by Lisa Tortell. Oxford, UK: Hart Publishing, 2006. 236pp. Hardback. £48.00/$100.00. ISBN: 9781841135113.
Reviewed by Srini Sitaraman, Assistant Professor, Department of Government and International Relations, Clark University, Worcester, MA. Email: SSitaraman [at] clarku.edu.
MONETARY REMEDIES FOR BREACH OF HUMAN RIGHTS is a fascinating comparative study of the domestic cause of action for securing monetary remedial measures for violation of fundamental rights, constitutional rights, or basic human rights in three countries – United States, New Zealand, and India – with an exploratory chapter devoted to the potential application of the legal measures developed in these three countries to the United Kingdom and its implication for common European human rights law. Although the book is about monetary remedies, the author, Lisa Tortell, does not examine the necessity, desirability, or effectiveness of monetary remedial measures per se. Instead she concentrates on the ‘cause of action’ by identifying the common and unique legal features in United States, New Zealand and India and focuses on the trend towards cross-jurisdictional convergence of these remedies. Tortell is particularly inspired by emerging literature on transjudicial relations – communication across and between national and supranational courts – in which legal developments in one country are translated or applied to other countries. The larger claim here is based on the belief that exciting legal developments in one country are no longer geographically bound, but that they are increasingly by-products of transnational learning and cross-border legal fertilization. To this extent, Tortell wants to examine the process of monetary remedies for human rights violations in three countries that share common British colonial and linguistic heritage, English common-law influences, and a democratic political system.
Tortell cleverly avoids the terminological minefield surrounding the question of what exactly constitutes a human rights violation and what is a monetary remedy for such breaches by lumping together human rights, constitutional rights, basic rights, and fundamental rights; similarly, she relies on the concept of monetary remedy, instead of trying to distinguish among compensation, damages, reparations, or monetary award. Now, the usage of the term ‘monetary remedy’ to describe awards sanctioned by the courts for human rights violations across different nation-states is an effective strategy. However, equating constitutional rights, fundamental or basic rights, and human rights seems bit problematic. Tortell should be commended for avoiding the pitfalls of being drawn into terminological battles over the definition of what exactly qualifies as a human rights violation and what does not. However, one can contend that egregious violation of human rights such [*139] as genocide, slavery, torture, rape, beatings, unlawful detention, denial of medical services, and other types of physical harm are qualitatively different when compared to breaches of constitutional rights in instances such as the failure to obtain a proper search warrant while conducting home searches or other such invasions of privacy by governmental agencies. Granted, in both instances there has been a breach of law by governing authorities causing distress to citizens. But, because of the significant variations in degree of human rights violations, one could potentially make a case for drawing qualitative distinctions among different types of violations that would have a differential causal effect on the legal outcome and monetary remedies. We could presume that the more egregious the human rights infringement, monetary penalties will be appropriately steeper, but that always has not been the case because of variations in the cause of action jurisprudence among the three country cases under examination.
Tortell, however, cannot be criticized for her desire to sidestep this definitional issue because the interdisciplinary field of human rights has not yet determined how to rank and differentiate among the vast array of positive and negative rights that generally tend to get lumped together under the label ‘human rights,’ thus masking the variations and complexity of human rights issues across the 192 states in the international system. Nonetheless, the problem persists as to whether the BIVENS case in the United States and BAIGENT’s case in New Zealand are equivalent and comparable to the KHATRI and RUDUL SAH cases in India. BIVENS involved violation of fourth amendment constitutional rights against unreasonable searches and seizures when it was alleged that six federal agents had arrested and unlawfully searched the home of the plaintiff without an arrest warrant or probable cause. Similarly in the BAIGENT’s case in New Zealand, a warrant was executed to search the home of a suspected drug dealer. However, even when it was discovered in mid-search that the police had the wrong address, the action was not halted; instead the agents continued with the search despite their new understanding. The KHATRI case involved systematic blinding of prisoners in a state prison, and in RUDUL SAH, the petitioner was not released from police custody for 14 years after the court had formally acquitted him of the crimes charged. Both the Indian cases identify instances of egregious and gross violation of human rights that do not seem to be commensurate with BIVENS or BAIGENT, which involved unreasonable searches and seizures. Enormous variations in the context and scale of human rights violations definitely present some troublesome definitional and comparative analytical challenges when comparing cases from United States, New Zealand, and India under the rubric of monetary remedies for breach of human rights.
