law.

As I explain more fully below when discussing forum shopping theory, both the interests of individual petitioners and the institutional and normative perspective favor some relitigation of human rights claims. In many instances, for example, successive review by two or more tribunals is the only way that aggrieved individuals can receive a complete review of their claims under all applicable human rights treaties. In addition, forum shopping encourages jurists to engage in a dialogue to elucidate and harmonize the legal norms shared by those treaties--a dialogue that, unlike the U.S. common law, has not adequately developed through litigation of similar factual and legal claims by different petitioners.(14) Finally, by permitting redundant review by multiple tribunals, forum shopping reduces the number of instances in which human rights claims are erroneously denied by jurists.(15)

Relitigation of claims by multiple human rights tribunals is not costless, however. To the contrary, it creates serious finality and efficiency concerns that weigh against permitting relitigation.(16) For these reasons, I develop at the conclusion of this Article a detailed set of control rules that balances the competing theoretical rationales for and against forum shopping and applies those rationales to the heterogeneous range of petitions that individuals are likely to present to the tribunals in the future.(17)

Although the potential for human rights forum shopping has existed for years, four recent developments suggest that it has now become a far more pressing concern.

First, since the end of the Cold War in the early 1990s, human rights tribunals have become increasingly active. The dockets of regional tribunals have been overflowing with new cases and the U.N. human rights tribunals have been receiving an increasing number of petitions from a wider array of nations.(18) With this activity has come a rising number of cases in which individuals have attempted to forum shop by filing petitions with more than one tribunal. In response, the tribunals have issued several recent and conflicting decisions analyzing the conditions under which forum shopping is permitted or prohibited by a particular treaty.(19) These conflicts have created skewed litigation incentives for litigants and States, and make it impossible to predict with any degree of certainty the preclusive effect of one tribunal's decision in subsequent litigation before another tribunal.(20)

Second, together with the increase in forum shopping has come an increasing divergence among the tribunals' case law analyzing the substantive human rights norms. Although differing interpretations might be expected where the texts of two treaties differ, the divergent rulings have in fact occurred in cases involving rights that are defined identically, or nearly so, in two or more treaties. These decisions have generated fresh incentives for forum shopping by individuals seeking out the tribunal with the most rights-protective case law in which to litigate their claims. They have also created uncertainty for individuals and governments seeking to incorporate the tribunals' decisions into national law.

Third, since the 1993 World Conference on Human Rights, the United Nations has advanced several proposals to create new individual petition procedures for several existing and new human rights treaties. In their present form, these proposals would increase the number of venues in...