comes to the question of doing so in a neutral, international body designed for this purpose,
states do not wish to give up sovereignty by setting up a solid international regime, even if
enforcement of human rights is faltering.
Assuming that states consciously are refraining from pushing for stronger international human rights protections, one might ask if there is a tension between the rights of people and
the interests of the state.
46
But is this the end of the story? Might private actors be brought into the equation?
Shifting the Emphasis to Private Actors
Again, in the traditional international system, states have not wanted to negotiate treaty terms
to hold companies and other private actors accountable for human rights violations. Generally
speaking, states see a sovereign interest in mediating between persons under their jurisdiction and persons elsewhere (including juridical persons). In the filtering context, the home government does not want to pressure its own citizens or companies, even if the state generally
favors freedom of expression; meanwhile, the host government often is trying to compel companies to repress freedom of expression (or simply withdraw from its market). Under these
conditions, there is little to bring such states to the negotiating table in the name of freedom
of expression.
Given the increasingly governmental role played by private actors—for example, providing
the means for Internet filtering, or carrying out such filtering themselves—many groups are
now seeking ways to hold these private actors accountable. The possibility, in some jurisdictions, of bringing entities before domestic courts for involvement in human rights violations in
a third country has received significant attention as a potential tool for protecting the right to
freedom of expression in the face of restrictive filtering practices.
The United States’ Alien Tort Claims Act
Usually domestic courts will concern themselves only with the application of domestic law and
will not consider cases that allege violations of international law. Despite this predominant
practice, some countries have adopted legislation to allow domestic courts to consider cases
arising under international law. Legal systems that do so to a greater or lesser degree incorporate international law into domestic law. Perhaps the best example of such a process is the
United States’ Alien Tort Claims Act (ATCA). Passed in 1789, ATCA provides U.S. federal
courts with jurisdiction to award damages where an alien sues for a tort (i.e., a civil wrong)
committed in violation of ‘‘the law of nations’’ or ‘‘a treaty of the United States’’—even if the
wrong occurred outside the United States.
While the ATCA has been on the statute books for more than two centuries, it is only in the
past twenty-five years that it has sprung to life.
47 This vitalization occurred largely as a result
of a 1980 Federal Appeals Court decision that held that the ‘‘law of nations’’ included
Filtering and the International System
91
states do not wish to give up sovereignty by setting up a solid international regime, even if
enforcement of human rights is faltering.
Assuming that states consciously are refraining from pushing for stronger international human rights protections, one might ask if there is a tension between the rights of people and
the interests of the state.
46
But is this the end of the story? Might private actors be brought into the equation?
Shifting the Emphasis to Private Actors
Again, in the traditional international system, states have not wanted to negotiate treaty terms
to hold companies and other private actors accountable for human rights violations. Generally
speaking, states see a sovereign interest in mediating between persons under their jurisdiction and persons elsewhere (including juridical persons). In the filtering context, the home government does not want to pressure its own citizens or companies, even if the state generally
favors freedom of expression; meanwhile, the host government often is trying to compel companies to repress freedom of expression (or simply withdraw from its market). Under these
conditions, there is little to bring such states to the negotiating table in the name of freedom
of expression.
Given the increasingly governmental role played by private actors—for example, providing
the means for Internet filtering, or carrying out such filtering themselves—many groups are
now seeking ways to hold these private actors accountable. The possibility, in some jurisdictions, of bringing entities before domestic courts for involvement in human rights violations in
a third country has received significant attention as a potential tool for protecting the right to
freedom of expression in the face of restrictive filtering practices.
The United States’ Alien Tort Claims Act
Usually domestic courts will concern themselves only with the application of domestic law and
will not consider cases that allege violations of international law. Despite this predominant
practice, some countries have adopted legislation to allow domestic courts to consider cases
arising under international law. Legal systems that do so to a greater or lesser degree incorporate international law into domestic law. Perhaps the best example of such a process is the
United States’ Alien Tort Claims Act (ATCA). Passed in 1789, ATCA provides U.S. federal
courts with jurisdiction to award damages where an alien sues for a tort (i.e., a civil wrong)
committed in violation of ‘‘the law of nations’’ or ‘‘a treaty of the United States’’—even if the
wrong occurred outside the United States.
While the ATCA has been on the statute books for more than two centuries, it is only in the
past twenty-five years that it has sprung to life.
47 This vitalization occurred largely as a result
of a 1980 Federal Appeals Court decision that held that the ‘‘law of nations’’ included
Filtering and the International System
91