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Publication Date

January 2002


This is a comment on an article by Professor Burt Neuborne, in which he describes in detail the Holocaust assets litigation against Swiss, German, Austrian, and French corporations. In the comment, I attempt to put that litigation episode into the larger context of human rights enforcement through civil litigation in United States courts as seen from a theoretical concept drawn from international relations theory. I then try to gain some insights into such civil human-rights litigation from the Holocaust cases.

I conclude that the Holocaust-era litigation has done considerable good by creating a vast pool of assets for distribution among victims of the Holocaust whose claims had been submerged by the politics of the Cold War. At first blush, the litigation also appears to support the theory that granting individuals standing to sue for human-rights violations in national courts improves enforcement of human rights. Upon closer examination, however, the picture is less clear: All of the Holocaust cases were settled. Moreover, few, if any, of them led to pronouncements on the difficult questions of international human rights law at issue, thus leading one to wonder whether human rights were effectively enforced here. While Americans may insist that the settlements were surely negotiated "in the shadow of the law," the relevant actors in the European countries involved are convinced, and the evidence in these cases is quite strong, that the settlement outcomes were less the result of international law than of U.S. power. As I demonstrate, this perception may have considerable costs. It may breed resentment, which, in turn, may affect outcomes in cases and issue areas in which the United States and its litigants do not have the upper hand. It may also lead to protective action abroad that renders pursuing human rights claims more difficult, both in the United States and elsewhere. We are thus faced with a paradox: The same features that make civil litigation in the United States particularly attractive to human rights claimants - its ability to create new remedies, judicial discretion, liberal pleading, class actions, and the ability of parties to join every conceivable claim - may also make it ineffective in enforcing human rights and in fashioning new human rights norms, particularly when combined with measures by other branches of government. These are issues that need to be considered carefully by scholars in law and international politics when conceiving and empirically testing theories about the role of law and procedure in the behavior of nation states, groups, and individuals in the international sphere.

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Washington University Law Quarterly

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