Another not immediately evident aspect of Tortell’s book is that it is less about the validity, effectiveness, or the quantum of monetary remedies, but principally, it addresses the cause of action or the legal claim, which determines the causes and conditions under which individuals could seek monetary redress for breach of their rights in domestic courts. The book is entirely focused on legal analysis of [*140] cause of action; it is not an inquiry into various types of human rights violations and the quantum of monetary remedies, and its legal and moral impact. Put differently, this book is about the comparative analysis of the common cause of action claims in different countries and less about human rights violations per se. The bulk of the book is devoted to the issue of ‘cause of action’ that determines the range of governmental bodies and individuals serving in their official capacities who are legally liable for rights breaches. One more clarification is warranted. Tortell is only interested in studying the public cause of action in instances of human rights infringements and does not consider private causes of action (torts), which has a well-established and highly developed jurisprudence particularly in the United States. In other words, the key question that this book examines concerns the conditions under which public officials serving in their official capacities for governmental agencies could be sued for conduct that results in the breach of human rights. As Tortell puts it, “the defendant . . . must be a state actor and the breach must be caused by the exercise of a public right or privilege or a state-imposed rule of conduct, or by a person for whom the state is responsible” as exemplified by the case of the United States (p.100). The first three chapters are devoted to the structure and organization of cause of action in three jurisdictions – United States, India, and New Zealand. Two chapters in the middle section are devoted to comparative analysis of the structure of cause of action in the three country cases, and the last section consists of extension of the framework of analysis to consider the “cause of action for breach of human rights sounding in the monetary remedy in England, contained in Section 8 of the Human Rights Act of 1998” (p.181).
Out of the eight chapters, the two core chapters in the middle of the book are exclusively devoted to the structure and overarching influences of cause of action. In Chapter Five, Tortell poses and answers the following questions: (1) what does the cause of action protect, (2) whom does the cause of action protect, (3) against whom is the cause of action directed, and (4) what does the court order. In Chapter Six, Tortell extends the analysis to examine the overarching transboundary implications of cause of action and its consequent remedies by posing four fundamental questions: (1) what is the source of the cause of action, (2) what is the age of the cause of action, (3) what is the wider context of the cause of action, and (4) what is the internal context of the cause of action.
The fifth and sixth chapters are quite comprehensive and are the two most interesting and central chapters, which illuminate the complexities, commonalities, and unique features of the legal systems in United States, India, and New Zealand. It is not particularly surprising, as Tortell reports, that in the United States, monetary remedies for breach of human rights is a well-developed product of an established judicial system and generated by the evolution of the US Constitution over two centuries accompanied by strong rights jurisprudence. The important corollary that Tortell correctly observes is that the United States has also developed a complex and intricate set of procedural rules governing the process and scope of claims that can be brought for trial. Importantly, in the United [*141] States, it is necessary to demonstrate that the injury is concrete and not speculative, was caused by the defendant’s conduct, and that the injury is redressable in a court of law (p.97). This means that there must be demonstrable fault before the court holds those serving in official capacity to be liable. In comparison, both India and New Zealand have not established procedural rules governing the scope and conditions under which breach of rights claims can be presented before the court. The relative newness of human rights jurisprudence in New Zealand and the stable socioeconomic and political climate has not necessitated any urgency in the development of rigorous standing rules. That, however, is not the case in India, where an expansive array of legal claims for the breaches of various rights is litigated through the public interest litigation (PIL) mechanism. India is particularly interesting because of the wide latitude the courts have afforded themselves in entertaining a broad variety of cases under Article 32 and Article 226 of the Indian Constitution ranging from increases in railway fares and violation of traffic laws to breaches of human rights. It is easier to establish cause of action through public interest litigation and secure remedy in India compared to the United States because of its strict procedural rules and qualified immunities. Nonetheless, it is clear that not every public interest case results in a successful outcome and leads to monetary remedies; nor has litigation produced a body of jurisprudence enabling specific and clear pathways for establishing proper human rights legal claims. This point is not sufficiently emphasized by the author, who is more focused on the contours and process of cause of action, and on drawing broader conclusions using the three country case studies.
