Class Actions and Mass Tort Litigation in a Global Context Professor Linda S. Mullenix

1. Class Actions and Mass Tort Litigation in a Global ContextProfessor Linda S. Mullenix Human Rights Class Actions

2. Human Rights Class Actions • Questions: • Are human rights violations a type of claim suitable for collective resolution? Why? • What makes human rights violations different than other types of harms? Different than tort injury? Purely economic injury? • What are the problems involved with prosecuting human rights violations?

3. Human Rights Class Actions • Questions: • Who, or what institutions should address human rights violations? • Are international organizations or commissions the appropriate venues for resolving human rights claims? • Can human rights claims be resolved by individual nation-state judicial authorities? • Can United States courts adjudicate human rights claims?

4. Human Rights Class Actions • Questions: • What are the authorities or sources of law for adjudicating human rights violations? • What types of remedies are appropriate for human rights violations? • Is the American class action rule a good procedural means for resolving human rights violations?

5. Human Rights Class Actions • Prof. William J. Aceves, Actio Popularis? The Class Action in International Law, U. Chi. Legal Forum (2003): • Theses: • Class action designation in human rights cases provides plaintiffs with several advantages • International law and international tribunals have rejected the concept of actio popularis for resolving group harms • The possibility of group litigation in international institutions is very limited • Class action litigation faces significant hurdles before international institutions • The American class action rule provides the best possibility for resolving human rights litigation

6. Human Rights Class Actions • Prof. William J. Aceves, Actio Popularis? The Class Action in International Law, U. Chi. Legal Forum (2003): • Theses: • “This article posits that international law should expand locus standi requirements to allow class action designation for individuals in international institutions.”

7. Human Rights Class Actions • Prof. William J. Aceves, Actio Popularis? The Class Action in International Law, U. Chi. Legal Forum (2003): • Theses: • “By applying the criteria of Federal Rule of Civil Procedure 23 to group litigation, international institutions can take advantage of the rigors and efficiencies of class action litigation without resorting to the liberal locus standi of an actio popularis.”

8. Human Rights Class Actions • Prof. William J. Aceves, Actio Popularis? The Class Action in International Law, U. Chi. Legal Forum (2003): • Class action designation in human rights cases provides plaintiffs with several advantages: • Individuals unlikely to bring own claims • Atrocities committed against hundreds or thousands of victims • Victims impoverished and isolated • Class designation permits single proceeding, reduces transaction costs, promotes efficiency • May be only realistic option for redress • Provides degree of anonymity to victims

9. Human Rights Class Actions • Prof. William J. Aceves, Actio Popularis? The Class Action in International Law, U. Chi. Legal Forum (2003): • International law and tribunals have rejected the concept of actio popularis for resolving group harms • From Roman law: actio popularis action brought by individual on behalf of public interest • International tribunals reject actio popularis actions: individual applicant must be direct victim of purported violation • Efforts by applicants to represent interests of broader group or class unsuccessful

10. Human Rights Class Actions • Prof. William J. Aceves, Actio Popularis? The Class Action in International Law, U. Chi. Legal Forum (2003): • International Court of Justice opinions: • Actio popularis alien to international law • Court unable to regard it as imported by the “general principles of law” in Article 38 • Court refused to accept the right in any member of a community to take legal action in vindication of a public interest

11. Human Rights Class Actions • Prof. William J. Aceves, Actio Popularis? The Class Action in International Law, U. Chi. Legal Forum (2003): • International Court of Justice opinions: • However, International Court recognizes obligations erga omnes: international obligations that concern all states • Erga omnes include rules involving basic rights of the human person: • Prohibition against genocide • Prohibition against slavery • Prohibition against racial discrimination • But erga omnes not applied to individuals: no expansion of locus standi for individuals in international institutions

12. Human Rights Class Actions • Prof. William J. Aceves, Actio Popularis? The Class Action in International Law, U. Chi. Legal Forum (2003): • Possibility of group action in international institutions: • United Nations Human Rights Committee • European Court of Human Rights • Inter-AmericanCommission on Human Rights • These three institutions: • Established to protect human rights • Individuals may directly bring claims • Have authority to review state compliance with treaty obligations • Forms of relief: declaratory, compensatory, remedial

13. Human Rights Class Actions • Questions: • How effective are these three institutions in permitting group actions to vindicate human rights violations? • What problems or hurdles do applicants have in attempting to vindicate group rights in these three institutions?

14. Human Rights Class Actions • Prof. William J. Aceves, Actio Popularis? The Class Action in International Law, U. Chi. Legal Forum (2003): • Thesis: • “Preliminary observations reveal that class action litigation faces significant hurdles before these (and other) international institutions. Such claims are often dismissed at the admissibility stage. . .Efforts by individual applicants seeking to represent the interests of broader a broader group or class generally have proven unsuccessful. . .”

15. United Nations Human Rights Committee

16. Human Rights Class Actions • United Nations Human Rights Committee • Authority: International Covenant on Civil and Political Rights (in force 1976)(“ICCPR”) • Recognizes civil and political rights that derive from the inherent dignity of the human person • Bodily integrity; torture; cruel, inhuman, degrading punishment, freedom of religion, expression, fair trial • Constituted 18 experts, 4 year terms • May consider state communications raising violations of ICCPR • May consider individual communications raising violations of ICCPR • Views have no binding force; member states not legally obligated to comply

17. Human Rights Class Actions • Optional Protocol of Human Rights Committee (1976) -- Individual communications subject to admissibility requirements: • Must be submitted by individual (no NGOs, corporations, political parties) • Anonymous communications not recognized • Joinder is possible; each individual communication must meet admissibility requirements • Petitioner must claim to be victim of ICCPR violation (direct and immediate injury) • Must make a prima facie showing of injury • No individual by actio popularis challenge a law or practice contrary to the Covenant • Cannot be under examination by other institution • Individual must have exhausted all domestic remedies; no frivolous or vexatious claims

18. Human Rights Class Actions • United Nations Human Rights Committee: • 104 countries accepted Protocol • Since 1976, approximately 1,123 individual communications • Opinions in 435 cases • Right to file class action complaint not formally recognized in ICCPR or Committee rules and procedures • Few decisions reflect consideration of group litigation (examples in article) • Problem: individual applicants not direct victims of ICCPR violation and cannot pursue relief on behalf of group

19. European Court of Human Rights

20. Human Rights Class Actions • European Court of Human Rights: • Authority: European Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention”) • Adopted by Council of Europe (1950); in force 1953 • Recognizes array of civil and political rights • Revision 1998: Protocol Number 11: consolidates functions in European Court of Human Rights

21. Human Rights Class Actions • European Court of Human Rights: • Complaint submitted to Judge Rapporteur; findings to 3 judge committee; considers admissibility of complaint • Requires unanimous vote of committee • Further proceedings in non-unanimous decisions • Decisions of Court binding

22. Human Rights Class Actions • European Court of Human Rights: • Right of individual application (Article 34 of European Convention): • Persons, NGOs, groups of individuals; corporate bodies, political parties, trade unions • Claim parties to Convention violated Convention rights • No prior consent required; automatic jurisdiction • May order joinder of two or more applications • Permits third-party intervention (limited) • Applicant must be a victim of the violation • May raise claims of potential or threatened harm • May not be before another court or institution • Must have exhausted all domestic remedies • May not be ill-founded or abuse of right of petition

23. Human Rights Class Actions • European Court of Human Rights: • Number of filings: • Between 1955-1999: over 63,000 individual applications • 2000: 10,486 (17% of total) • Relatively few cases involving elements of class action litigation (examples in article) • Distaste for actio popularis form of group litigation • Most such applications found lacking in admissibility requirements: European Convention does not provide individuals with right of actio popularis, to the extent that applicants claimed to act on behalf of other individuals • Convention does not give a victim the power to delegate standing to anyone else