What has happened in India is that an activist court with an expansive definition of legal claims has become an aggressive player in directing public policy, allowing a broad array of public ills to be litigated to strengthen governance and improve the effectiveness of various governmental agencies. Indian courts, Tortell writes, have “developed an ‘epistolary jurisdiction’ by relaxing rules of procedure to allow a broader range of cases to be presented before the court (p.93). The author is indeed accurate in pointing out that such latitude in the range of accepted cases and the lack of standing rules are intentional because of India’s low human development index. Legal complexity and strict procedural rules will increase the potential for disproportionate impact on individuals with lower levels of literacy (p.160). In other words, procedural rules limiting public interest lawsuits are deliberately relaxed to enable legal redress to all sectors of the population by reducing the complexity of laws and procedures. Although the expansion of public interest litigation is a welcome development, it is not entirely clear if this is sufficient to protect a broad range of human rights abuses. Public interest litigation in India is not an exclusive or sufficient remedy for human rights breaches when compared to the Bill of Rights remedies in New Zealand, and the Section 1983 and BIVENS cause of action in the United States. It seems that public interest litigation is restricted in what it can achieve because it functions as a grab-bag serving multiple purposes, such as governing the content or conduct of public policies and implementation of laws, [*142] compelling governmental authorities to perform their public duty with diligence and without corruption, and protecting against the infringement of religious or other constitutional rights. Compared to the United States, the deterrent impact and the punitive effect of public interest litigation on human rights violations might be inadequate. India direly needs specific and targeted human rights laws, maybe even a separate human rights court, to construct remedies and confront widespread abuse of constitutional rights, fundamental breaches of law, and systematic human rights violations as evidenced by the KHATRI and RUDUL SAH cases.
The bigger conclusion that Tortell draws from the comparative analysis is that there is a growing movement towards development of international human rights common law, demonstrated by the evolutionary trend towards the convergence in United States, New Zealand, and India, even with significant local variations in the structure and process of cause of action inspired by globalization and comparative legal learning (p.150). Despite differences in the local conditions, she argues that the cause of action across different states are “intrinsically and subtly attracted to similarity,” which suggests progress towards a “common international human rights norm” that also affects the “general mood of the cause of action as a whole” (p.151). It is difficult not to agree with this conclusion, and the general trend that seems headed towards a broad normative convergence on global human rights. A bit more space and effort could have been devoted to exploring how the micro processes of comparative legal learning and globalization generates this trend towards convergence both in the area of norms and cause of action. Why is convergence occurring, and why are states eager to mimic each other? To be fair, Tortell does not set out to answer these questions; she is more interested in showing the parallels in cause of action in different national jurisdictions in instances of human rights breaches.
Overall, Tortell does a thorough and careful job of analyzing the process of submitting legal claims for human rights violations, notwithstanding some redundancies in the discussion of cause of action in United States, New Zealand, and India. Legal scholars, social scientists, and graduate students interested in comparative law, human rights, and transnational legal learning will benefit immensely from MONETARY REMEDIES FOR BREACH OF HUMAN RIGHTS.
BIVENS v. SIX UNKNOWN FEDERAL NARCOTICS AGENTS, 403 U.S. 388 (1971).
KHATRI v. STATE OF BIHAR (1981) 1 SCC 627.
RUDUL SAH v. STATE OF BIHAR AIR 1983 SC 1086.
SIMPSON v. ATTORNEY-GENERAL [BAIGENT’S CASE],  3 NZLR 667.
© Copyright 2008 by the author, Srini Sitaraman.