24. Inter-American Commission on Human Rights

25. Human Rights Class Actions • Inter-American Commission on Human Rights (1960): • Authority: American Declaration on the Rights and Duties of Man (“American Declaration”)(1948) • Individuals may present petitions • American Convention on Human Rights (1969); established Inter-American Court of Human Rights: • Authorized to accept petitions alleging violations of the American Convention • No individual petitions • Only petitions by member states • Jurisdiction only over states accepting jurisdiction

26. Human Rights Class Actions • Right of Individual Petition (Inter-American Commission): • No prior consent by state party required • Executive Secretariat initial processing • Petitions by persons, groups, NGOs legally recognized in OAS • Recognizes permissibility of joinder • Must allege violation of American Convention; must allege violation of a human right • Subject matter cannot be pending in other institutional body • Applicant must have exhausted all domestic remedies • Petition must not be groundless, etc.

27. Human Rights Class Actions • Right of Individual Petition (Inter-American Commission): • Victim requirement: • Human person suffers injury in fact to protected right; • Injury proximately caused by illegal act; • Act is imputable to state • Act breaches international obligation • Violation need not have occurred in Inter-Americansystem • Individuals cannot instigate an actio popularis and present a complaint against a law in abstracto

28. Human Rights Class Actions • Inter-American Commission: • Caseload: • Increasing caseload since creation • 1997: 458 petitions • 2001: 718 petitions • Between 1997-2001: 3,045 petitions

29. Human Rights Class Actions • Inter-American Commission: • Some commentators argue provisions of American Convention contemplate class action or actio popularis litigation • Provides more liberal standing than U.N. Human Rights Committee or European Court: • Any persons, group of persons, or NGO may file petition • Case law recognizes several forms of group litigation (examples in article)

30. Summary of Problems with Existing International Human Rights Institutions on Behalf of Group Litigation

31. Human Rights Class Actions • Challenges to Class Litigation in International Arena: • Class action not recognized as a procedural mechanism in international law • Individual applicant cannot file complaint on behalf of other victims (absent specific authorization from each victim) • U.N. Human Rights Committee and European Court make it difficult to pursue group litigation • Establish strict standing requirements ensuring only individual victims can bring claims • However, cases involving rights of indigenous groups provide some analogies to group litigation

32. Human Rights Class Actions • Explanations for Absence of Class Action in International Law: • Traditional focus on rights and obligations of states • State-centric paradigm • Need for class litigation minimized because states can bring actions to remedy violations of international law (state communications) • Other institutions also hear state claims (e.g., International Criminal Tribunal) • Nonstate actors (e.g., NGOs) have ability to bring claims for serious violations in variety of forums

33. Class Actions in International Law for Human Rights Violations?

34. Human Rights Class Actions • Potential Problems of Class Actions in International Law: • How to define class? • Opt-out rights? • How to select class representatives? • Incentives to guide settlement process? • Distribution of damage awards? • Differences in religion, culture, and nationality

35. Human Rights Class Actions Prof. Aceves: “Through the development of a rigorous set of procedural mechanisms, a class action regime could be developed that is both fair and efficient.”

36. Human Rights Class Actions Prof. Aceves: “The Rule 23 requirements seek to ensure that locus standi – the right (and ability) to protect legal interests – exist in principle and practice.”

37. Human Rights Class Actions Prof. Aceves: “Rule 23 would preclude an actio popularis; yet, it would allow other forms of group litigation to proceed.”

38. Human Rights Class Actions • Question: • Why does Prof. Aceves believe that an American-style class action rule would satisfy locus standi principles, while not violating the prohibition against an actio popularis?

39. Human Rights Class Actions • Why Rule 23 would alleviate concerns about group practice in international law: • Would preclude actio popularis • Commonality requirement would permit only claims that sher common facts or law • Typicality would ensure class reps. Have sufficeint interest to represent others • Adequacy requirement would further enhance protections • Would reduce caseloads by bringing multiple claimants together, promote efficiency, reduce delay • More effective than individual claims in highlighting abuses (group complaint shows pattern)

40. Human Rights Class Actions • Aceves conclusion: • “By applying the Rule 23 criteria to group litigation, international institutions can take advantage of the rigors and efficiencies of class litigation without resorting to the liberal locus standi of an actio popularis.”

41. Fine